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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 6, 1999
REGISTRATION NO. 333-71965
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
CABLEVISION SYSTEMS CORPORATION
CSC HOLDINGS, INC.
CSC CAPITAL I
CSC CAPITAL II
CSC CAPITAL III
(Exact name of each registrant as specified in its charter)
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<S> <C>
DELAWARE 11-3415180
DELAWARE 11-2776686
DELAWARE TO BE APPLIED FOR
DELAWARE TO BE APPLIED FOR
DELAWARE TO BE APPLIED FOR
(State or other jurisdiction of (IRS employer
incorporation or organization) identification numbers)
</TABLE>
1111 STEWART AVENUE
BETHPAGE, NEW YORK 11714
(516) 803-2300
(Address, including zip code, and telephone number, including
area code, of registrants' principal executive offices)
--------------------------
ROBERT S. LEMLE
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
1111 STEWART AVENUE
BETHPAGE, NEW YORK 11714
(516) 803-2300
(Name, address, including zip code, and telephone number,
including area code, of agent for service of each registrant)
--------------------------
WITH COPIES TO:
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JOHN P. MEAD JONATHAN JEWETT
SULLIVAN & CROMWELL SHEARMAN & STERLING
125 BROAD STREET 599 LEXINGTON AVENUE
NEW YORK, NEW YORK 10004 NEW YORK, NEW YORK 10022
</TABLE>
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME
TO TIME AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE AS DETERMINED IN THE
LIGHT OF MARKET CONDITIONS.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "SECURITIES ACT"), other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /________________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
--------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
SUBJECT TO COMPLETION, DATED APRIL 6, 1999
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL NOR DOES IT SEEK AN OFFER TO BUY THESE SECURITIES IN ANY JURISDICTION
WHERE THE OFFER, SOLICITATION OR SALE IS NOT PERMITTED.
<PAGE>
PROSPECTUS
$1,500,000,000
CABLEVISION SYSTEMS CORPORATION
CSC HOLDINGS, INC.
DEBT SECURITIES
PREFERRED STOCK
CSC CAPITAL I
CSC CAPITAL II
CSC CAPITAL III
PREFERRED SECURITIES, FULLY AND UNCONDITIONALLY
GUARANTEED, AS DESCRIBED HEREIN, BY
CABLEVISION SYSTEMS CORPORATION
OR
CSC HOLDINGS, INC.
Cablevision Systems Corporation and CSC Holdings, Inc. may offer and sell
debt securities, shares of preferred stock or depositary shares representing
fractions of shares of preferred stock. CSC Capital I, CSC Capital II or CSC
Capital III may offer and sell preferred securities representing undivided
beneficial interests in the assets of such entity. These securities may be
offered and sold from time to time for an aggregate offering price of up to
$1,500,000,000.
We will provide the specific terms and the initial public offering prices of
these securities in supplements to this prospectus. This prospectus may not be
used to sell securities unless accompanied by a prospectus supplement. WE URGE
YOU TO READ CAREFULLY THIS PROSPECTUS AND THE ACCOMPANYING PROSPECTUS
SUPPLEMENT, WHICH WILL DESCRIBE THE SPECIFIC TERMS OF THE SECURITIES OFFERED,
BEFORE YOU MAKE YOUR INVESTMENT DECISION.
INVESTMENT IN THE SECURITIES INVOLVES SIGNIFICANT RISKS. READ THE SECTION
CAPTIONED "RISK FACTORS" BEGINNING ON PAGE 7 TO LEARN ABOUT CERTAIN FACTORS YOU
SHOULD CONSIDER BEFORE INVESTING IN THE SECURITIES.
---------------------
Neither the Securities and Exchange Commission nor any other regulatory body
has approved or disapproved of these securities or passed upon the adequacy or
accuracy of this prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is , 1999
<PAGE>
TABLE OF CONTENTS
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PAGE
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About This Prospectus..................................................... 2
Where You Can Find More Information....................................... 2
Cablevision............................................................... 5
CSC Holdings.............................................................. 5
The Trusts................................................................ 5
Risk Factors.............................................................. 7
Use of Proceeds........................................................... 15
Ratio of Earnings to Fixed Charges and Preferred Stock Dividends and
Deficiency of Earnings Available to Cover Fixed Charges and Preferred
Stock Dividends......................................................... 15
Description of the Securities We May Offer................................ 16
We May Offer Debt Securities.............................................. 18
We May Offer Preferred Stock, Which May Be Offered in the Form of
Depositary Shares Representing Fractional Shares of Preferred Stock..... 35
We May Offer Preferred Securities......................................... 46
Description of the Preferred Securities................................... 46
Description of the Junior Subordinated Debt Securities.................... 59
Relationship Among Preferred Securities, Junior Subordinated Debt
Securities, Guarantee and Expense Agreement............................. 70
Accounting Treatment of Preferred Securities.............................. 72
U.S. Federal Income Tax Consequences Relating to Preferred Securities..... 72
Plan of Distribution...................................................... 77
Validity of the Securities................................................ 78
Experts................................................................... 78
</TABLE>
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement filed by Cablevision
Systems Corporation ("CABLEVISION"), CSC Holdings, Inc. ("CSC HOLDINGS") and CSC
Capital I, CSC Capital II and CSC Capital III (the "TRUSTS") with the Securities
and Exchange Commission (the "COMMISSION") using the Commission's "shelf"
registration rules. Under the shelf registration rules, using this prospectus,
together with a prospectus supplement, Cablevision, CSC Holdings and the Trusts
may sell from time to time:
- CSC Holdings' debt securities, which may be either senior or subordinated
debt securities;
- Cablevision's or CSC Holdings' preferred stock, which may be issued in
fractional form as depositary shares evidenced by depositary receipts;
- Cablevision's or CSC Holdings' junior subordinated debt securities;
- any one of the Trusts' preferred securities, which represent undivided
beneficial interests in the assets of the issuing Trust; and
- Cablevision's or CSC Holdings' guarantees for the benefit from time to
time of holders of the preferred securities.
Any one of the Trusts may also issue common securities, which represent
undivided beneficial interests in the assets of the issuing Trust, to
Cablevision or CSC Holdings. The issuing Trust will use the proceeds from any
sale of preferred securities and common securities to buy junior subordinated
debt securities from Cablevision or CSC Holdings with terms that correspond to
those of the preferred securities and common securities. If a Trust sells
preferred securities and common securities, Cablevision or CSC Holdings, as the
case may be, will pay principal and interest on the junior subordinated debt
securities to the issuing Trust (subject to the payment of its more senior debt
and subject to its right to defer interest payments), which the issuing Trust
will distribute as dividends on the preferred securities and common securities.
Cablevision or CSC Holdings, as the case may be, will fully and unconditionally
guarantee the Trust's obligations on the preferred securities based on the
combined effect of certain agreements described in this prospectus and may
choose to distribute PRO RATA the junior subordinated debt securities to the
holders of the preferred securities and common securities if Cablevision or CSC
Holdings, as the case may be, terminates the Trust.
This prospectus provides you with a general description of the securities.
Each time we sell the securities, we will provide a prospectus supplement that
will contain specific information about the terms of that offering. For
simplicity, we will refer to Cablevision and CSC Holdings interchangeably as the
"ISSUER" (and collectively as the "ISSUERS") throughout this prospectus to refer
to the entity that is issuing the preferred stock (or, in the case of preferred
securities, the entity that is purchasing the common securities of the issuing
Trust and issuing the relevant junior subordinated debt securities). In the case
of debt securities other than junior subordinated debt securities, the term
"Issuer" refers to CSC Holdings. We will also refer to "Cablevision" to mean
Cablevision and its consolidated subsidiaries and "CSC Holdings" to mean CSC
Holdings and its consolidated subsidiaries, in each case, unless the context
requires otherwise. The prospectus supplement may also add, update or change
information contained in this prospectus. We urge you to read carefully this
prospectus, the applicable prospectus supplement and the additional information
described below under "Where You Can Find More Information".
WHERE YOU CAN FIND MORE INFORMATION
Cablevision files proxy statements and both Issuers file reports and other
information with the Commission. You may obtain copies of this information by
mail from the Public Reference Section of the Commission at Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549 and at the Commission's offices in
New York, New York and Chicago, Illinois, at prescribed rates. Please
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call the Commission at 1-800-SEC-0330 for further information on the Public
Reference Room. You may also read this information at the offices of the
American Stock Exchange, 86 Trinity Place, New York, New York 10006 or from the
Commission's website: http://www.sec.gov.
The Commission's rules permit the Issuers to "incorporate by reference"
information into this prospectus filed with the Commission. This means the
Issuers can disclose important information to you by referring you to another
document. Any information referred to in this way is considered part of this
prospectus, and any reports filed with the Commission after the date of this
prospectus and before the date the offering of the securities is terminated will
automatically be deemed to update and supersede any information contained in
this prospectus or incorporated in this prospectus by reference.
Cablevision hereby incorporates by reference into this prospectus the
following documents or information filed with the Commission:
- Cablevision's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 (the "CABLEVISION FORM 10-K"); and
- all documents filed by Cablevision pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), on or (i) after the date of the filing of this registration
statement and prior to its effectiveness and (ii) after the date of this
prospectus and prior to the termination of the offering made hereby.
CSC Holdings hereby incorporates by reference into this prospectus the
following documents or information filed with the Commission:
- CSC Holdings' Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 (the "CSC HOLDINGS FORM 10-K"); and
- all documents filed by CSC Holdings pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act on or (i) after the date of the filing of
this registration statement and prior to its effectiveness and (ii) after
the date of this prospectus and prior to the termination of the offering
made hereby.
Each Issuer will provide without charge to each person, including any
beneficial owner, to whom this prospectus is delivered, upon the written or oral
request of any such person, a copy of any or all of the information incorporated
herein by reference other than exhibits to such information (unless such
exhibits are specifically incorporated by reference into such information).
Requests should be made to Secretary, Cablevision Systems Corporation, 1111
Stewart Avenue, Bethpage, New York 11714 or by phone to (516) 803-2300 or at our
website: www.cablevision.com.
We have not included separate financial statements of the Trusts in this
prospectus. The Issuers and the Trusts do not consider that such financial
statements would be useful to holders of the preferred securities because:
- the voting securities of the Trusts will be owned, directly or indirectly,
by Cablevision or CSC Holdings, each a reporting company under the
Exchange Act;
- each Trust is a newly formed special purpose entity, has no operating
history or independent operations and is not engaged in and does not
propose to engage in any activity other than holding junior subordinated
debt securities as trust assets and issuing the preferred securities and
the common securities; and
- the Issuer's obligations described in this prospectus and in the
applicable prospectus supplement, through the applicable guarantee, the
applicable Declaration of Trust (as defined in "The Trusts"), the junior
subordinated debt securities, the junior subordinated indenture and any
supplemental indentures thereto, and the expense agreement, taken
together, constitute a full, irrevocable and unconditional guarantee by
the Issuer of the Trust's obligations under the preferred securities. No
single document standing alone or operating in conjunction with fewer than
all of the other documents constitutes such guarantee. It is only the
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combined operation of these documents that has the effect of providing a
full, irrevocable and unconditional guarantee of the Trust's obligations
under the preferred securities.
------------------------
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE SECURITIES. SUCH
TRANSACTIONS MAY INCLUDE OVER-ALLOTMENT, STABILIZING, THE PURCHASE OF
SECURITIES TO COVER SYNDICATE SHORT POSITIONS AND THE IMPOSITION OF PENALTY
BIDS. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE "PLAN OF DISTRIBUTION".
------------------------
This prospectus is part of a registration statement filed with the
Commission by Cablevision, CSC Holdings and the Trusts. This prospectus does not
contain all of the information that is in the registration statement. The full
registration statement (including exhibits and schedules) contains additional
relevant information about the Issuers and the securities. The rules and
regulations of the Commission allow us to omit certain information included in
the registration statement from this prospectus. You can obtain our registration
statement from the Commission as indicated above, or from Cablevision or CSC
Holdings as described below.
In this prospectus, we make statements that constitute forward-looking
information within the meaning of the Private Securities Litigation Reform Act
of 1995. These statements may be made directly in this document or may be
"incorporated by reference" to other documents. You can find many of these
statements by looking for words such as "believes", "expects", "anticipates",
"estimates" or similar expressions. We caution you that such forward-looking
statements are not guarantees of future performance or results. They involve
risks and uncertainties that are difficult to predict. Among the factors that
may cause our actual results to differ from those expressed or implied in the
forward-looking statements are the following:
- level of growth in the revenues of Cablevision and CSC Holdings;
- demand, competition, the cost of programming and industry conditions;
- expenses of Cablevision and CSC Holdings continue to increase or increase
at a rate faster than expected;
- any unconsummated transactions are consummated on the terms and at the
times set forth (if at all);
- competitors entering the Issuer's franchise areas; and
- risks and uncertainties inherent in the cable television business.
The information contained herein concerning year 2000 issues ("Y2K")
constitutes forward-looking information. The identification and remediation of
Y2K issues is a technological effort that has never been undertaken before and
estimates of the outcome, time and expense of this endeavor are, for that
reason, particularly hard to make with any certainty. As a result, our estimates
may prove to be materially inaccurate. More specifically, our forecasts may
prove to be wrong for the reasons described under "Risk Factors", as well as for
the following reasons, among others:
- our forecasts are dependent upon the representations of third parties
which may be inaccurate or mistaken;
- the nature of the Y2K issue is such that detection of all issues is
difficult and cannot be assured and, as a result, problems may exist that
have not been, and are not, identified in a timely manner;
- because of the lack of experience with problems of this nature and
magnitude, it is difficult to estimate remediation costs with accuracy;
- remediation requires the efforts of third parties whose performance is
beyond our control; and
- because the Y2K issues are so widespread and because the number of third
parties who can provide meaningful remediation services is limited, we may
have difficulty obtaining the timely assistance of such third parties,
particularly as such services are needed closer to January 1, 2000.
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CABLEVISION
Cablevision, one of the largest operators of cable television systems in the
United States, owns all of the outstanding common stock of its subsidiary, CSC
Holdings. The businesses of CSC Holdings are summarized below. Cablevision also
owns all of the equity interests in certain other subsidiaries that operate
cable television systems located in New Jersey, on Long Island and in New York's
Rockland, Orange and Westchester counties which served approximately 843,000
subscribers as of December 31, 1998. Cablevision also owns equity interests in
subsidiaries that own and operate motion picture theaters in the New York City
metropolitan area. Cablevision has no significant assets other than the stock of
its subsidiaries.
CSC HOLDINGS
CSC Holdings served approximately 2,569,000 cable television subscribers in
six states as of December 31, 1998. Through Rainbow Media Holdings, Inc.
("RAINBOW MEDIA"), a company owned 75% by CSC Holdings and 25% by NBC Cable
Holding, Inc., a subsidiary of National Broadcasting Company, Inc., CSC Holdings
owns interests in and manages numerous national and regional programming
networks, the Madison Square Garden sports and entertainment business ("MSG")
and cable television advertising sales companies. CSC Holdings, through
Cablevision Lightpath, Inc., a wholly owned subsidiary of CSC Holdings, provides
switched telephone service. CSC Holdings also owns Cablevision Electronics
Investments, Inc., doing business as The Wiz, an electronics retailer operating
40 retail locations in the New York City metropolitan area. CSC Holdings also
owns equity interests in a subsidiary that owns and operates motion picture
theaters in the New York City metropolitan area.
THE TRUSTS
Each Trust is a statutory business trust created under Delaware law under a
declaration of trust between CSC Holdings, as depositor (the "DEPOSITOR"), and
The Bank of New York (Delaware), as Delaware trustee (the "DELAWARE TRUSTEE").
Certificates of trust have been filed with the Secretary of State of the State
of Delaware. The form of each declaration of trust is filed as an exhibit to the
registration statement. Each declaration of trust will be amended and restated
in its entirety at the time of an offering of preferred stock and filed as an
exhibit to a Current Report on Form 8-K under the Exchange Act (as amended, a
"DECLARATION OF TRUST"). Each Declaration of Trust will be qualified as an
indenture under the Trust Indenture Act and will govern the duties and
obligations of the Trust and the Trust Trustees (as defined below).
In connection with an offering by a Trust, the Trust will issue preferred
securities and common securities under the Declaration of Trust. The preferred
securities will represent preferred undivided beneficial interests in the assets
of the Trust, and the common securities will represent common undivided
beneficial interests in the assets of the Trust. The preferred securities and
the common securities will have substantially similar terms, except that the
holders of preferred securities will be entitled to priority in right of payment
over the holders of common securities in certain circumstances involving an
event of default under the Declaration of Trust, and the holders of common
securities will have broader voting rights.
At the closing of an offering of preferred securities, the underwriters will
purchase the preferred securities and the Issuer (either Cablevision or CSC
Holdings) will purchase the common securities from the issuing Trust, and the
issuing Trust will use the proceeds from those sales to purchase corresponding
junior subordinated debt securities from the Issuer. The aggregate liquidation
amount of the common securities acquired by the Issuer will equal 3% of the
issuing Trust's total capital at the closing. The Issuer will continue to hold
all the common securities after the closing of the offering.
Also at the closing, the Issuer will execute a guarantee and an expense
agreement. Under the guarantee, the Issuer will guarantee payments on the
preferred securities, but only to the extent that the Trust has funds legally
available to make those payments. The expense agreement will provide for
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the Issuer to reimburse the Trust for all expenses and liabilities it incurs
(other than amounts payable in respect of the preferred securities). The Issuer
will also pay the expenses of the offering of the preferred securities,
including underwriters' commissions.
Each Trust exists solely for the following purposes:
- issuing and selling the preferred securities and the common securities;
- using the proceeds from the sale of the preferred securities and the
common securities to acquire the junior subordinated debt securities; and
- engaging only in those other activities that are necessary or incidental
to the activities described above (such as registering the transfer of the
preferred securities and the common securities).
Each Trust will have no assets other than the junior subordinated debt
securities and the right to receive reimbursement under the expense agreement.
Each Trust will have no revenue other than payments under the junior
subordinated debt securities and the expense agreement.
Each Trust has a term of approximately 55 years but may terminate earlier as
provided in its Declaration of Trust. Each Trust's business and affairs will be
conducted by its trustees. These trustees will be The Bank of New York, as
property trustee (the "PROPERTY TRUSTEE"), and the Delaware Trustee
(collectively, the "TRUST TRUSTEES"). In addition, the Issuer, as the holder of
the common securities, will select two individuals who will act as
administrators with respect to each Trust (the "ADMINISTRATORS"). The
Administrators will initially be employees or officers of Cablevision. The
Property Trustee will act as the indenture trustee under the Declaration of
Trust for purposes of compliance with the Trust Indenture Act.
The Bank of New York will also act as the trustee under the guarantee and
the indenture relating to the junior subordinated debt securities, which are
described in "Description of the Junior Subordinated Debt Securities". The
principal executive office of each Trust is 1111 Stewart Avenue, Bethpage, New
York 11714, and each Trust's telephone number is (516) 803-2300. The Trusts will
not be subject to the reporting requirements of the Exchange Act.
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RISK FACTORS
An investment in the securities involves a number of risks, some or all of
which could be substantial and are inherent in our business. We urge you to
consider carefully the following information about these risks, together with
the other information in this prospectus or in the attached prospectus
supplement, before buying any of the securities. "We," "us" and "our" in this
section refer to Cablevision and CSC Holdings.
COMPANY-SPECIFIC RISKS
WE HAVE SUBSTANTIAL INDEBTEDNESS, AND WE ARE HIGHLY LEVERAGED AS A RESULT
CSC Holdings incurred, and CSC Holdings and Cablevision will continue to
incur in the future, substantial amounts of indebtedness to finance operations,
expand cable operations and acquire other cable television systems, programming
networks, sources of programming and other businesses. CSC Holdings also has
incurred, and CSC Holdings and Cablevision will continue to incur, indebtedness
in order to offer new services such as high speed Internet access, digital video
service and residential telephone service to present and potential customers. In
addition, CSC Holdings has borrowed and CSC Holdings and Cablevision will
continue to borrow money from time to time to refinance existing indebtedness
and redeem mandatorily redeemable preferred stock. At December 31, 1998,
Cablevision's consolidated debt (including two series of mandatorily redeemable
preferred stock of CSC Holdings) totalled $6.6 billion, and CSC Holdings'
consolidated debt (including the same two series of mandatorily redeemable
preferred stock) totalled $6.1 billion (all of which is included in
Cablevision's $6.6 billion of consolidated debt). We urge you to read carefully
our consolidated financial statements contained in the Cablevision Form 10-K and
the CSC Holdings Form 10-K, which provide more detailed information about this
indebtedness and mandatorily redeemable preferred stock.
Because of this substantial indebtedness and mandatorily redeemable
preferred stock of CSC Holdings, we are highly leveraged, meaning that interest
on and required repayments of our borrowings and dividends on and required
redemption amounts with respect to our mandatorily redeemable preferred stock
are significant in relation to our revenues and cash flow. This leverage exposes
us to significant risk in the event of downturns in our businesses, in our
industries or in the economy generally, because although our cash flows would
decrease in such a scenario, our required payments in respect of indebtedness
and preferred stock will not.
OUR FINANCIAL STATEMENTS REFLECT NET LOSSES AND A STOCKHOLDERS' DEFICIENCY
Cablevision and CSC Holdings have reported recent net losses applicable to
common shareholders as follows:
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CSC
CABLEVISION HOLDINGS
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FOR THE YEAR ENDED:
December 31, 1998....... $448.5 million $401.4 million
December 31, 1997....... $12.1 million $12.1 million
December 31, 1996....... $459.9 million $459.9 million
</TABLE>
Net losses are calculated by subtracting, without limitation, from gross
revenues (i) operating expenses (including depreciation and amortization), (ii)
interest expense, (iii) preferred stock dividends, (iv) other income and
expenses and (v) net profit or loss from affiliate operations. The net losses
described above primarily reflect our high interest expense and depreciation and
amortization charges, which are expected to continue. As a cumulative result of
these net losses, at December 31, 1998, Cablevision had a stockholders'
deficiency of $2.6 billion, and CSC Holdings had a stockholders' deficiency of
$2.8 billion. We urge you to read carefully our consolidated financial
statements contained in the Cablevision Form 10-K and the CSC Holdings Form
10-K, which provide more detailed information about these net losses.
We expect our net losses to continue and to remain substantial for the
foreseeable future because:
- interest expense and depreciation and amortization charges relating to
existing indebtedness and completed acquisitions and capital expenditures
will remain high for the foreseeable future;
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- we expect that future indebtedness incurred to fund pending and future
acquisitions and the development of the new businesses, including, but not
limited to, capital expenditures and additional investments in our cable
television plant and programming operations, will result in significant
additional charges to gross revenues; and
- we expect expenses and depreciation relating to each new service we offer
to be particularly high in relation to the amount of revenues such new
service will generate in its first years of operations, resulting in
significant net losses each time we begin offering a new service or
supporting a new business we acquire.
WE WILL NEED SIGNIFICANT ADDITIONAL BORROWINGS, AND WE HAVE COMMITTED TO
SIGNIFICANT FUTURE CAPITAL EXPENDITURES AND OTHER CAPITAL COMMITMENTS
Our business is very capital-intensive. Operating, maintaining and upgrading
our cable television plant require significant amounts of cash payments to third
parties. In addition, we have incurred significant expenses to start up and
operate new businesses such as high speed Internet access, digital video service
and residential telephone service, and we expect such expenses to continue or
grow as we continue to introduce these and possibly other new services (such as
personal communications services and direct broadcast satellite ventures) to our
cable television customers. We also incur significant start-up costs in funding
new cable programming services before they have positive cash flow, typically
during their start-up and development. Our acquisition and development of
related businesses, such as electronics retailing and movie theaters, also
result in significant expenditures. Finally, we pay a significant amount of
interest in respect of our outstanding indebtedness, and significant amounts of
cash will be required to repay our existing indebtedness and the mandatorily
redeemable preferred stock of CSC Holdings. We will not be able to generate
sufficient cash internally to finance these projects or to repay this
indebtedness and the mandatorily redeemable preferred stock of CSC Holdings.
Since we will be unable to generate sufficient cash internally for these
purposes, we will be required to either raise additional capital, through debt
or equity issuances or both, or we will be required to cancel or scale back
current and future spending programs. You should not assume that we will be able
to raise any required additional capital, nor should you assume that we will be
able to compete effectively if we are unable to pursue our current and future
spending programs.
Many of our more substantial future capital expenditures and commitments are
in the form of long-term contracts that require substantial payments over an
extended period of time. For example, rights agreements with sports teams
pursuant to which we carry games on our programming networks almost always
involve multi-year contracts that are difficult and expensive to terminate.
Accordingly, if we are forced to cancel or scale back current and future
spending programs as described above, our choice of which spending programs we
will cancel or scale back may be limited.
SECURITIES ISSUED BY CABLEVISION AND CSC HOLDINGS AND THEIR OBLIGATIONS
UNDER THE GUARANTEE AND THE EXPENSE AGREEMENT WILL BE EFFECTIVELY SUBORDINATED
TO ALL EXISTING AND FUTURE INDEBTEDNESS OF THEIR SUBSIDIARIES
Cablevision and CSC Holdings are each holding companies whose assets consist
primarily of investments in subsidiaries. Cablevision's principal subsidiaries
are CSC Holdings and various entities that own cable television systems acquired
from subsidiaries of Tele-
Communications Inc. ("TCI") in March 1998. CSC Holdings' principal subsidiaries
are various entities that own cable television systems, interests in programming
networks and Rainbow Media. The ability of Cablevision and CSC Holdings to pay
interest on and repay principal of their indebtedness, to make dividend payments
and redemptions of their preferred stock and to meet their obligations under the
guarantee and the expense agreement are dependent primarily upon the earnings of
their subsidiaries and the distribution or other payment of these earnings to
Cablevision and CSC Holdings in the form of dividends, loans or advances. CSC
Holdings and Cablevision's subsidiaries are separate and distinct legal entities
and have no obligation, contingent or otherwise, to pay any amounts due on
public
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indebtedness or preferred stock of Cablevision or CSC Holdings or to make any
funds available to Cablevision or CSC Holdings to do so. CSC Holdings' principal
bank credit facility (the "CREDIT AGREEMENT") and certain of CSC Holdings' debt
instruments contain various financial and operating covenants that restrict the
payment of distributions by CSC Holdings to Cablevision. As of December 31,
1998, CSC Holdings had available for distribution to Cablevision $100 million
under the Credit Agreement and $860 million under the most restrictive of its
debt instruments. Rainbow Media and certain of its subsidiaries are parties to
credit agreements that further contain various financial and operating covenants
that restrict the payment of dividends or other distributions.
In addition, creditors of subsidiaries of Cablevision and CSC Holdings would
be entitled to a claim on the assets of such subsidiaries prior to any claims of
Cablevision or CSC Holdings, as the case may be, as a stockholder. Consequently,
in the event of a liquidation or reorganization of any subsidiary, creditors of
these subsidiaries are likely to be paid in full before any distribution is made
to Cablevision or CSC Holdings, as the case may be. To the extent that
Cablevision or CSC Holdings is a creditor of such subsidiary, the claims of
Cablevision or CSC Holdings, as the case may be, would be subordinated to any
security interest in the assets of such subsidiary and/or any indebtedness of
such subsidiary senior to that held by Cablevision or CSC Holdings, as the case
may be.
A SIGNIFICANT AMOUNT OF OUR BOOK VALUE CONSISTS OF INTANGIBLE ASSETS
At December 31, 1998, Cablevision reported total assets of $7.1 billion on
its consolidated balance sheet, of which $3.2 billion were intangible assets. At
that date, CSC Holdings reported $5.9 billion of consolidated total assets, of
which $2.5 billion were intangible. Intangible assets include assets such as
franchises from city and county governments to operate cable television systems,
affiliation agreements, an amount representing the cost of certain acquired
assets in excess of their fair value and certain deferred costs associated with
past financings, acquisitions and other transactions. You should not assume that
any cash would be received from the voluntary or involuntary sale of these
intangible assets. We urge you to read carefully our consolidated financial
statements contained in the Cablevision Form 10-K, which provide more detailed
information about these intangible assets.
WE MAY NOT BE ABLE TO COMPLETE OUR PENDING TRANSACTIONS
We have announced and may continue to announce a number of transactions,
some of which are or may be significant to our business. Because of the
conditions required to be fulfilled before we can complete these transactions,
you should not assume that any of our announced transactions will be completed
on the schedule we announce, or that any of them will be completed at all. Our
pending transactions are generally disclosed in our Form 10-Ks. We urge you to
read carefully the description of pending transactions contained therein,
particularly the conditions required to be fulfilled in order to complete each
such transaction.
WE MAY SEPARATE RAINBOW MEDIA FROM CSC HOLDINGS
Under our existing debt instruments, we are permitted under certain
circumstances to restructure our holdings so that Rainbow Media would become a
separate subsidiary of Cablevision and would no longer be a subsidiary of CSC
Holdings, as it presently is, and the cable television assets held by
Cablevision other than through CSC Holdings would be transferred to CSC
Holdings. If we engage in such a restructuring, Rainbow Media's cash flow and
assets would no longer be available to support payments due with respect to CSC
Holdings' securities. Similarly, following a spin-off of Rainbow Media by CSC
Holdings to Cablevision, Cablevision might decide to spin off Rainbow Media to
its shareholders, in which event Rainbow Media's cash flow and assets would not
be available to support payments due with respect to Cablevision securities.
Therefore, you should not assume that Rainbow Media's cash flow and assets will
be available to support any Cablevision securities or CSC Holdings' securities
in the future.
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WE ARE CONTROLLED BY THE DOLAN FAMILY
Cablevision has two classes of Common Stock:
- Class B Common Stock, which is generally entitled to ten votes per share
and is entitled collectively to elect 75% of the Cablevision board of
directors, and
- Class A Common Stock, which is entitled to one vote per share and is
entitled collectively to elect the remaining 25% of the Cablevision board
of directors.
As of December 31, 1998, Charles F. Dolan, Chairman of the Board of Directors of
Cablevision, beneficially owned over 0.9% of the Class A Common Stock and 53.6%
of the Class B Common Stock and 43.2% of the total voting power of both classes
of stock (in each case taking into account shares held in trusts and as to which
Mr. Dolan disclaims beneficial ownership).
As a result of this stock ownership, Dolan family members have the power to
elect all the directors of Cablevision subject to election by holders of the
Class B Common Stock. Dolan family members may control stockholder decisions on
matters in which holders of the Common Stock vote together as a class. These
matters include the amendment of certain provisions of Cablevision's certificate
of incorporation and the approval of fundamental corporate transactions,
including mergers. In addition, because the affirmative vote or consent of the
holders of at least 66 2/3% of the outstanding shares of the Class B Common
Stock, voting separately as a class, is required to approve (i) the
authorization or issuance of any additional shares of Class B Common Stock and
(ii) any amendment, alteration or repeal of any of the provisions of the
Cablevision Certificate of Incorporation that adversely affects the powers,
preferences or rights of the Class B Common Stock, Dolan family members also
have the power to prevent such issuance or amendment. The voting rights of the
Class B Common Stock beneficially owned by the Dolan family members will not be
modified as a result of any transfer of legal or beneficial ownership thereof.
The Dolan family will therefore be able to prevent or cause a change of
control of Cablevision. We urge you to read carefully the more detailed
description of the Dolan family's interests in Cablevision's Common Stock in
Cablevision's proxy statement, which we have incorporated herein by reference.
SIGNIFICANT RESTRICTIVE COVENANTS IN OUR FINANCING AGREEMENTS LIMIT OUR
FLEXIBILITY
The Credit Agreement and certain debt instruments of CSC Holdings and its
subsidiaries contain various financial and operating covenants which, among
other things, require the maintenance of certain financial ratios and restrict
the relevant borrower's ability to incur debt from other sources and to use
funds for various purposes, including investments in certain subsidiaries.
Violation of these covenants could result in a default which would permit the
parties who have lent money under the Credit Agreement and such other debt
instruments to:
- restrict our ability to borrow undrawn funds under the Credit Agreement;
and
- require the immediate repayment of the borrowings under the Credit
Agreement and such other debt instruments.
REGULATORY RISKS ARE INHERENT AND SUBSTANTIAL IN OUR BUSINESSES
GENERAL. The Federal Communications Commission (the "FCC") and state and
local governments extensively regulate the rates we may charge our customers for
video services. They also regulate us in other ways that affect the daily
conduct of our video delivery and video programming business, as well as our
telephone business and possibly in the future, our high speed Internet access
business. Any action by the FCC, the states of New York, New Jersey,
Connecticut, Massachusetts or Ohio or concerted action by local regulators (the
likelihood or extent of which cannot be predicted) could have a material
financial effect on us. For example, in 1992 Congress enacted the Cable
Television Consumer Protection and Competition Act of 1992 (the "1992 CABLE
ACT"), which represented a significant change in the regulatory framework under
which cable television systems operate. In 1993 and 1994, the FCC ordered
reductions in cable television rates based on the 1992 Cable Act. In 1995, a
Federal appeals court upheld the material aspects of the FCC's rate regulation
scheme. Congress
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subsequently enacted the Telecommunications Act of 1996, which relaxes the
regulation of higher tier cable television rates. The most significant rate
regulation relaxation affecting us will occur after March 31, 1999. The
regulation by local governments of basic cable rates will continue in most
communities in which we operate after March 31, 1999.
OUR CURRENT FRANCHISES ARE GENERALLY NON-EXCLUSIVE, AND OUR FRANCHISORS NEED
NOT RENEW OUR FRANCHISES. Our cable television systems are operated primarily
under non-exclusive franchise agreements with local government franchising
authorities, in some cases with the approval of state cable television
authorities. Consequently, our business is dependent on our ability to obtain
and renew our franchises. Although we have never lost a franchise as a result of
a failure to obtain a renewal, our franchises are subject to non-renewal or
termination under certain circumstances. In certain cases, franchises have not
been renewed at expiration, and we operate under either temporary operating
agreements or without a license while negotiating renewal terms with the
franchising authorities.
WE ARE EXPOSED TO A SIGNIFICANT AND CREDIBLE RISK OF COMPETITION
GENERAL. Cable operators compete with a variety of television programming
distribution systems, including broadcast television stations, direct
broadcasting satellite systems, multichannel multipoint distribution services,
satellite master antenna systems and private home dish earth stations. For
example, three direct broadcasting satellite systems are now operational in the
United States. Companies with substantial resources such as Hughes Electronics
Corp. have invested in some of these systems. The 1992 Cable Act prohibits a
cable programmer that is owned by or affiliated with a cable operator (such as
Rainbow Media) from (i) unreasonably discriminating among or between cable
operators and other multichannel video distribution systems with respect to the
price, terms and conditions of sale or distribution of the programmer's service
and (ii) unreasonably refusing to sell service to any multichannel video
programming distributor. Cable systems also compete with the entities that make
videotaped movies and programs available for home rental. The Telecommunications
Act of 1996 gives telephone companies and other video providers the option of
providing video programming to subscribers through "OPEN VIDEO SYSTEMS", a wired
video delivery system similar to a cable television system that may not require
a local cable franchise. RCN, an open video system operator that teams with
electric utilities, is currently operating systems in Boston and parts of New
York City that compete with us. Additional video competition to cable systems is
possible from new wireless local multipoint distribution services authorized by
the FCC, for which spectrum was recently auctioned by the FCC.
COMPETITION FROM TELEPHONE COMPANIES. The Cable Communications Policy Act
of 1984 (the "1984 CABLE ACT") barred co-ownership of telephone companies and
cable television systems operating in the same service areas. The
Telecommunications Act of 1996 repealed this restriction and permits a telephone
company to provide video programming directly to subscribers in its telephone
service territory, subject to certain regulatory requirements, but generally
prohibits a telephone company from acquiring an in-region cable operator, except
in certain small markets under certain circumstances. Telephone companies
(Ameritech Corp. in Ohio and Southern New England Telephone Co. in Connecticut)
have obtained or applied for local franchises to construct and operate cable
television systems in several communities in which we currently hold cable
franchises, and in certain locations have commenced offering service in
competition with us.
OUR SYSTEMS AND THE SYSTEMS OF THIRD PARTIES MAY NOT ACHIEVE YEAR 2000
READINESS
Y2K refers to the inability of certain computerized systems and technologies
to recognize and/or correctly process dates beyond December 31, 1999. As a
result of these issues, the potential exists for computer system failure or
miscalculations by computer programs, which could cause disruption of our
operations. Our plan to identify and address Y2K issues is described in our Form
10-Ks for the year ended December 31, 1998.
Many of the information technology ("IT") and non-IT systems that are
necessary for the continued operation of our businesses are
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dependent upon components that may not be Y2K compliant. While our Y2K
compliance program is designed to identify and remediate these systems in order
to avoid interruption of our operations, there can be no assurance that we will
be able to identify all noncompliant systems or successfully remediate all those
that are identified. Failure of IT or non-IT systems that are necessary for the
operation of our businesses, including, without limitation, our billing systems,
addressable controller and converter systems, purchasing, finance and inventory
systems, marketing databases and point of sale systems, could have a material
adverse effect on us.
We are dependent upon third-party products and services, such as utility
services and programming uplinks, for the operation of our businesses. While, as
part of the Inventory and Assessment phase of our Y2K program, we have contacted
third-party product and service providers to ascertain whether Y2K compliance
issues may exist, we have in many cases not received assurances from such
suppliers. Moreover, in most cases we do not have the ability to verify any
assurances we do receive from third-party suppliers. If critical IT or non-IT
systems used by such third-party suppliers fail as a result of a Y2K compliance
issue, and as a result of such failure the ability of such supplier to continue
to provide such product or service to us is interrupted, our ability to continue
to provide services to our customers may be interrupted. Such an interruption
could have a material adverse effect on us. We intend to implement contingency
plans to address those risks, although no such plans have yet been identified,
and there can be no assurance that any such plan would resolve such problems in
a satisfactory manner. In addition to the risks associated with failure of IT
Systems due to Y2K problems, the failure of non-IT systems would pose
significant risks to us. For example, we and our subsidiaries operate facilities
for both employees and the public. Failure of the non-IT systems at such
facilities could result in health and safety risks that could lead to the
closure or unavailability of such facilities. This could result in lost revenues
to us and the risk of actions against us if the businesses of others are
disrupted. Also, the failure of such non-IT systems could result in injury to
individuals which could expose us to actions by or on behalf of such
individuals.
RISKS RELATING TO THE PREFERRED SECURITIES
Because a Trust will rely on the payments it receives on the junior
subordinated debt securities to fund all payments on preferred securities, and
because a Trust may distribute the junior subordinated debt securities in
exchange for the preferred securities upon liquidation, if you purchase
preferred securities you are making an investment decision with regard to the
junior subordinated debt securities as well as the preferred securities. You
should carefully review the information in this prospectus about both of these
securities.
OUR OBLIGATIONS TO YOU WILL BE DEEPLY SUBORDINATED
Our obligations under the junior subordinated debt securities will be
unsecured and will be subordinated in right of payment to all Senior Debt.
"SENIOR DEBT" will include substantially all current and future indebtedness of
the Issuer, other than trade accounts payable and accrued liabilities arising in
the ordinary course, and therefore will include most of the Issuer's other
subordinated debt. There will be no limit on our ability to incur Senior Debt,
and we expect to incur substantial additional amounts of Senior Debt in the
future. The subordination provisions that apply to the junior subordinated debt
securities are described in "Description of the Junior Subordinated Debt
Securities-- Subordination".
The guarantee and the expense agreement will be subordinated in right of
payment to all liabilities of the Issuer, including liabilities to trade
creditors (but excluding any similar guarantees and expense agreements), and
will rank PARI PASSU with the most senior class of any preferred stock that the
Issuer may issue.
DISTRIBUTION PAYMENTS ON THE PREFERRED SECURITIES COULD BE DEFERRED FOR
SUBSTANTIAL PERIODS, BUT HOLDERS WOULD CONTINUE TO RECOGNIZE INCOME FOR TAX
PURPOSES
If no Event of Default is continuing under the indenture relating to the
junior subordinated debt securities, we will have the right to begin an
Extension Period during which we will defer
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payments of interest on the junior subordinated debt securities and the Trust
will defer payments of distributions on the preferred securities. Each Extension
Period may last for up to 20 consecutive quarters (but not beyond the Stated
Maturity). There is no particular limit on the number of Extension Periods that
we may begin, so long as no Event of Default is continuing under the indenture
relating to the junior subordinated debt securities.
During any Extension Period, a holder of preferred securities will be
required to recognize income (in the form of original issue discount ("OID") on
a constant yield method) in respect of its PRO RATA share of the junior
subordinated debt securities held by the Trust for U.S. federal income tax
purposes. As a result, a holder of preferred securities will be required to
include that income in gross income for U.S. federal income tax purposes before
it actually receives any cash attributable to that income and will not receive
the cash related to such income from the Issuer if the holder disposes of the
preferred securities prior to the record date for the payment of the accrued and
unpaid dividends.
WE MAY REDEEM THE JUNIOR SUBORDINATED DEBT SECURITIES IF CERTAIN TAX OR
REGULATORY EVENTS OCCUR
If a Tax Event (as defined in the section captioned "Description of the
Junior Subordinated Debt Securities--Optional Redemption--Definition of Tax
Event") or an Investment Company Act Event (as defined in the section captioned
"Description of the Junior Subordinated Debt Securities--Optional
Redemption--Definition of Investment Company Act Event") occurs, we have the
right to redeem the junior subordinated debt securities in whole (but not in
part) within 90 days. If the junior subordinated debt securities are redeemed,
the preferred securities will also be redeemed. Thus, it is possible that the
preferred securities will be redeemed before their earliest stated redemption
date.
We are aware that in the past the Clinton Administration proposed
legislation that, if enacted, would have resulted in a Tax Event had the
preferred securities been outstanding at that time. Although legislation of that
kind is not currently pending, you should not assume that similar legislation
will not ultimately be enacted into law. See "U.S. Federal Income Tax
Consequences Relating to Preferred Securities-- Possible Tax Law Changes".
THE TRUST MAY DISTRIBUTE THE JUNIOR SUBORDINATED DEBT SECURITIES IN EXCHANGE
FOR THE PREFERRED SECURITIES, WHICH COULD BE A TAXABLE EVENT IN CERTAIN
CIRCUMSTANCES
The Issuer, as the holder of the outstanding common securities of the Trust,
will have the right at any time, in its sole discretion, to cause the Trust to
dissolve. In that event, after satisfying all liabilities to its creditors as
required by applicable law, the Trust would distribute the junior subordinated
debt securities to the holders of the preferred securities in exchange for those
securities upon liquidation of the Trust.
Under current U.S. federal income tax law and interpretations, and assuming,
as expected, that the Trust will not be classified as an association taxable as
a corporation, holders of the preferred securities would not have a taxable
event if the junior subordinated debt securities were distributed upon
liquidation of the Trust. However, if a Tax Event were to occur and the Trust
became subject to U.S. federal income tax with respect to income received or
accrued on the junior subordinated debt securities, both the Trust and the
holders of the preferred securities could be taxed on that distribution. See
"U.S. Federal Income Tax Consequences Relating to Preferred
Securities--Distribution of Junior Subordinated Debt Securities to Holders of
Preferred Securities Upon Liquidation of the Trust".
WE MAY EXTEND THE STATED MATURITY OF THE JUNIOR SUBORDINATED DEBT SECURITIES
As long as the Issuer has outstanding long-term senior unsecured debt that
is rated investment grade, the Issuer will have the right to extend the stated
maturity of the junior subordinated debt securities--and therefore the mandatory
redemption date for the preferred securities. Consequently, holders of preferred
securities could have to wait until such extended maturity date before they are
entitled to have their preferred securities redeemed.
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OUR DEFERRAL AND EXTENSION RIGHTS AND THE TAX TREATMENT OF THE PREFERRED
SECURITIES COULD ADVERSELY AFFECT MARKET PRICES FOR THE PREFERRED SECURITIES
Because we have the right to defer interest payments and extend or shorten
the stated maturity on the junior subordinated debt securities, the market price
of the preferred securities may be more volatile than the market prices of
similar securities that are not subject to these rights. Moreover, any exercise
of these rights could cause the market price of the preferred securities to
decline. Accordingly, the preferred securities that you may purchase or the
junior subordinated debt securities that a holder of preferred securities may
receive on liquidation of the Trust may trade at a discount to the price that
you paid to purchase the preferred securities. Furthermore, a holder that
disposes of any preferred securities or junior subordinated debt securities
during an Extension Period, when trading prices are likely to be adversely
affected by deferral, is not likely to receive the same return on its investment
as a holder that holds its preferred securities until the period ends.
A holder of preferred securities that disposes of its preferred securities
before the record date for the payment of distributions will not receive payment
of a distribution for the period prior to the disposition. Nevertheless, that
holder will be required to include accrued but unpaid interest on the junior
subordinated debt securities through the date of disposition as ordinary income
for U.S. federal income tax purposes and to add the amount of the accrued but
unpaid interest to its tax basis in the preferred securities. The holder will
recognize a capital loss to the extent the selling price is less than its
adjusted tax basis. Subject to certain limited exceptions, a holder of preferred
securities cannot offset ordinary income against capital losses for U.S. federal
income tax purposes. See "U.S. Federal Income Tax Consequences Relating to
Preferred Securities-- Sale or Redemption of Preferred Securities".
HOLDERS OF PREFERRED SECURITIES WILL HAVE LIMITED VOTING RIGHTS
In general, holders of preferred securities will have limited voting rights
relating principally to the modification of the Declaration of Trust (which
provides the terms and conditions of the preferred securities) and the exercise
of the Trust's rights as the holder of the junior subordinated debt securities.
Holders of preferred securities will not be entitled to appoint, remove or
replace the Property Trustee or the Delaware Trustee except upon the occurrence
of certain events. The Issuer, with the Property Trustee or the Indenture
Trustee, as applicable, may amend the Declaration of Trust and the indenture
without the consent of the holders of preferred securities to ensure that (i)
the Trust will be classified for U.S. federal income tax purposes as a grantor
trust or as other than an association taxable as a corporation, (ii) the junior
subordinated debt securities will be treated as indebtedness of the Issuer and
(iii) the Trust will not be required to register as an "investment company"
under the Investment Company Act of 1940, as amended (the "INVESTMENT COMPANY
ACT").
THERE HAS BEEN NO PRIOR MARKET FOR THE SECURITIES
There is presently no trading market for the securities that may be offered
hereby. Although the Trust may choose to apply to list the preferred securities
on the American Stock Exchange or another exchange or interdealer quotation
system, a listing does not guarantee that a trading market for the preferred
securities will develop or, if a trading market for the preferred securities
does develop, the depth of that market.
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USE OF PROCEEDS
Except as may otherwise be set forth in the applicable prospectus
supplement, the net proceeds from the sale of the securities will be added to
our general funds and used for general corporate purposes, including the
repayment of indebtedness. Each Trust will use all proceeds received from the
sale of its preferred securities and common securities to purchase junior
subordinated debt securities of the Issuer.
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS AND DEFICIENCY
OF EARNINGS AVAILABLE TO COVER FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
Set forth below is information concerning Cablevision's and CSC Holdings'
ratios of earnings to fixed charges and earnings to fixed charges and preferred
stock dividends and deficiency of earnings available to cover fixed charges and
deficiency of earnings available to cover fixed charges and preferred stock
dividends. These ratios show the extent to which our businesses generate enough
earnings after the payment of all expenses other than interest and preferred
stock dividends to make required interest and dividend payments on our debt and
preferred stock. For this purpose, "earnings" represents:
- the sum of pretax income from continuing operations before adjustment for
minority interests in consolidated subsidiaries or income or loss from
equity securities, fixed charges, amortization of capital interest,
distributed income of equity investees and the share of pretax losses of
equity investees for which charges arising from guarantees are included in
fixed charges, less
- the sum of interest capitalized, preference security dividend requirements
of consolidated subsidiaries and the minority interest in pretax income of
subsidiaries that have not incurred fixed charges.
"Fixed charges" represents the sum of interest expensed and capitalized,
amortized premiums, discounts and capitalized expenses related to indebtedness,
an estimate of the interest within rental expense and preference security
dividend requirements of consolidated subsidiaries. "Preferred stock dividends"
represents the amount of pretax earnings required to pay the dividends on
outstanding preference securities.
CABLEVISION
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------------------------
1998 1997 1996 1995 1994
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS)
Deficiency of earnings available to cover fixed charges.... $(448,504) $ (12,104) $(459,859) $(337,707) $(321,536)
</TABLE>
CSC HOLDINGS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------------------------
1998 1997 1996 1995 1994
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS)
Ratio of earnings to fixed charges......................... -- $ 1.36 -- -- --
Deficiency of earnings available to cover fixed charges.... $(239,533) -- $(332,079) $(317,458) $(315,151)
Deficiency of earnings available to cover fixed charges and
preferred stock dividends................................ $(401,405) $ (12,104) $(459,859) $(337,707) $(321,536)
</TABLE>
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DESCRIPTION OF THE SECURITIES WE MAY OFFER
OVERVIEW
This prospectus describes the securities we may offer from time to time. The
remainder of this section provides some background information about the manner
in which the securities may be held, then describes the terms of the four basic
categories of securities:
- CSC Holdings' debt securities, which may be senior or subordinated;
- Cablevision's or CSC Holdings' preferred stock, which may be issued in the
form of depositary shares representing fractions of shares of preferred
stock;
- Cablevision's or CSC Holdings' junior subordinated debt securities; and
- any of the Trusts' preferred securities.
Each time we sell securities, we will provide a prospectus supplement that will
contain specific information about the securities being offered.
IN THIS SECTION, "ISSUER" MEANS THE ISSUER OF THE PARTICULAR SECURITIES IN
RESPECT OF WHICH THIS PROSPECTUS IS BEING DELIVERED (OR, IN THE CASE OF THE
PREFERRED SECURITIES, THE ENTITY THAT IS PURCHASING THE COMMON SECURITIES OF
THE ISSUING TRUST).
LEGAL OWNERSHIP
"STREET NAME" AND OTHER INDIRECT HOLDERS
In general, we would not recognize investors who hold securities in accounts
at banks or brokers as legal holders of securities. This is called holding in
"street name". Instead, we will recognize only the bank or broker or the
financial institution that the bank or broker uses to hold its securities and in
whose name the securities are registered. These intermediary banks, brokers and
other financial institutions pass along distributions, dividends, principal,
interest and other payments on the securities, pursuant to their customer
agreements or legal requirement. If you hold securities in "street name", you
should ask your institution:
- How does it handle securities payments and notices?
- Does it impose fees or charges?
- How would it handle voting if ever required?
- Whether and how can you instruct it to send you securities registered in
your own name so you can be a registered holder as described below?
- How would it pursue rights under the securities if there were a default or
other event triggering the need for holders to act to protect their
interests?
REGISTERED HOLDERS
We, and any third parties employed by us or acting on your behalf (such as
trustees, depositaries and transfer agents), are obligated only to persons who
are registered as holders of securities. As noted above, we do not have
obligations to you if you hold in "street name" or other indirect means, either
because you choose to hold securities in that manner or because the securities
are issued in the form of Global Securities as described below. For example,
once we make a payment to the registered holder, we have no further
responsibility for the payment even if that holder is legally required to pass
the payment to you as a "street name" customer but does not do so.
BOOK-ENTRY SECURITIES
WHAT IS A GLOBAL SECURITY? A Global Security is a special type of indirectly
held security, as described above under "-- 'Street Name' and Other Indirect
Holders". If we issue securities in the form of Global Securities, the ultimate
beneficial owners can only be indirect holders. We do this by requiring that the
Global Security be registered in the name of a financial institution selected by
us and by requiring that the securities included in the Global Security not be
transferred to the name of any other direct holder unless special circumstances
occur as described below. The financial institution that acts as the sole direct
holder of the Global Security is called the "DEPOSITARY". Any person wishing to
own a security issued in the form of a Global Security must do so indirectly by
virtue of an account with
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a broker, bank or other financial institution that in turn has an account with
the Depositary (a "PARTICIPANT"). The prospectus supplement will indicate
whether your series of securities will be issued only in the form of Global
Securities.
SPECIAL INVESTOR CONSIDERATIONS FOR GLOBAL SECURITIES. As an indirect
holder, your rights relating to a Global Security will be governed by the
account rules of your financial institution and the Depositary, as well as
general laws relating to securities transfers. We would not recognize you as a
registered holder of securities and would deal only with the Depositary that
holds the Global Security.
You should be aware that if securities are issued only in the form of Global
Securities:
- You cannot get securities registered in your own name.
- You cannot receive physical certificates for your interest in the
securities.
- You will be a "street name" holder and must look to your own bank or
broker for payments on the securities and protection of your legal rights
relating to the securities. See "-- 'Street Name' and Other Indirect
Holders".
- You may not be able to sell interests in the securities to some insurance
companies and other institutions that are required by law to hold their
securities in the form of physical certificates.
- The Depositary's policies will govern payments, transfers, exchanges and
other matters relating to your interest in the Global Security. Neither we
nor anyone other than the Depositary have any responsibility for any
aspect of the Depositary's actions or for its records of ownership
interests in the Global Security. We also do not supervise the Depositary
in any way.
SPECIAL SITUATIONS WHEN A GLOBAL SECURITY WILL BE TERMINATED. In a few
special situations, the Global Security will terminate and interests in it will
be exchanged for physical certificates representing the securities. After that
exchange, the choice of whether to hold securities directly or in "street name"
will be up to you. You must consult your bank or broker to find out how to have
your interests in securities transferred to your name, so that you will be the
registered holder. The rights of "street name" investors and registered holders
in the securities have been previously described in the subsections entitled
"-- 'Street Name' and Other Indirect Holders" and "--Registered Holders".
The special situations for termination of a Global Security are:
- when the Depositary notifies us that it is unwilling, unable or no longer
qualified to continue as Depositary;
- when we elect to terminate the Global Security; or
- when an Event of Default on the securities has occurred and has not been
cured. See "We May Offer Debt Securities--Default and Related Matters" and
"Description of the Junior Subordinated Debt Securities-- Events of
Default".
The prospectus supplement may also list additional situations for terminating a
Global Security that would apply to the particular series of securities covered
by the prospectus supplement. When a Global Security terminates, only the
Depositary is responsible for selecting the institutions that will be the
initial registered holders.
WE MAY OFFER DEBT SECURITIES
There is no limit to the number of different series of debt securities that
CSC Holdings may issue under the Indentures described below. This section
summarizes terms of the debt securities that are common to all series. Most of
the financial and other terms of your series, including, but not limited to,
maturity, interest, redemption, amortization, sinking fund or retirement, are
described in the prospectus supplement attached to the front of this prospectus.
Those terms may vary from the terms described here, in which case you should
rely on the terms in the prospectus supplement. The prospectus supplement may
also
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describe special U.S. federal income tax consequences of the debt securities.
As required by U.S. federal law, debt securities are governed by a document
called an "INDENTURE". The Indenture is a contract between CSC Holdings and an
entity (in our case, The Bank of New York) which acts as Trustee. The Trustee
has two main roles. First, the Trustee can enforce your rights, including rights
you have against us if we default. There are some limitations on the extent to
which the Trustee acts on your behalf, described later under "--Default and
Related Matters--Events of Default-- Remedies if an Event of Default Occurs".
Second, the Trustee performs administrative duties for us, such as sending you
interest payments, transferring your debt securities to a new buyer if you sell
and sending you notices.
Because CSC Holdings may issue both senior debt securities and subordinated
debt securities, our references to the "Indenture" are to each of CSC Holdings'
senior debt indenture, which is separately referred to as the "SENIOR
INDENTURE", and CSC Holdings' senior subordinated debt indenture, which is
separately referred to as the "SENIOR SUBORDINATED INDENTURE", unless the
context requires otherwise. We refer to these indentures collectively as the
"INDENTURES". Either Cablevision or CSC Holdings may also issue junior
subordinated debt securities under a junior subordinated debt indenture, which
is separately referred to as the "Junior Subordinated Indenture". See the
section "Description of the Junior Subordinated Debt Securities".
The Indentures and their associated documents contain the full legal text of
the matters described in this section. The Indentures and the debt securities
are governed by New York law. Copies of the Indentures have been filed with the
Commission as part of our registration statement. See "Where You Can Find More
Information" to determine how to obtain a copy.
Because this section is a summary, it does not describe every aspect of the
debt securities. This summary is subject to and qualified in its entirety by
reference to all the provisions of the Indentures, including definitions of
certain terms used in the Indentures. For example, in this section we use
capitalized words to signify defined terms that have been given special meaning
in the Indentures. We describe the meaning of only the more important terms.
Whenever we refer to defined terms of the Indentures in this prospectus or in
the prospectus supplement, such defined terms are incorporated by reference to
this prospectus or to the prospectus supplement. This summary is also subject to
and qualified by reference to the description of the particular terms of your
series described in the prospectus supplement.
OVERVIEW OF REMAINDER OF THIS DESCRIPTION OF THE DEBT SECURITIES
The remainder of this description of the debt securities summarizes:
- ADDITIONAL MECHANICS relevant to the debt securities under normal
circumstances, such as how you transfer ownership and where we make
payments;
- your rights under several SPECIAL SITUATIONS, such as if we merge with
another company or if we want to change a term of the debt securities;
- promises we make to you about how we will run our business, or business
actions we promise not to take (known as "RESTRICTIVE COVENANTS"); and
- your rights if we DEFAULT or experience other financial difficulties.
ADDITIONAL MECHANICS
FORM, EXCHANGE AND TRANSFER
The debt securities will be issued:
- only in fully registered form;
- without interest coupons; and
- in denominations that are even multiples of $1,000.
You may have your debt securities divided into debt securities of smaller
denominations or combined into debt securities of larger denominations, as long
as the total principal amount is not changed. This is called an "exchange".
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You may exchange or transfer debt securities at the office of the Trustee in
New York City. That office is currently located at The Bank of New York, 101
Barclay Street, Floor 7E, New York, New York 10286, Attn: Reorganization
Section. The Trustee maintains the list of registered holders and acts as our
agent for registering debt securities in the names of holders and transferring
debt securities. However, we may appoint another trustee to act as our agent or
act as our own agent.
You will not be required to pay a service charge to transfer or exchange
debt securities, but you may be required to pay for any tax or other
governmental charge associated with the exchange or transfer. The transfer or
exchange will only be made if the transfer agent is satisfied with your proof of
ownership.
If we have designated additional transfer agents, they are named in the
prospectus supplement. We may cancel the designation of any particular transfer
agent. We may also approve a change in the office through which any transfer
agent acts.
If the debt securities are redeemable and we redeem less than all of the
debt securities of a particular series, we may block the transfer or exchange of
debt securities for 15 days before the day we mail the notice of redemption and
ending on the day of that mailing in order to freeze the list of holders to
prepare the mailing. We may also refuse to register transfers or exchanges of
debt securities selected for redemption, except that we will continue to permit
transfers and exchanges of the unredeemed portion of any debt security being
partially redeemed.
PAYMENT AND PAYING AGENTS
We will pay interest to you if you are a direct holder in the list of
registered holders at the close of business on a particular day in advance of
each due date for interest, even if you no longer own the security on the
interest due date. That particular time and day, usually about two weeks in
advance of the interest due date, is called the "REGULAR RECORD DATE" and is
stated in the prospectus supplement. Holders buying and selling debt securities
must work out between them how to compensate for the fact that we will pay all
the interest for an interest period to the one who is the registered holder on
the Regular Record Date. The most common manner is to adjust the sales price of
the debt securities to PRO RATE interest fairly between buyer and seller. This
PRO RATED interest amount is called "ACCRUED INTEREST".
We will pay interest, principal and any other money due on the debt
securities at the corporate trust office of the Trustee in New York City. That
office is currently located at The Bank of New York, 101 Barclay Street, Floor
21W, New York, New York 10286, Attn: Corporate Trust Administration. You must
make arrangements to have your payments picked up at or wired from that office.
We may also choose to pay interest by mailing checks or making wire transfers.
"STREET NAME" AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR
BROKERS FOR INFORMATION ON HOW THEY WILL RECEIVE PAYMENTS.
We may also arrange for additional payment offices, and may cancel or change
these offices, including our use of the Trustee's corporate trust office. We may
also choose to act as our own paying agent. We must notify you of changes in
identities of the the paying agents for any particular series of debt
securities.
BOOK-ENTRY SECURITIES
The debt securities may be issued in whole or in part in the form of one or
more Global Securities. See "Description of the Securities We May Offer" for
additional information about your limited rights as the beneficial owner of a
Global Security.
NOTICES
We and the Trustee will send notices regarding the debt securities only to
registered holders, using their addresses as listed in the list of registered
holders.
Regardless of who acts as the paying agent, all money paid by us to a paying
agent that remains unclaimed at the end of two years after the amount is due to
registered holders will be repaid to us. After that two-year period, you may
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look only to us for payment and not to the Trustee, any other paying agent or
anyone else.
SPECIAL SITUATIONS
MERGERS AND SIMILAR EVENTS
CSC Holdings is generally permitted to consolidate or merge with another
company. CSC Holdings is also permitted to sell, lease or otherwise transfer
substantially all of its assets to another company. However, CSC Holdings may
not take any of these actions unless all the following conditions are met:
- If CSC Holdings merges out of existence or transfers its assets, the
entity into which it merges or sells its assets must be a corporation
organized under the laws of the United States, any state thereof or the
District of Columbia and it must agree to be legally responsible for the
debt securities.
- Immediately before and after the merger or transfer of assets, no default
on the debt securities can exist. A default for this purpose includes any
event that would be an Event of Default if the requirements for giving a
default notice or of having the default exist for a specific period of
time were disregarded.
- It is possible that the merger, sale of assets or other transaction would
cause some of CSC Holdings' property to become subject to a mortgage or
other legal mechanism giving lenders preferential rights in that property
over other lenders or over CSC Holdings' general creditors if CSC Holdings
fails to repay them. For holders of senior debt securities, CSC Holdings
has promised to limit these preferential rights on our property, called
"LIENS", as discussed later under "--Restrictive Covenants and Certain
Releases from Them--Covenants--Covenants Applicable to Senior Debt
Securities--Limitation on Liens". If a merger or other transaction would
create any Liens on our property, CSC Holdings must comply with that
restrictive covenant. CSC Holdings would do this either by deciding that
the Liens were permitted or by following the requirements of the
restrictive covenant to grant an equivalent or higher-ranking Lien on the
same property to you and the other direct holders of the senior debt
securities.
MODIFICATION AND WAIVER
There are three types of changes CSC Holdings can make to the Indentures and
the debt securities.
CHANGES REQUIRING YOUR APPROVAL. The following are changes that cannot be
made to your debt securities without your approval:
- changing the stated maturity of the principal or premium or payment date
of interest on a debt security;
- reducing any amounts due on a debt security;
- changing the currency of payment on a debt security;
- impairing your rights to sue for payment or to convert or exchange a
security;
- in the case of subordinated debt securities, modifying the subordination
provisions in a manner that is adverse to you;
- reducing the percentage of the principal amount of debt securities whose
holders' consent is needed to waive compliance with certain provisions of
the Indenture or to waive certain defaults;
- reducing the requirements for quorum or voting with respect to the debt
securities; and
- modifying any other aspect of the provisions of the Indenture dealing with
modification and waiver except to increase the voting requirements.
CHANGES REQUIRING A MAJORITY VOTE. The second type of change to the
Indenture and the debt securities requires a vote in favor by holders of debt
securities owning a majority of the principal amount of the outstanding
securities of the particular series affected. The same vote is required for CSC
Holdings to obtain a waiver of all or part of the restrictive covenants
described
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later, or a waiver of a past default. However, CSC Holdings cannot obtain a
waiver of a payment default or of any default in respect of a covenant or
provision of the Indenture or the debt securities described previously under
"--Changes Requiring Your Approval" unless you consent to the waiver.
CHANGES NOT REQUIRING APPROVAL. Curing ambiguities, defects or
inconsistencies (as long as these changes do not materially adversely affect the
interests of the holders of the debt securities) and qualifying, or maintaining
the qualification of, the Indentures under the Trust Indenture Act do not
require any vote by holders of debt securities.
FURTHER DETAILS CONCERNING VOTING. CSC Holdings will use the following
rules to decide how much principal amount to attribute to a debt security for
purposes of voting:
- for OID debt securities, the principal amount that would be due and
payable on the voting date if the maturity of the debt securities were
accelerated to that date because of a default;
- for debt securities whose principal amount is not known (for example,
because it is based on an index), a special rule for that debt security
described in the prospectus supplement; and
- for debt securities denominated in one or more foreign currencies or
currency units, the U.S. dollar equivalent, determined as of the date the
security was originally issued.
If CSC Holdings has deposited or set aside in trust for you money for the
redemption of certain debt securities and satisfactory notice of redemption has
been sent to you, those securities will not be considered outstanding, and
therefore not eligible to vote. Debt securities will also not be eligible to
vote if they have been fully defeased as described later under "--Restrictive
Covenants and Certain Releases from Them--Defeasance-- Full Defeasance".
CSC Holdings can generally set any day as a record date for determining the
holders of outstanding debt securities that are entitled to vote or take other
action under the Indenture. If CSC Holdings sets a record date for a vote or
other action by holders of a particular series, that vote or action may be taken
only by persons who are registered as holders of outstanding debt securities of
that series on the record date.
"STREET NAME" AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR
BROKERS FOR INFORMATION ON HOW APPROVAL MAY BE GRANTED OR DENIED IF WE SEEK TO
CHANGE THE INDENTURE OR THE DEBT SECURITIES OR REQUEST A WAIVER.
RESTRICTIVE COVENANTS AND CERTAIN RELEASES FROM THEM
COVENANTS
COVENANTS APPLICABLE TO SENIOR DEBT SECURITIES AND SUBORDINATED DEBT
SECURITIES. Unless otherwise specified in the applicable prospectus supplement,
the following covenants contained in the Indentures will be applicable with
respect to any series of debt securities (other than junior subordinated debt
securities, which are addressed in the section "Description of the Junior
Subordinated Debt Securities"):
LIMITATION ON INDEBTEDNESS. The Indentures provide that CSC Holdings will
not, and will not permit any Restricted Subsidiary to, directly or indirectly,
incur, create, issue, assume, guarantee or otherwise become liable for,
contingently or otherwise, or become responsible for the payment of,
contingently or otherwise, any Indebtedness (other than Indebtedness between or
among any of the Issuer and its Restricted Subsidiaries) unless, after giving
effect thereto, the Cash Flow Ratio shall be less than or equal to 9 to 1.
LIMITATION ON RESTRICTED PAYMENTS. The Indentures provide that, so long as
any of the debt securities of such series remain outstanding, CSC Holdings will
not, and will not permit any Restricted Subsidiary to, make any Restricted
Payment if (a) at the time of such proposed Restricted Payment, a Default or
Event of Default has occurred and is continuing or will occur as a consequence
of such Restricted Payment or (b) immediately after giving effect to such
Restricted Payment, the aggregate of all
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Restricted Payments that have been made on or after July 1, 1988 would exceed
the sum of:
- $25,000,000, plus
- an amount equal to the difference between (A) the Cumulative Cash Flow
Credit and (B) 1.2 multiplied by Cumulative Interest Expense.
For purposes of the "Limitation on Restricted Payments" covenant, the amount
of any Restricted Payment, if other than cash, shall be based upon fair market
value as determined by the Board of Directors of CSC Holdings, whose good faith
determination shall be conclusive.
The provisions above do not prevent: (i) the payment of any dividend within
60 days after the date of declaration thereof, if at such date of declaration
such payment complied with the above provisions; and (ii) the retirement,
redemption, purchase, defeasance or other acquisition of any shares of CSC
Holdings' capital stock or warrants, rights or options to acquire capital stock
of CSC Holdings, in exchange for, or out of the proceeds of a sale (within one
year before or 180 days after such retirement, redemption, purchase, defeasance
or other acquisition) of, other shares of CSC Holdings' capital stock or
warrants, rights or options to acquire capital stock of CSC Holdings. For
purposes of determining the aggregate permissible amount of Restricted Payments
in accordance with clause (b) of the first paragraph of this covenant, all
amounts expended pursuant to clause (i) of this paragraph shall be included and
all amounts expended or received pursuant to clause (ii) of this paragraph shall
be excluded; PROVIDED, HOWEVER, that amounts paid pursuant to clause (i) of this
paragraph shall be included only to the extent that such amounts were not
previously included in calculating Restricted Payments.
For the purposes of the provisions above, the net proceeds from the issuance
of shares of CSC Holdings' capital stock upon conversion of Indebtedness will be
deemed to be an amount equal to the accumulated value of such Indebtedness on
the date of such conversion and the additional consideration, if any, CSC
Holdings receives upon such conversion, minus any cash payment on account of
fractional shares (such consideration, if in property other than cash, to be
determined by CSC Holdings' Board of Directors, whose good faith determination
shall be conclusive). If CSC Holdings makes a Restricted Payment which, at the
time of the making of such Restricted Payment, would be in CSC Holdings' good
faith determination permitted under the requirements of this covenant, such
Restricted Payment will be deemed to have been made in compliance with this
covenant notwithstanding any subsequent adjustments made in good faith to CSC
Holdings' financial statements affecting Cumulative Cash Flow Credit or
Cumulative Interest Expense for any period.
LIMITATION ON INVESTMENTS IN UNRESTRICTED SUBSIDIARIES AND AFFILIATES. The
Indentures provide that CSC Holdings will not, and will not permit any
Restricted Subsidiary to, directly or indirectly, make any Investment or allow
any Restricted Subsidiary to become an Unrestricted Subsidiary, in each case
unless (a) no Default or Event of Default has occurred and is continuing or will
occur as a consequence of such Investment or such redesignation of a Restricted
Subsidiary, and (b) after giving effect thereto, the Cash Flow Ratio shall be
less than or equal to 9 to 1.
The preceding provisions of this covenant will not prohibit any renewal or
reclassification of any Investment existing on the date hereof or trade credit
extended on usual and customary terms in the ordinary course of business.
TRANSACTIONS WITH AFFILIATES. The Indentures provide that CSC Holdings will
not and will not permit any of its subsidiaries to, sell, lease, transfer or
otherwise dispose of any of its properties or assets to or purchase any property
or assets from, or enter into any contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, an Affiliate of CSC Holdings
that is not a subsidiary of CSC Holdings, having a value, or for consideration
having a value, in excess of $10,000,000 (individually or in the aggregate)
unless CSC Holdings' Board of Directors shall make a good faith determination
that the terms of such transaction are, taken as a whole, no less favorable to
CSC Holdings or such subsidiary, as the case may be, than those which might be
available in a comparable transaction with an unrelated person. For purposes of
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clarification, this provision shall not apply to Restricted Payments permitted
under "--Limitation on Restricted Payments".
COVENANT APPLICABLE TO SENIOR DEBT SECURITIES. Unless otherwise specified in
the applicable prospectus supplement, the following covenant will be applicable
with respect to any series of senior debt securities:
LIMITATION ON LIENS. The Senior Indenture provides that CSC Holdings will
not, and will not permit any Restricted Subsidiary to, directly or indirectly,
create, incur, assume or suffer to exist any Lien of any kind, except for
Permitted Liens, on or with respect to any of its property or assets, whether
owned at the date of the Senior Indenture or thereafter acquired, or any income,
profits or proceeds therefrom, or assign or otherwise convey any right to
receive income thereon, unless (x) in the case of any Lien securing Indebtedness
that is subordinated in right of payment to the senior debt securities of the
series offered pursuant to such prospectus supplement, the senior debt
securities of such series are secured by a Lien on such property, assets or
proceeds that is senior in priority to such Lien and (y) in the case of any
other Lien, the senior debt securities of such series are equally and ratably
secured.
COVENANT APPLICABLE TO SUBORDINATED DEBT SECURITIES. Unless otherwise
specified in the applicable prospectus supplement, the following covenant will
be applicable with respect to any series of subordinated debt securities:
LIMITATION ON SENIOR SUBORDINATED INDEBTEDNESS. The Senior Subordinated
Indenture provides that CSC Holdings will not, and will not permit any
Restricted Subsidiary to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become liable for, contingently or otherwise, or become
responsible for the payment of, contingently or otherwise, any Indebtedness
which is both senior in right of payment to the subordinated debt securities of
any series and expressly subordinate in right of payment to any other
Indebtedness of CSC Holdings. For purposes of this covenant, Indebtedness is
deemed to be senior in right of payment of the subordinated debt securities of a
series if it is not subordinate in right of payment to Senior Indebtedness at
least to the same extent as such subordinated debt securities are subordinate to
senior indebtedness.
If so indicated in the applicable prospectus supplement with respect to a
particular series of debt securities, CSC Holdings will also be subject to the
covenants described in the prospectus supplement.
CERTAIN DEFINITIONS RELATING TO OUR RESTRICTIVE COVENANTS. Unless otherwise
specified in the applicable prospectus supplement, the following definitions are
applicable to the Indenture relating to the debt securities being offered
pursuant to such prospectus supplement. Reference is made to the applicable
Indenture for the full definition of all such terms.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a person (a) existing at the
time such person is merged with or into CSC Holdings or a subsidiary or becomes
a subsidiary or (b) assumed in connection with the acquisition of assets from
such person.
"AFFILIATE" means, with respect to any specified person, any other person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified person. For the purposes of this definition,
"control" when used with respect to any specified person, means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "CONTROLLING" and "CONTROLLED" have meanings correlative to the
foregoing.
"ANNUALIZED OPERATING CASH FLOW" means, for any period of three complete
consecutive calendar months, an amount equal to Operating Cash Flow for such
period multiplied by four.
"AVERAGE LIFE" means, at any date of determination with respect to any debt
security, the quotient obtained by dividing (i) the sum of the products of (a)
the number of years from such date of determination to the dates of each
successive scheduled principal payment of such debt security and (b) the amount
of such principal
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payment by (ii) the sum of all such principal payments.
"BANKS" means the lenders from time to time under the Credit Agreement.
"CAPITALIZED LEASE OBLIGATION" means any obligation of a person to pay rent
or other amounts under a lease with respect to any property (whether real,
personal or mixed) acquired or leased by such person and used in its business
that is required to be accounted for as a liability on the balance sheet of such
person in accordance with GAAP, and the amount of such Capitalized Lease
Obligation shall be the amount so required to be accounted for as a liability.
"CASH FLOW RATIO" means, as at any date, the ratio of (i) the sum of the
aggregate outstanding principal amount of all Indebtedness of CSC Holdings and
the Restricted Subsidiaries determined on a consolidated basis but excluding all
Interest Swap Obligations entered into by CSC Holdings or any Restricted
Subsidiary and one of the Banks outstanding on such date plus (but without
duplication of Indebtedness supported by letters of credit) the aggregate
undrawn face amount of all letters of credit outstanding on such date to (ii)
Annualized Operating Cash Flow determined as at the last day of the most recent
month for which financial information is available.
"CONSOLIDATED NET TANGIBLE ASSETS" of any person means, as of any date, (a)
all amounts that would be shown as assets on a consolidated balance sheet of
such person and its Restricted Subsidiaries prepared in accordance with GAAP,
less (b) the amount thereof constituting goodwill and other intangible assets as
calculated in accordance with GAAP.
"CUMULATIVE CASH FLOW CREDIT" means the sum of:
- cumulative Operating Cash Flow during the period commencing on July 1,
1988 and ending on the last day of the most recent month preceding the
date of the proposed Restricted Payment for which financial information is
available or, if cumulative Operating Cash Flow for such period is
negative, minus the amount by which cumulative Operating Cash Flow is less
than zero; PLUS
- the aggregate net proceeds received by CSC Holdings from the issuance or
sale (other than to a Restricted Subsidiary) of its capital stock (other
than Disqualified Stock) on or after January 1, 1992; PLUS
- the aggregate net proceeds received by CSC Holdings from the issuance or
sale (other than to a Restricted Subsidiary) of its capital stock (other
than Disqualified Stock) on or after January 1, 1992, upon the conversion
of, or exchange for, Indebtedness of CSC Holdings or any Restricted
Subsidiary or from the exercise of any options, warrants or other rights
to acquire capital stock of CSC Holdings.
For purposes of this definition, the net proceeds in property other than
cash received by CSC Holdings as contemplated by clauses (b) and (c) above shall
be valued at the fair market value of such property (as determined by the Board
of Directors of CSC Holdings, whose good faith determination shall be
conclusive) at the date of receipt by CSC Holdings.
"CUMULATIVE INTEREST EXPENSE" means, for the period commencing on July 1,
1988 and ending on the last day of the most recent month preceding the proposed
Restricted Payment for which financial information is available, the aggregate
of the interest expense of CSC Holdings and its Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP, including
interest expense attributable to Capitalized Lease Obligations.
"DEBT" with respect to any person means, without duplication, any liability,
whether or not contingent:
- in respect of borrowed money or evidenced by bonds, notes, debentures or
similar instruments or letters of credit (or reimbursement agreements with
respect thereto), but excluding reimbursement obligations under any surety
bond;
- representing the balance deferred and unpaid of the purchase price of any
property (including pursuant to Capitalized Lease Obligations), except any
such balance that constitutes a trade payable;
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- under Interest Swap Agreements (as defined in the Credit Agreement)
entered into pursuant to the Credit Agreement;
- under any other agreement related to the fixing of interest rates on any
Indebtedness, such as an interest swap, cap or collar agreement (if and to
the extent any of the foregoing would appear as a liability upon a balance
sheet of such person prepared on a consolidated basis in accordance with
GAAP); or
- guarantees of items of other persons which would be included within this
definition for such other persons (whether or not the guarantee would
appear on such balance sheet).
"DEBT" does not include:
- Disqualified Stock;
- any liability for federal, state, local or other taxes owed or owing by
such person; or
- any accounts payable or other liability to trade creditors arising in the
ordinary course of business (including guarantees thereof or instruments
evidencing such liabilities).
"DISQUALIFIED STOCK" means, with respect to any series of debt securities,
any capital stock of CSC Holdings or any Restricted Subsidiary which, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the maturity date of such series of debt securities.
"INDEBTEDNESS" with respect to any person means the Debt of such person;
PROVIDED THAT, for purposes of the definition of "INDEBTEDNESS" (including the
term "DEBT" to the extent incorporated in such definition) and for purposes of
the definition of "EVENT OF DEFAULT", the term "GUARANTEE" shall not be
interpreted to extend to a guarantee under which recourse is limited to the
capital stock of an entity that is not a Restricted Subsidiary.
"INTEREST SWAP OBLIGATIONS" means, with respect to any person, the
obligations of such person pursuant to any arrangement with any other person
whereby, directly or indirectly, such person is entitled to receive from time to
time periodic payments calculated by applying either a floating or a fixed rate
of interest on a stated notional amount in exchange for periodic payments made
by such person calculated by applying a fixed or a floating rate of interest on
the same notional amount.
"INVESTMENT" means any advance, loan, account receivable (other than an
account receivable arising in the ordinary course of business), or other
extension of credit (excluding, however, accrued and unpaid interest in respect
of any advance, loan or other extension of credit) or any capital contribution
to (by means of transfers of property to others, payments for property or
services for the account or use of others, or otherwise), any purchase or
ownership of any stock, bonds, notes, debentures or other securities (including,
without limitation, any interests in any partnership or joint venture) of, or
any bank accounts with or guarantee of any Indebtedness or other obligations of,
any Unrestricted Subsidiary or Affiliate that is not a subsidiary of CSC
Holdings, PROVIDED THAT (i) the term "INVESTMENT" shall not include any
transaction that would otherwise constitute an Investment of CSC Holdings or a
subsidiary of CSC Holdings to the extent that the consideration provided by CSC
Holdings or such subsidiary in connection therewith shall consist of capital
stock of CSC Holdings (other than Disqualified Stock) and (ii) the term
"GUARANTEE" shall not be interpreted to extend to a guarantee under which
recourse is limited to the capital stock of an entity that is not a Restricted
Subsidiary.
"LIEN" means any lien, security interest, charge or encumbrance of any kind
(including any conditional sale or other title retention agreement, any lease in
the nature of a security interest and any agreement to give any security
interest). A person shall be deemed to own subject to a Lien any property which
such person has acquired or holds subject to the interest of a vendor or lessor
under a conditional sale agreement, capital lease or other title retention
agreement.
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"MANDATORILY REDEEMABLE PREFERRED STOCK" means CSC Holdings' Series H
Redeemable Exchangeable Preferred Stock, Series M Redeemable Exchangeable
Preferred Stock and any other series of capital stock of CSC Holdings that is
Disqualified Stock outstanding at the time of issuance of the applicable series
of debt securities and any series of preferred stock of CSC Holdings issued in
exchange for, or the proceeds of which are used to repurchase, redeem, defease
or otherwise acquire, all or any portion of the Series H Redeemable Exchangeable
Preferred Stock, Series M Redeemable Exchangeable Preferred Stock or any other
Mandatorily Redeemable Preferred Stock.
"OPERATING CASH FLOW" means, for any period, the sum of the following for
the Issuer and the Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP (except for the amortization of
deferred installation income which shall be excluded from the calculation of
Operating Cash Flow for all purposes of the Indenture): aggregate operating
revenues minus aggregate operating expenses (including technical, programming,
sales, selling, general and administrative expenses and salaries and other
compensation, net of amounts allocated to Affiliates, paid to any general
partner, director, officer or employee of CSC Holdings or any Restricted
Subsidiary, but excluding interest, depreciation and amortization and the amount
of non-cash compensation in respect of CSC Holdings' employee incentive stock
programs for such period (not to exceed in the aggregate for any calendar year
7% of the Operating Cash Flow for the previous calendar year) and, to the extent
otherwise included in operating expenses, any losses resulting from a write-off
or write-down of Investments by CSC Holdings or any Restricted Subsidiary in
Affiliates). For purposes of determining Operating Cash Flow, there shall be
excluded all management fees until actually paid to CSC Holdings or any
Restricted Subsidiary in cash.
"PERMITTED LIENS" means the following types of Liens:
- Liens existing on the applicable issuance date of debt securities of a
series;
- Liens on shares of the capital stock of an entity that is not a Restricted
Subsidiary, which Liens solely secure a guarantee by CSC Holdings or a
Restricted Subsidiary, or both, of Indebtedness of such entity;
- Liens on Receivables and Related Assets (and proceeds thereto) securing
only Indebtedness otherwise permitted to be incurred by a Securitization
Subsidiary;
- Liens on shares of the capital stock of a subsidiary of CSC Holdings
securing Indebtedness under the Credit Agreement or any renewal of or
replacement of the Credit Agreement;
- Liens granted in favor of CSC Holdings or any Restricted Subsidiary;
- Liens securing the debt securities;
- Liens securing Acquired Indebtedness created prior to (and not in
connection with or in contemplation of) the incurrence of such
Indebtedness by CSC Holdings or a Restricted Subsidiary; PROVIDED THAT
such Lien does not extend to any property or assets of CSC Holdings or any
Restricted Subsidiary other than the assets acquired in connection with
the incurrence of such Acquired Indebtedness;
- Liens securing Interest Swap Obligations or "MARGIN STOCK", as defined in
Regulations G and U of the Board of Governors of the Federal Reserve
System;
- statutory Liens of landlords and carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen or other like liens arising in the
ordinary course of business of CSC Holdings or any Restricted Subsidiary
and with respect to amounts not yet delinquent or being contested in good
faith by appropriate proceedings;
- Liens for taxes, assessments, government charges or claims not yet due or
that are being contested in good faith by appropriate proceedings;
- zoning restrictions, easements, rights-of-way, restrictions and other
similar charges or encumbrances or minor defects
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in title not interfering in any material respect with the business of CSC
Holdings or any of its Restricted Subsidiaries;
- Liens arising by reason of any judgment, decree or order of any court,
arbitral tribunal or similar entity so long as any appropriate legal
proceedings that may have been initiated for the review of such judgment,
decree or order shall not have been finally terminated or the period
within which such proceedings may be initiated shall not have expired;
- Liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
types of social security or similar legislation;
- Liens securing the performance of bids, tenders, leases, contracts,
franchises, public or statutory obligations, surety, stay or appeal bonds,
or other similar obligations arising in the ordinary course of business;
- Leases under which CSC Holdings or any Restricted Subsidiary is the lessee
or the lessor;
- purchase money mortgages or other purchase money liens (including without
limitation any Capital Lease Obligations) upon any fixed or capital assets
acquired after the applicable issuance date of debt securities of a
series, or purchase money mortgages (including without limitation
Capitalized Lease Obligations) on any such assets hereafter acquired or
existing at the time of acquisition of such assets, whether or not
assumed, so long as such mortgage or lien does not extend to or cover any
other asset of CSC Holdings or any Restricted Subsidiary and such mortgage
or lien secures the obligation to pay the purchase price of such asset,
interest thereon and other charges incurred in connection therewith (or
the obligation under such Capitalized Lease Obligation) only;
- Liens securing reimbursement obligations with respect to commercial
letters of credit which encumber documents and other property relating to
such letters of credit and products and proceeds thereof;
- Liens encumbering deposits made to secure obligations arising from
statutory, regulatory, contractual or warranty requirements of CSC
Holdings or any of its Restricted Subsidiaries, including rights of offset
and set-off;
- Liens to secure other Indebtedness; PROVIDED, HOWEVER, that the principal
amount of any Indebtedness secured by such Liens, together with the
principal amount of any Indebtedness refinancing any Indebtedness incurred
under this clause as permitted by the immediately following clause (and
successive refinancings thereof), may not exceed 15% of CSC Holdings'
Consolidated Net Tangible Assets as of the last day of CSC Holdings' most
recently completed fiscal year for which financial information is
available; and
- any extension, renewal or replacement, in whole or in part, of any Lien
described in the immediately preceding clauses; PROVIDED THAT any such
extension, renewal or replacement shall be no more restrictive in any
material respect than the Lien so extended, renewed or replaced and shall
not extend to any additional property or assets.
"RECEIVABLES AND RELATED ASSETS" means
- accounts receivable, instruments, chattel paper, obligations, general
intangibles, equipment and other similar assets, including interests in
merchandise or goods, the sale or lease of which gives rise to the
foregoing, related contractual rights, guarantees, insurance proceeds,
collections and other related assets;
- equipment;
- inventory; and
- proceeds of all of the above.
"REFINANCING INDEBTEDNESS" means, with respect to any series of senior debt
securities, Indebtedness of CSC Holdings incurred to
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redeem, repurchase, defease or otherwise acquire or retire for value other
Indebtedness that is subordinate in right of payment to such senior debt
securities, so long as any such new Indebtedness (i) is made subordinate to such
senior debt securities at least to the same extent as the Indebtedness being
refinanced and (ii) does not have (x) an Average Life less than the Average Life
of the Indebtedness being refinanced, (y) a final scheduled maturity earlier
than the final scheduled maturity of the Indebtedness being refinanced or (z)
permit redemption at the option of the holder earlier than the earlier of (A)
the final scheduled maturity of the Indebtedness being refinanced or (B) any
date of redemption at the option of the holder of the Indebtedness being
refinanced.
"RESTRICTED PAYMENT" means, with respect to any series of debt securities,
- any Stock Payment by CSC Holdings or a Restricted Subsidiary;
- any direct or indirect payment to redeem, purchase, defease or otherwise
acquire or retire for value, or permit any Restricted Subsidiary to
redeem, purchase, defease or otherwise acquire or retire for value, prior
to any scheduled maturity, scheduled repayment or scheduled sinking fund
payment, any Indebtedness of CSC Holdings that is subordinate in right of
payment to such debt securities; PROVIDED, HOWEVER, that, with respect to
any series of senior debt securities, any direct or indirect payment to
redeem, purchase, defease or otherwise acquire or retire for value, or
permit any Restricted Subsidiary to redeem, repurchase, defease or
otherwise acquire or retire for value, prior to any scheduled maturity,
scheduled repayment or scheduled sinking fund payment, any Indebtedness
that is subordinate in right of payment to such senior debt securities
shall not be a Restricted Payment if either (i) after giving effect
thereto, the ratio of the Senior Indebtedness of CSC Holdings and the
Restricted Subsidiaries to Annualized Operating Cash Flow determined as of
the last day of the most recent month for which financial information is
available is less than or equal to 5 to 1 or (ii) such subordinate
Indebtedness is redeemed, purchased, defeased or otherwise acquired or
retired in exchange for, or out of, (x) the proceeds of a sale (within one
year before or 180 days after such redemption, purchase, defeasance,
acquisition or retirement) of Refinancing Indebtedness or capital stock of
CSC Holdings or warrants, rights or options to acquire capital stock of
CSC Holdings or (y) any source of funds other than the incurrence of
Indebtedness; or
- any direct or indirect payment to redeem, purchase, defease or otherwise
acquire or retire for value any Disqualified Stock at its mandatory
redemption date or other maturity date if and to the extent that
Indebtedness is incurred to finance such redemption, purchase, defeasance
or other acquisition or retirement; PROVIDED, HOWEVER, that the
redemption, purchase, defeasance or other acquisition or retirement of
Mandatorily Redeemable Preferred Stock at its mandatory redemption or
other maturity date shall not be a Restricted Payment if and to the extent
any Indebtedness incurred to finance all or a portion of the purchase or
redemption price does not have a final scheduled maturity date, or permit
redemption at the option of the holder thereof, earlier than the final
scheduled maturity of such series of debt securities.
Notwithstanding the foregoing, Restricted Payments shall not include (x)
payments by any Restricted Subsidiary to CSC Holdings or any other Restricted
Subsidiary or (y) any Investment or designation of a Restricted Subsidiary as an
Unrestricted Subsidiary permitted under the "Limitation on Investments in
Unrestricted Subsidiaries and Affiliates" covenant.
"RESTRICTED SUBSIDIARY" means any subsidiary of CSC Holdings, whether
existing on the date of the applicable Indenture or created subsequent thereto,
designated from time to time by CSC Holdings as a "Restricted Subsidiary",
PROVIDED, HOWEVER, that no subsidiary that is not a Securitization Subsidiary
can be or remain so
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designated unless (i) at least 67% of each of the total equity interest and the
voting control of such subsidiary is owned, directly or indirectly, by CSC
Holdings or another Restricted Subsidiary and (ii) such subsidiary is not
restricted, pursuant to the terms of any loan agreement, note, indenture or
other evidence of indebtedness, from (a) paying dividends or making any
distribution on such subsidiary's capital stock or other equity securities or
paying any Indebtedness owed to CSC Holdings or to any Restricted Subsidiary,
(b) making any loans or advances to CSC Holdings or any Restricted Subsidiary or
(c) transferring any of its properties or assets to CSC Holdings or any
Restricted Subsidiary (it being understood that a financial covenant any of the
components of which are directly impacted by the taking of the action (e.g., the
payment of a dividend) itself (such as a minimum net worth test) would be deemed
to be a restriction on the foregoing actions, while a financial covenant none of
the components of which is directly impacted by the taking of the action (e.g.,
the payment of a dividend) itself (such as a debt to cash flow test) would not
be deemed to be a restriction on the foregoing actions); and PROVIDED FURTHER
that CSC Holdings may, from time to time, redesignate any Restricted Subsidiary
as an Unrestricted Subsidiary in accordance with the provisions of the
"Limitation on Investments in Unrestricted Subsidiaries and Affiliates"
covenant.
"SECURITIZATION SUBSIDIARY" means a Restricted Subsidiary that is
established for the limited purpose of acquiring and financing Receivables and
Related Assets and engaging in activities ancillary thereto; PROVIDED THAT (i)
no portion of the Indebtedness of a Securitization Subsidiary is guaranteed by
or is recourse to CSC Holdings or any other Restricted Subsidiary (other than
recourse for customary representations, warranties, covenants and indemnities,
none of which shall relate to the collectibility of the Receivables and Related
Assets) and (ii) none of CSC Holdings or any other Restricted Subsidiary has any
obligation to maintain or preserve such Securitization Subsidiary's financial
condition.
"SENIOR INDEBTEDNESS" means, with respect to the subordinated debt
securities of any series except as otherwise provided in the applicable
prospectus supplement, the principal, premium, if any, interest, if any
(including post-petition interest in any proceeding under any bankruptcy law,
whether or not such interest is an allowed claim enforceable against the debtor
in a proceeding under such bankruptcy law), penalties, fees and other
liabilities payable with respect to (i) all Debt of CSC Holdings, other than the
junior subordinated debt securities, if any (to which the subordinated debt
securities of such series are intended to be senior) and the subordinated debt
securities and CSC Holdings' 9 7/8% Senior Subordinated Notes due 2005, 9 7/8%
Senior Subordinated Notes due 2006, 9 7/8% Senior Subordinated Debentures due
2013, 10 1/2% Senior Subordinated Debentures due 2016 and 9 7/8% Senior
Subordinated Debentures due 2023 (with which the Subordinated Debt Securities of
such series are intended to rank on a parity), whether outstanding on the date
of the Indenture or thereafter created, incurred or assumed, which is (x) for
money borrowed, (y) evidenced by a note or similar instrument given in
connection with the acquisition of any business, properties or assets of any
kind or (z) in respect of any Capitalized Lease Obligations and (ii) all
renewals, extensions, refundings, increases or refinancings thereof, unless, in
the case of (i) or (ii) above, the instrument under which the Debt is created,
incurred, assumed or guaranteed expressly provides that such Debt is not senior
in right of payment to the subordinated debt securities of any series.
Notwithstanding anything to the contrary contained herein, "SENIOR INDEBTEDNESS"
shall mean and include all amounts of Senior Indebtedness that are such by
virtue of clause (i) and (ii) of the foregoing definition that are repaid by CSC
Holdings and subsequently recovered from the holder of such Senior Indebtedness
under any applicable bankruptcy laws or otherwise (other than by reason of some
wrongful conduct on the part of the holders of such Debt).
"STOCK PAYMENT" means, with respect to any person, the payment or
declaration of any dividend, either in cash or in property (except dividends
payable in common stock or common shares of capital stock of such person), or
the making by such person of any other distribution, on account of any shares of
any class of its capital stock, now or hereafter outstanding, or the redemption,
purchase, retirement or other
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acquisition for value by such person, directly or indirectly, of any shares of
any class of its capital stock, now or hereafter outstanding, other than the
redemption, purchase, defeasance or other acquisition or retirement for value of
any Disqualified Stock at its mandatory redemption date or other maturity date.
"UNRESTRICTED SUBSIDIARY" means any subsidiary of CSC Holdings which is not
a Restricted Subsidiary.
SATISFACTION AND DISCHARGE
Except as noted below, the Indentures will cease to be of further effect,
and CSC Holdings will be deemed to have satisfied and discharged the Indentures,
when the following conditions (among others) have been satisfied:
- all debt securities not previously delivered to the Trustee for
cancellation have become due and payable or will become due and payable at
their stated maturity or on a redemption date within one year, and
- CSC Holdings deposits with the Trustee, in trust, funds sufficient to pay
the entire indebtedness on those debt securities not previously delivered
for cancellation, for the principal and interest (including any Additional
Sums) to the date of the deposit (for debt securities that have become due
and payable) or to the stated maturity or the redemption date, as the case
may be (for debt securities that have not become due and payable).
CSC Holdings will remain obligated in certain ministerial respects including
providing for registration of transfer and exchange and providing notices of
redemption.
DEFEASANCE
The following discussion of full defeasance and covenant defeasance will be
applicable to your series of debt securities only if CSC Holdings chooses to
have them apply to that series. If CSC Holdings does so choose, CSC Holdings
will state that in the applicable prospectus supplement.
FULL DEFEASANCE. If there is a change in federal tax law, as described
below, CSC Holdings can legally release itself from any payment or other
obligations on the debt securities (called "FULL DEFEASANCE") if CSC Holdings
puts in place the following other arrangements for you to be repaid:
- CSC Holdings must deposit in trust for your benefit and the benefit of all
other registered holders of the debt securities a combination of money and
U.S. government or U.S. government agency notes or bonds that will
generate enough cash to make interest, principal and any other payments on
the debt securities on their various due dates (including, possibly their
earlier redemption date).
- Under current federal tax law, the deposit and CSC Holdings' legal release
from the debt securities would likely be treated as though you surrendered
your debt securities in exchange for your share of the cash and notes or
bonds deposited in trust. In that event, you could recognize gain or loss
on the debt securities you surrendered. In order for CSC Holdings to
effect a full defeasance, CSC Holdings must deliver to the Trustee a legal
opinion confirming that you will not recognize income gain or loss for
federal income tax purposes as a result of the defeasance and that you
will not be taxed on the debt securities any differently than if CSC
Holdings did not make the deposit and just repaid the debt securities
itself.
If CSC Holdings accomplishes a full defeasance, as described above, you would
have to rely solely on the trust deposit for repayment on the debt securities.
You could not look to CSC Holdings for repayment in the unlikely event of any
shortfall. Conversely, the trust deposit would most likely be protected from
claims of CSC Holdings' lenders and other creditors if CSC Holdings ever becomes
bankrupt or insolvent. You would also be released from any applicable
subordination provisions on the subordinated debt securities described below
under "--Default and Related Matters-- Subordination".
COVENANT DEFEASANCE. Under current federal tax law, CSC Holdings can make
the same type of deposit described above and be released from
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some of the restrictive covenants in the debt securities. This is called
"COVENANT DEFEASANCE". In that event, you would lose the protection of those
restrictive covenants but would gain the protection of having money and
securities set aside in trust to repay the debt securities, and you would be
released from any applicable subordination provisions on the subordinated debt
securities described later under "--Default and Related Matters--Subordination".
In order to achieve covenant defeasance, CSC Holdings must do the following:
- CSC Holdings must deposit in trust for your benefit and the benefit of all
other registered holders of the debt securities a combination of money and
U.S. government or U.S. government agency notes or bonds that will
generate enough cash to make interest, principal and any other payments on
the debt securities on their various due dates.
- CSC Holdings must deliver to the Trustee a legal opinion confirming that
under current federal income tax law it may make the above deposit without
causing you to be taxed on the debt securities any differently than if CSC
Holdings did not make the deposit and just repaid the debt securities
itself.
If CSC Holdings accomplishes covenant defeasance, the following provisions
of the Indenture and the debt securities would no longer apply:
- CSC Holdings' promises regarding conduct of its business and other matters
previously described under "--Covenants" and any other covenants
applicable to the series of debt securities and described in the
prospectus supplement;
- the condition regarding the treatment of Liens when CSC Holdings merges or
engages in similar transactions, as previously described under "--Special
Situations--Mergers and Similar Events"; and
- the definition of an Event of Default as a breach of such covenants,
described below under "--Default and Related Matters-- Events of
Default--What Is an Event of Default?".
If CSC Holdings accomplishes covenant defeasance, you can still look to CSC
Holdings for repayment of the debt securities if there were a shortfall in the
trust deposit. In fact, if one of the remaining Events of Default occurred (such
as our bankruptcy) and the debt securities become immediately due and payable,
there may be such a shortfall. Depending on the event causing the default, of
course, you may not be able to obtain payment of the shortfall.
In order to exercise either defeasance or covenant defeasance, CSC Holdings
must comply with certain conditions, and in the case of subordinated debt
securities, no event or condition can exist that, pursuant to certain provisions
described under "--Default and Related Matters--Subordination" below, would
prevent CSC Holdings from making payments of principal of and premium, if any,
and interest, if any, on the senior debt securities or subordinated debt
securities of such series on the date the irrevocable deposit is made or at any
time during the period ending on the 91st day after the deposit date.
DEFAULT AND RELATED MATTERS
RANKING
Unless provided otherwise in the applicable prospectus supplement, the debt
securities are not secured by any of CSC Holdings' property or assets.
Accordingly, your ownership of debt securities means you are one of CSC
Holdings' unsecured creditors. The senior debt securities are not subordinated
to any of CSC Holdings' other debt obligations and therefore they rank equally
with all CSC Holdings' other unsecured and unsubordinated indebtedness. The
subordinated debt securities are subordinated to some of CSC Holdings' existing
and future debt and other liabilities. See "--Subordination" for additional
information on how subordination limits your ability to receive payment or
pursue other rights if CSC Holdings defaults or has certain other financial
difficulties.
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EVENTS OF DEFAULT
You will have special rights if an Event of Default occurs and is not cured,
as described later in this subsection.
WHAT IS AN EVENT OF DEFAULT? The term "EVENT OF DEFAULT" for the Senior
Indenture and the Senior Subordinated Indenture only means any of the following:
- CSC Holdings does not pay the principal or any premium on a debt security
on the date it is due (whether at maturity, upon redemption or upon
acceleration).
- CSC Holdings does not pay interest on a debt security within 30 days of
its due date.
- CSC Holdings does not deposit any sinking fund payment on its due date.
- CSC Holdings remains in breach of a restrictive covenant or any other term
of the Indenture for 60 days (or, with respect to certain covenants and
terms, 30 days) after CSC Holdings receives a notice of default stating
CSC Holdings is in breach. The notice must be sent by either the Trustee
or holders of 25% of the principal amount of debt securities of the
affected series.
- A default in certain other debt of CSC Holdings totaling $10,000,000 or
more without CSC Holdings contesting the default.
- A judgment is entered against CSC Holdings in an amount exceeding
$10,000,000 and remains undischarged and unstayed for 60 days or as to
which a creditor has commenced an enforcement proceeding.
- CSC Holdings files for bankruptcy or certain other events in bankruptcy,
insolvency or reorganization occur.
- Any other Event of Default described in the applicable prospectus
supplement occurs.
REMEDIES IF AN EVENT OF DEFAULT OCCURS. If an Event of Default has occurred
and has not been cured, the Trustee or the holders of 25% in principal amount of
the debt securities of the affected series may declare the entire principal
amount of and accrued interest on all the debt securities of that series to be
due and immediately payable. This is called a declaration of acceleration of
maturity. If an Event of Default occurs because of certain events in bankruptcy,
insolvency or reorganization, the principal amount of all the debt securities of
that series will be automatically accelerated, without any action by the Trustee
or any holder. There are special notice and timing rules which apply to the
acceleration of subordinated debt securities which are designed to protect the
interests of holders of senior debt.
A declaration of acceleration of maturity may be cancelled by the holders of
at least a majority in principal amount of the debt securities of the affected
series if (i) all existing Events of Default, other than the nonpayment of
principal of or premium or interest, if any, on the debt securities of such
series which have become due solely because of the acceleration, have been cured
or waived and (ii) the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction. A declaration of acceleration because of
an Event of Default which occurs because CSC Holdings has defaulted under our
other debt totaling $10,000,000 or more would be automatically annulled if the
debt on which CSC Holdings defaulted were discharged, or the holders of such
debt rescinded their declaration of acceleration, within 30 days after the
acceleration of the debt securities of such series and no other Event of Default
had occurred and not been cured or waived during such period.
Except in cases of default, where the Trustee has some special duties, the
Trustee is not required to take any action under an Indenture at the request of
any holders unless the holders offer the Trustee reasonable protection from
expenses and liability (called an "INDEMNITY"). If reasonable indemnity is
provided, the holders of a majority in principal amount of the outstanding debt
securities of the relevant series may direct the time, method and place of
conducting any lawsuit or other formal legal action seeking any remedy available
to the Trustee. These majority holders may also direct the Trustee in performing
any other action under the Indenture.
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Before you bypass the Trustee and bring your own lawsuit or other formal
legal action or take other steps to enforce your rights or protect your
interests relating to the debt securities, the following must occur:
- You must give the Trustee written notice that an Event of Default has
occurred and remains uncured.
- The holders of 25% in principal amount of all outstanding debt securities
of the relevant series must make a written request that the Trustee take
action because of the default, must not give the Trustee any direction
inconsistent with such written request, and must offer reasonable
indemnity to the Trustee against the cost and other liabilities of taking
that action.
- The Trustee must have not taken action for 60 days after receipt of the
above notice and offer of indemnity.
However, you are entitled at any time to bring a lawsuit for the payment of
money due on your debt security on or after its due date.
"STREET NAME" AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR
BROKERS FOR INFORMATION ON HOW TO GIVE NOTICE OR DIRECTION TO OR MAKE A
REQUEST OF THE TRUSTEE AND TO MAKE OR CANCEL A DECLARATION OF ACCELERATION.
CSC Holdings will furnish to the Trustee every year a written statement of
certain of its officers certifying that to their knowledge it is in compliance
with the applicable Indenture and the debt securities, or else specifying any
default.
SUBORDINATION
Unless the prospectus supplement provides otherwise, the following
provisions will apply to the subordinated debt securities:
The payment of principal, any premium and interest on the subordinated debt
securities is subordinated in right of payment to the prior payment in full of
all of CSC Holdings' Senior Indebtedness. This means that in certain
circumstances where CSC Holdings may not be making payments on all of its debt
obligations as they come due, the holders of all of CSC Holdings' Senior
Indebtedness will be entitled to receive payment in full of all amounts that are
due or will become due on the Senior Indebtedness before you and the other
registered holders of subordinated debt securities will be entitled to receive
any payment or distribution (other than in the form of subordinated securities)
on the subordinated debt securities. These circumstances include the following
circumstances:
- CSC Holdings makes a payment or distributes assets to creditors upon any
liquidation, dissolution, winding up or reorganization of our company, or
as part of an assignment or marshalling of its assets for the benefit of
its creditors.
- CSC Holdings files for bankruptcy or certain other events in bankruptcy,
insolvency or similar proceedings occur.
- The maturity of the subordinated debt securities is accelerated. For
example, the entire principal amount of a series of subordinated debt
securities may be declared to be due and immediately payable or may be
automatically accelerated due to an Event of Default as described under
"--Events of Default".
In addition, CSC Holdings is generally not permitted to make payments of
principal, any premium or interest on the subordinated debt securities if CSC
Holdings defaults in its obligation to make payments on Senior Indebtedness and
does not cure such default.
CSC Holdings is also prohibited from making payments on subordinated debt
securities if an Event of Default (other than a payment default) that permits
the holders of Senior Indebtedness to accelerate the maturity of the Senior
Indebtedness occurs and the agent banks under its credit agreement notify them
and the Trustee; however, unless the Senior Indebtedness has been accelerated
because of that Event of Default, this payment blockage cannot last more than
120 days. Not more than one of these payment blockage notices can be given every
240 days.
These subordination provisions mean that if CSC Holdings is insolvent a
holder of its Senior Indebtedness may ultimately receive out of its
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assets more than a holder of the same amount of its subordinated debt
securities, and a creditor of CSC Holdings that is owed a specific amount but
who owns neither its Senior Indebtedness nor its subordinated debt securities
may ultimately receive less than a holder of the same amount of Senior
Indebtedness and more than a holder of subordinated debt securities.
The Senior Subordinated Indenture does not limit the amount of Senior
Indebtedness CSC Holdings is permitted to have and we may in the future incur
additional Senior Indebtedness.
REGARDING THE TRUSTEE
The Bank of New York is the Trustee under the Senior Indenture, the Senior
Subordinated Indenture, the Junior Subordinated Indentures and CSC Holdings'
existing senior and senior subordinated indebtedness. The Bank of New York is
also party to certain credit agreements with CSC Holdings and its subsidiaries,
including the Credit Agreement. The Bank of New York also maintains other
banking and escrow arrangements with us in the ordinary course of business.
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WE MAY OFFER PREFERRED STOCK, WHICH MAY BE OFFERED
IN THE FORM OF DEPOSITARY SHARES REPRESENTING FRACTIONAL
SHARES OF PREFERRED STOCK
This section describes the general terms and provisions of the preferred
stock we may offer by this prospectus. The applicable prospectus supplement will
describe the specific terms of the series of preferred stock then offered, and
the terms and provisions described in this section will apply only to the extent
not superseded by the terms of the applicable prospectus supplement.
This section is only a summary of the preferred stock we may offer and does
not include a complete description of CSC Holdings' outstanding preferred stock.
We have filed and have incorporated by reference our certificates of
incorporation and the certificates of designation relating to CSC Holdings'
outstanding preferred stock. We urge you to read carefully our certificates of
incorporation and the certificates of designation before you buy any preferred
stock.
BOOK-ENTRY SECURITIES
The preferred stock may be issued in whole or in part in the form of one or
more Global Securities. See "Description of the Securities We May Offer" for
additional information about your limited rights as the beneficial owner of a
Global Security.
CSC HOLDINGS' OUTSTANDING SERIES OF PREFERRED STOCK
Our certificates of incorporation permit each of Cablevision and CSC
Holdings to issue, without prior permission from our stockholders, up to
10,000,000 shares of preferred stock. As of December 31, 1998, Cablevision had
no preferred stock outstanding; CSC Holdings had previously authorized:
- 200,000 shares of Series B Cumulative Convertible Preferred Stock, $.01
par value and $100 liquidation value per share (the "SERIES B PREFERRED
STOCK"), none of which are expected to be issued nor are outstanding;
- 112,500 shares of Series C Cumulative Preferred Stock, $.01 par value and
$100 liquidation value per share (the "SERIES C PREFERRED STOCK"), none of
which are expected to be issued nor are outstanding;
- 112,500 shares of Series D Cumulative Preferred Stock, $.01 par value and
$100 liquidation value per share (the "SERIES D PREFERRED STOCK"), which
would be issuable upon conversion of the Series C Preferred Stock (none of
which are outstanding);
- 4,500,000 shares of 11 3/4% Series H Redeemable Exchangeable Preferred
Stock, $.01 par value and $100 initial liquidation preference per share
(the "SERIES H PREFERRED STOCK"), of which 3,649,530 shares were
outstanding as of January 1, 1999;
- 1,380,000 shares of 8 1/2% Series I Cumulative Convertible Exchangeable
Preferred Stock, $.01 par value and $250 liquidation value per share (the
"SERIES I PREFERRED STOCK"), 1,380,000 shares of which were outstanding
and represented by 13,800,000 depositary shares as of December 31, 1998;
- 115,000 shares of 11 1/8% Series L Redeemable Exchangeable Preferred
Stock, $.01 par value and $10,000 liquidation value per share (the "SERIES
L PREFERRED STOCK"), none of which are outstanding; and
- 115,000 shares of 11 1/8% Series M Redeemable Exchangeable Preferred
Stock, $.01 par value and $10,000 liquidation value per share (the "SERIES
M PREFERRED STOCK"), 89,139 shares of which were outstanding and
represented by 891,386 depositary shares as of January 1, 1999.
The Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock, Series G Preferred Stock, Series H Preferred Stock, Series I Preferred
Stock, Series L Preferred Stock and Series M Preferred Stock are hereinafter
sometimes collectively referred to as
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the "AUTHORIZED PREFERRED STOCK". The right to dividends on shares of the
Authorized Preferred Stock are cumulative.
To date, CSC Holdings has cancelled:
- 200,000 shares of Series A Cumulative Convertible Preferred Stock in 1988;
- 100,000 shares of Series E Redeemable Exchangeable Convertible Preferred
Stock in 1996;
- 100,000 shares of Series F Redeemable Preferred Stock in 1996; and
- 4,500,000 shares of 11 3/4% Series G Redeemable Exchangeable Preferred
Stock in 1996.
TERMS OF OUR OUTSTANDING SERIES OF PREFERRED STOCK WHICH WILL LIMIT OUR FUTURE
SERIES OF PREFERRED STOCK
SERIES H PREFERRED STOCK
With respect to dividends and distributions upon the liquidation, winding up
and dissolution of CSC Holdings, the Series H Preferred Stock ranks:
- senior to all classes of common stock and each class of capital stock or
series of preferred stock which does not expressly provide that it ranks
senior to or equally with the Series H Preferred Stock for dividends and
liquidation distributions;
- equally with the Series B, Series C, Series D, Series I, Series L and
Series M Preferred Stock and each class of capital stock or series of
preferred stock which expressly provides that it ranks equally with Series
H Preferred Stock for dividends and liquidation distributions; and
- junior to each class of capital stock or series of preferred stock which
expressly provides that it ranks senior to the Series H Preferred Stock
for dividends and liquidation distributions.
Holders of Series H Preferred Stock receive cumulative dividends at an
annual rate of 11 3/4% or $11.75 per share. Dividends are payable at the end of
each quarter on January 1, April 1, July 1 and October 1 to the holder on the
record date set for each dividend payment.
CSC Holdings cannot pay dividends in full on any class of stock which ranks
equally with Series H Preferred Stock for any period, unless CSC Holdings has
paid cumulative dividends in full on the Series H Preferred Stock. If dividends
are not paid in full, the holders of Series H Preferred Stock will share
dividends PRO RATA with the holders of equally-ranking classes of stock. If any
dividends payable on the Series H Preferred Stock have not been paid in full,
CSC Holdings cannot pay any dividend on any class of stock which ranks junior to
Series H Preferred Stock, except dividends consisting of additional shares of
the junior-ranking stock, and cannot repurchase, redeem or otherwise retire the
junior-ranking stock or any warrants, rights, calls or options exercisable for
or convertible into any junior-ranking stock.
With at least 30 but not more than 60 days' notice, CSC Holdings can redeem
the Series H Preferred Stock on the following basis:
- at any time on or after October 1, 2002, some or all of the shares at
certain redemption prices plus accumulated and unpaid dividends;
- at any time before October 1, 2002 and within 180 days after a change in
control, all the shares at certain redemption prices; and
- on October 1, 2007, all outstanding shares of Series H Preferred Stock
must be redeemed at a price of $100 per share, plus accumulated and unpaid
dividends.
Dividends will continue to accumulate on the preferred stock until any
redemption price is paid in full.
On any scheduled dividend payment date, CSC Holdings can exchange the Series
H Preferred Stock for CSC Holdings' 11 3/4% Senior Subordinated Debentures due
2007.
If CSC Holdings is liquidated, wound up or dissolved, holders of Series H
Preferred Stock will receive $100 per share, plus all accrued and unpaid
dividends, before any distribution is made on any junior-ranking stock. If the
liquidation
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amounts payable on the Series H Preferred Stock and all other classes of stock
which are equally ranked are not paid in full, these holders will share in any
distribution of assets PRO RATA based on the liquidation value per share. After
the liquidation value is paid in full, the holders of Series H Preferred Stock
will not receive any further distribution of CSC Holdings' assets. For clarity,
neither a sale, conveyance, exchange or transfer of all or substantially all the
property or assets of CSC Holdings nor a consolidation or merger of CSC Holdings
with one or more corporations is a liquidation, dissolution or winding up of CSC
Holdings.
At every meeting of stockholders of CSC Holdings, holders of the Series H
Preferred Stock are entitled to cast 1/100 of a vote for each share of Series H
Preferred Stock held and, except as provided otherwise, vote together with all
other CSC Holdings' common and preferred stock as a single class. In addition,
if (a) dividends on the Series H Preferred Stock are overdue, unpaid and, if
after October 1, 2000, not paid in cash, for six consecutive or non-consecutive
quarterly periods, or (b) CSC Holdings does not redeem the Series H Preferred
Stock on October 1, 2007, the number of directors constituting CSC Holdings'
Board of Directors will be adjusted to permit the holders of a majority of the
outstanding Series H Preferred Stock, voting as a class, to elect a director.
These voting rights will continue until CSC Holdings pays all past-due dividends
in full and in the case of dividends payable after October 1, 2000, in cash, and
CSC Holdings' failure, if any, to redeem shares on October 1, 2007 is remedied,
at which time the term of the directors elected by the Series H Preferred Stock
holders will terminate. Any vacancy occurring in the office of this director
will be filled by the departing director unless the vacancy is filled by the
holders of the Series H Preferred Stock.
CSC Holdings cannot authorize any class of stock which ranks senior to the
Series H Preferred Stock without the consent of the holders of at least a
majority of the outstanding shares of Series H Preferred Stock, voting as a
class. CSC Holdings cannot amend the certificate of designations for the Series
H Preferred Stock in any way that adversely affects the rights of holders of
Series H Preferred Stock without the consent of the holders of at least a
majority of the outstanding shares of Series H Preferred Stock, voting as a
class.
Without the consent of a majority of the outstanding shares of Series H
Preferred Stock, CSC Holdings cannot consolidate or merge with or into, or sell,
assign, lease or otherwise dispose of all or substantially all of its assets to,
any person unless:
- the entity formed by such consolidation or merger (if other than CSC
Holdings) or which receives the assets is a corporation organized under
the laws of the United States, any State or the District of Columbia;
- the Series H Preferred Stock will be exchanged for shares of the
successor, which have the same rights and limitations that the Series H
Preferred Stock had immediately prior to such transactions; and
- immediately after giving effect to such transaction, neither event
allowing the holders of Series H Preferred Stock to elect a board member,
as described above, will have occurred and be continuing.
However, CSC Holdings may consolidate or merge with or into, or sell,
assign, lease or otherwise dispose of all or substantially all of its assets to,
any person if CSC Holdings:
- before October 1, 2002, redeems the Series H Preferred Stock after a
change in control, or
- on or after October 1, 2002, redeems the Series H Preferred Stock as
previously described.
SERIES I PREFERRED STOCK
With respect to dividends and distributions upon the liquidation, winding up
and dissolution of CSC Holdings, the Series I Preferred Stock ranks:
- senior to all classes of common stock and each class of capital stock or
series of preferred stock which does not expressly provide that it ranks
senior to or equally with the Series I Preferred Stock as to dividends and
liquidation distributions;
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- equally with CSC Holdings' Series B, Series C, Series D, Series H, Series
L and Series M Preferred Stock and each class of capital stock or series
of preferred stock which expressly provides that it ranks equally with the
Series I Preferred Stock as to dividends and liquidation distributions;
and
- junior to each class of capital stock or series of preferred stock which
expressly provides that it ranks senior to the Series I Preferred Stock as
to dividends and liquidation distributions.
Holders of Series I Preferred Stock receive cumulative cash dividends at an
annual rate of 8 1/2% or $21.25 per share (equivalent to $2.125 per depositary
share). Dividends are payable at the end of each quarter on January 1, April 1,
July 1 and October 1 to the holder on the record date set for each dividend
payment.
CSC Holdings cannot pay dividends on any class of stock which ranks equally
with Series I Preferred Stock for any period, unless CSC Holdings has paid
cumulative dividends in full on the Series I Preferred Stock. If the dividends
are not paid in full, the holders of Series I Preferred Stock will share
dividends PRO RATA with equally-ranking classes of stock. If any dividends
payable on the Series I Preferred Stock have not been paid in full, CSC Holdings
cannot pay any dividend on any class of stock which ranks junior to the Series I
Preferred Stock, except dividends consisting of additional shares of the junior-
ranking stock, and may not repurchase, redeem or otherwise retire the
junior-ranking stock or any warrants, rights, calls or options exercisable for
or convertible into any junior-ranking stock.
If CSC Holdings is liquidated, dissolved or wound up, the holders of Series
I Preferred Stock will receive $250.00 per share (equivalent to $25 per
depositary share) plus all accrued and unpaid dividends, before any distribution
is made on any junior-ranking stock. If the liquidation amounts payable on the
Series I Preferred Stock and all other stock which are equally ranked are not
paid in full, these holders will share in any distribution of assets PRO RATA
based on the liquidation value per share. After the liquidation value is paid in
full, the holders of Series I Preferred Stock will not receive any further
distribution of assets.
CSC Holdings can exchange all of the Series I Preferred Stock for CSC
Holdings' 8 1/2% Convertible Subordinated Debentures due 2007 on any dividend
payment date.
At any time after November 1, 1999, with at least 30 but not more than 60
days' notice, CSC Holdings may redeem some or all of the Series I Preferred
Stock at certain redemption prices. Dividends will continue to accumulate on the
preferred stock until any redemption price is paid in full.
A holder of Series I Preferred Stock may convert his shares into shares of
Class A Common Stock at a conversion rate equal to $250.00 divided by a
conversion price described below. However, if shares of Series I Preferred Stock
are called for redemption or CSC Holdings elects to issue debentures in exchange
for the Series I Preferred Stock, this conversion right will terminate at the
close of five business days prior to the date set for redemption or exchange.
The conversion price is $16.86 per share, but is subject to adjustment (under
formulas set forth in the certificate of designations for the Series I Preferred
Stock) in certain events, including:
- the distribution of Class A Common Stock on any class of the capital stock
of Cablevision and its subsidiaries;
- subdivisions, reclassifications and combinations of the Class A Common
Stock;
- the issuance of certain rights or warrants entitling all holders of Class
A Common Stock to subscribe for or purchase Class A Common Stock at less
than the current market price; and
- certain distributions to all holders of Class A Common Stock of capital
stock, debt of Cablevision or its subsidiaries or cash or other assets of
Cablevision or its subsidiaries.
If one of several significant transactions affecting the ownership or
control of CSC Holdings or the market for the Class A Common Stock occurs, a
holder of Series I Preferred Stock
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may convert all of his shares into shares of Class A Common Stock at a
conversion rate equal to $250.00 divided by a conversion price equal to the
greater of the market price of Class A Common Stock and $8.64 per share.
However, CSC Holdings can choose to provide the holders with an amount in cash,
instead of common stock, equal to the market value of the Class A Common Stock
multiplied by the number of such shares into which the shares of Series I
Preferred Stock would have been convertible. If the change of control involves:
- any consolidation with, or merger of Cablevision or its subsidiaries into,
another entity,
- any merger of another entity into Cablevision or its subsidiaries, or
- any sale or transfer of all or substantially all of the assets of
Cablevision or its subsidiaries,
the holder of Series I Preferred Stock can convert all of his shares into the
kind and amount of securities, cash and other property receivable in the
transaction by a holder of the number of shares of CSC Holdings' Class A Common
Stock into which the share of Series I Preferred Stock could have been converted
immediately prior to the transaction.
At every meeting of stockholders of CSC Holdings, holders of Series I
Preferred Stock are entitled to cast 1/10 of a vote for each share of Series I
Preferred Stock held and, except as provided otherwise, vote together with all
other CSC Holdings' common and preferred stock as a single class. In addition,
the certificate of designations provides that if dividends on the Series I
Preferred Stock are overdue and unpaid for six consecutive or nonconsecutive
quarterly periods, then the number of directors constituting CSC Holdings' Board
of Directors will be adjusted to permit the holders of a majority of the Series
I Preferred Stock, voting as a class, to elect one director and a second
director if the right to elect a second director is required by the American
Stock Exchange or any other national securities exchange on which the Class A
Common Stock is listed or by the Nasdaq National Market System if the Class A
Common Stock is traded thereon. These voting rights will continue until all
overdue dividends are paid in full, at which time the term of the directors
elected by the Series I Preferred Stock will terminate. Any vacancy occurring in
the office of the director elected by holders of the Series I Preferred Stock
will be filled by the remaining director, if any, or by the departing director
unless the vacancy is filled by the holders of Series I Preferred Stock.
CSC Holdings cannot authorize the creation of any class of stock ranking
senior to Series I Preferred Stock without the consent of holders of at least
66 2/3% of the outstanding shares of Series I Preferred Stock, voting as a
class. CSC Holdings cannot amend the certificate of designations in any way that
adversely affects the rights of holders of the Series I Preferred Stock without
the consent of the holders of at least 66 2/3% of the outstanding shares of
Series I Preferred Stock, voting as a class.
Unless the transaction constitutes a change of control, CSC Holdings cannot
consolidate or merge with or into, or sell, assign, lease or otherwise dispose
of all or substantially all of its assets to, any person without the consent of
the holders of a majority of the outstanding shares of Series I Preferred Stock
unless:
- the entity formed by the consolidation or merger or which receives the
assets is a corporation organized or existing under the laws of the United
States, any State or the District of Columbia;
- the Series I Preferred Stock will remain unchanged or be exchanged for
shares of the resulting entity, which have the same or more favorable
rights and the same or more favorable limitations that the stock had
immediately prior to the transaction. For clarity, a change in the rights
of the Series I Preferred Stock will not be deemed to have occurred if (i)
the Series I Preferred Stock becomes convertible into a different amount
or type of securities, cash or other property or (ii) the resulting entity
has authorized or outstanding any securities other than classes of stock
which rank senior to the Series I Preferred Stock; and
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- immediately after giving effect to the transaction, neither event allowing
the holders of Series I Preferred Stock to elect a board member, as
described above, will have occurred or be continuing.
SERIES M PREFERRED STOCK
With respect to dividends and distributions upon the liquidation, winding up
and dissolution of CSC Holdings, the Series M Preferred Stock ranks:
- senior to all classes of common stock and every other class of capital
stock or series of preferred stock which does not expressly provide that
it ranks senior to or on a parity with the Series M Preferred Stock as to
dividends and liquidation distributions;
- equally with the Series B, Series C, Series D, Series H, Series I and
Series L Preferred Stock and any other class of capital stock or series of
preferred stock which expressly provides that it ranks equally with Series
M Preferred Stock as to dividends and liquidation distributions; and
- junior to each class of capital stock or series of preferred stock which
expressly provides that it ranks senior to the Series M Preferred Stock
for dividends and liquidation distributions.
Holders of Series M Preferred Stock receive cumulative dividends at an
annual rate of 11 1/8% or $1,113 per share (equivalent to $111.30 per depositary
share). Dividends are payable at the end of each quarter on January 1, April 1,
July 1 and October 1 to the holder on the record date set for each dividend
payment.
CSC Holdings cannot pay dividends in full on any class of stock which ranks
on an equal basis with Series M Preferred Stock for any period unless CSC
Holdings has paid cumulative dividends in full on the Series M Preferred Stock.
If dividends are not paid in full, the holders of Series M Preferred Stock will
share dividends PRO RATA with each class of stock which ranks equally with
Series M Preferred Stock. If any dividends payable on Series M Preferred Stock
have not been paid in full, CSC Holdings cannot pay any dividend on any class of
stock which ranks junior to the Series M Preferred Stock, except dividends
consisting of additional shares of the junior-ranking stock, and cannot
repurchase, redeem or otherwise retire the junior-ranking stock or any warrants,
rights, calls or options exercisable for or convertible into any junior-ranking
stock.
With at least 30 but not more than 60 days' notice, CSC Holdings can redeem
the Series M Preferred Stock on the following basis:
- at any time on or after April 1, 2003, some or all of the shares at
certain redemption prices;
- at any time before April 1, 2003 and within 180 days after a change in
control, all the shares at certain redemption prices; or
- on April 1, 2008, all outstanding shares of Series M Preferred Stock must
be redeemed.
Dividends will continue to accumulate on the preferred stock until any
redemption price is paid in full.
On any scheduled dividend payment date, CSC Holdings can exchange the Series
M Preferred Stock for CSC Holdings' 11 1/8% Senior Subordinated Debentures due
2008.
If CSC Holdings is liquidated, wound up or dissolved, holders of Series M
Preferred Stock will receive $10,000 per share, plus all accumulated and unpaid
dividends, before any distribution is made on any junior-ranking stock. If the
liquidation amounts payable on the Series M Preferred Stock and all other
classes of stock which are equally ranked are not paid in full, these holders
will share in any distribution of assets PRO RATA based on the liquidation value
per share. After the liquidation value is paid in full, the holders of Series M
Preferred Stock will not receive any further distribution of CSC Holdings'
assets.
At every meeting of stockholders of CSC Holdings, holders of Series M
Preferred Stock are entitled to cast one vote for each share of Series M
Preferred Stock held and, except as provided otherwise, vote together with all
other CSC Holdings' common stock and preferred stock as a single class. In
addition, if (a) dividends on the Series M Preferred Stock are overdue, unpaid
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and, if on or after April 1, 2001, not paid in cash, for six consecutive or
non-consecutive quarterly periods, or (b) CSC Holdings fails to redeem the
Series M Preferred Stock on April 1, 2008, the number of directors constituting
CSC Holdings' Board of Directors will be adjusted to permit the holders of a
majority of the outstanding Series L and Series M Preferred Stock, voting as a
single class, to elect a director. These voting rights will continue until CSC
Holdings pays all past-due dividends in full and in the case of dividends
payable on or after April 1, 2001, in cash, and CSC Holdings' failure, if any,
to redeem shares on April 1, 2008 is remedied, at which time the term of the
directors elected by the holders of Series M Preferred Stock will terminate. Any
vacancy occurring in the office of this director will be filled by the departing
director unless it is filled by the holders of the Series M Preferred Stock.
CSC Holdings cannot authorize the creation of any class of stock which ranks
senior to the Series M Preferred Stock without the consent of the holders of at
least a majority of the outstanding shares of Series L and Series M Preferred
Stock, voting as a single class. CSC Holdings cannot amend the certificate of
designations for the Series M Preferred Stock in any way that adversely affects
the rights of holders of Series L and Series M Preferred Stock, without the
consent of the holders of at least a majority of the outstanding shares of
Series L and M Preferred Stock, voting as a single class.
Without the consent of a majority of the outstanding shares of Series L and
Series M Preferred Stock, voting as a single class, CSC Holdings cannot
consolidate or merge with or into, or sell, assign, lease or otherwise dispose
of all or substantially all of its assets to, any person unless:
- the entity formed by such consolidation or merger or which receives the
assets is a corporation organized under the laws of the United States, any
State or the District of Columbia;
- the Series L and Series M Preferred Stock will remain unchanged or be
exchanged for shares of the successor, which have the same or more
favorable rights and limitations that each class of preferred stock had
immediately prior to the transactions; and
- immediately after giving effect to such transaction, neither event
allowing holders of Series M Preferred Stock to elect a board member, as
described above, will have occurred and be continuing.
However, CSC Holdings may consolidate or merge with or into, or sell,
assign, lease or otherwise dispose of all or substantially all of its assets to,
any person if CSC Holdings:
- before April 1, 2003, redeems the Series M Preferred Stock after a change
in control, or
- on or after April 1, 2003, redeems the Series M Preferred Stock as
previously described.
TERMS OF FUTURE SERIES OF PREFERRED STOCK
The powers, designations, preferences and relative, participating, optional
or other special rights, and qualifications, limitations or restrictions,
including dividend rights, voting rights, conversion rights, terms of redemption
and liquidation preferences, of the preferred stock of each series will be fixed
or designated by the Board of Directors of the Issuer pursuant to a certificate
of designations. We will describe in the applicable prospectus supplement the
specific terms of a particular series of preferred stock, which will include the
following:
- the maximum number of shares in the series;
- the designation of the series;
- the terms of any voting rights of the series;
- the dividend rate, if any, on the shares of such series, the conditions
and dates upon which such dividends shall be payable, the preference or
relation which such dividends shall bear to the dividends payable on any
other class or classes or on any other series of capital stock, and
whether such dividends shall be cumulative or non-cumulative;
- whether the shares of such series shall be redeemable by the Issuer and,
if so, the
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times, prices and other terms and conditions of such redemption;
- the rights of the holders of shares of such series upon the liquidation,
dissolution or winding up of the Issuer;
- whether or not the shares of such series shall be subject to the operation
of a retirement or sinking fund and, if so, the extent to and manner in
which any such retirement or sinking fund shall be applied to the purchase
or redemption of the shares of such series for retirement or to other
corporate purposes and the terms and provisions relative to the operation
thereof;
- whether or not the shares of such series shall be convertible into, or
exchangeable for, (i) debt securities of Cablevision or CSC Holdings, (ii)
shares of any other class or classes of stock, or of any other series of
the same or different class of stock, or (iii) shares of any class or
series of stock of any other corporation, and if so convertible or
exchangeable, the price or prices or the rate or rates of conversion or
exchange and the method, if any, of adjusting the same;
- the limitations and restrictions, if any, to be effective while any shares
of such series are outstanding upon the payment of dividends or making of
other distributions on, and upon the purchase, redemption or other
acquisition by Cablevision of, the Cablevision Class A Common Stock, the
Cablevision Class B Common Stock or any other class or classes of stock of
the Issuer ranking junior to the shares of such series either as to
dividends or upon liquidation;
- the conditions or restrictions, if any, upon the creation of indebtedness
of the Issuer or upon the issue of any additional stock (including
additional shares of such series or of any other series or of any other
class) ranking on a parity with or prior to the shares of such series as
to dividends or distribution of assets on liquidation, dissolution or
winding up;
- whether fractional interests in shares of the series will be offered in
the form of depositary shares as described below under "--Depositary
Shares";
- any other preference and relative, participating, optional or other
special rights or qualifications, limitations or restrictions thereof; and
- the Issuer's ability to modify the rights of holders otherwise than by a
vote of a majority or more of the shares outstanding.
The preferred stock will, when issued, be fully paid and nonassessable.
We will select the transfer agent, registrar and dividend disbursement agent
for a series of preferred stock and will describe our selection in the
applicable prospectus supplement. The registrar for shares of preferred stock
will send notices to stockholders of any meetings at which holders of the
preferred stock have the right to elect directors of the Issuer or to vote on
any other matter.
DEPOSITARY SHARES
This section describes the general terms and provisions of the depositary
shares we may offer. The applicable prospectus supplement will describe the
specific terms of the depositary shares offered through that prospectus
supplement, including, but not limited to, the title of the depositary shares
and the deposited security, the amount of deposited securities represented by
one depositary share, and any general terms outlined in this section that will
not apply to those depositary shares.
We have summarized certain terms and provisions of the Depositary Agreement,
the depositary shares and the depositary receipts in this section. The summary
is not complete. We have also filed the form of Depositary Agreement, including
the form of depositary receipt, as an exhibit to the registration statement. You
should read the forms of Depositary Agreement and depositary receipt relating to
a series of preferred stock for additional information before you buy any
depositary shares that represent preferred stock of such series.
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GENERAL
We may offer fractional interests in preferred stock rather than full shares
of preferred stock. If we do, we will provide for the issuance by a Depositary
to the public of receipts for depositary shares, each of which will represent a
fractional interest in a share of a particular series of preferred stock.
The stock of any series of preferred stock underlying the depositary shares
will be deposited under a separate Depositary Agreement between us and a
Depositary. For these purposes, the Depositary will be a bank or trust company
having its principal office in the United States and having a combined capital
and surplus of at least $50 million. We will name the Depositary and give the
address of its principal executive office in the applicable prospectus
supplement. Subject to the terms of the Depositary Agreement, each owner of a
depositary share will have a fractional interest in all the rights and
preferences of the preferred stock underlying such depositary shares. Those
rights include any dividend, voting, redemption, conversion and liquidation
rights.
The depositary shares will be evidenced by depositary receipts issued under
the Depositary Agreement. If you purchase fractional interests in shares of the
related series of preferred stock, you will receive depositary receipts as
described in the applicable prospectus supplement. While the final depositary
receipts are being prepared, we may order the Depositary to issue temporary
depositary receipts substantially identical to the final depositary receipts in
final form. The holders of the temporary depositary receipts will be entitled to
the same rights as if they held the depositary receipts although not in final
form. Holders of the temporary depositary receipts can exchange them for the
final depositary receipts at our expense.
If you surrender depositary receipts at the principal office of the
Depositary (unless the related depositary shares have previously been called for
redemption), you are entitled to receive at such office the number of shares of
preferred stock and any money or other property represented by such depositary
shares. We will not issue partial shares of preferred stock. If you deliver
depositary receipts evidencing a number of depositary shares that represent more
than a whole number of shares of preferred stock, the Depositary will issue you
a new depositary receipt evidencing such excess number of depositary shares at
the same time that the shares of preferred stock are withdrawn. Holders of
preferred stock received in exchange for depositary shares will no longer be
entitled to deposit such shares under the Depositary Agreement or to receive
depositary shares in exchange for such preferred stock.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received with respect to the preferred stock to the record holders
of depositary shares representing the preferred stock in proportion to the
number of depositary shares owned by the holders on the relevant record date.
The Depositary will distribute only the amount that can be distributed without
attributing to any holder of depositary shares a fraction of one cent. The
balance not distributed will be added to and treated as part of the next sum
received by the Depositary for distribution to record holders of depositary
shares.
If there is a distribution other than in cash, the Depositary will
distribute property to the holders of depositary shares, unless the Depositary
determines that it is not feasible to make such distribution. If this occurs,
the Depositary may, with our approval, sell the property and distribute the net
proceeds from the sale to the holders of depositary shares.
The Depositary Agreement will also contain provisions relating to how any
subscription or similar rights offered by us to the holders of the preferred
stock will be made available to the holders of depositary shares.
CONVERSION AND EXCHANGE
If any series of preferred stock underlying the depositary shares is subject
to conversion or exchange, the applicable prospectus supplement will describe
the rights or obligations of each record holder of depositary receipts to
convert or exchange the depositary shares.
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REDEMPTION OF DEPOSITARY SHARES
If the series of the preferred stock underlying the depositary shares is
subject to redemption, the depositary shares will be redeemed from the
redemption proceeds, in whole or in part, of such series of the preferred stock
held by the Depositary. The Depositary will mail notice of redemption between 30
to 60 days prior to the date fixed for redemption to the record holders of the
depositary shares to be redeemed at their addresses appearing in the
Depositary's records. The redemption price per depositary share will bear the
same relationship to the redemption price per share of preferred stock that the
depositary share bears to the underlying preferred share. Whenever we redeem
preferred stock held by the Depositary, the Depositary will redeem, as of the
same redemption date, the number of depositary shares representing the preferred
stock redeemed. If less than all the depositary shares are to be redeemed, the
depositary shares to be redeemed will be selected by lot or pro rata as
determined by the Depositary.
After the date fixed for redemption, the depositary shares called for
redemption will no longer be outstanding. When the depositary shares are no
longer outstanding, all rights of the holders will cease, except the right to
receive money or other property that the holders of the depositary shares were
entitled to receive upon such redemption. Such payments will be made when
holders surrender their depositary receipts to the Depositary.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the preferred
stock are entitled to vote, the Depositary will mail information about the
meeting contained in the notice to the record holders of the depositary shares
relating to such preferred stock. Each record holder of such depositary shares
on the record date (which will be the same date as the record date for the
preferred stock) will be entitled to instruct the Depositary as to how the
preferred stock underlying the holder's depositary shares should be voted.
The Depositary will try, if practical, to vote the number of shares of
preferred stock underlying the depositary shares according to the instructions
received. We will agree to take all action requested and deemed necessary by the
Depositary in order to enable the Depositary to vote the preferred stock in that
manner. The Depositary will not vote any preferred stock for which it does not
receive specific instructions from the holder of the depositary shares relating
to such preferred stock.
TAXATION
Provided that each obligation in the Depositary Agreement and any related
agreement is performed in accordance with its terms, owners of depositary shares
will be treated for federal income tax purposes as if they were owners of the
shares of preferred stock represented by the depositary shares. Accordingly, for
federal income tax purposes they will have the income and deductions to which
they would be entitled if they were holders of the preferred stock. In addition:
- No gain or loss will be recognized for federal income tax purposes upon
withdrawal of preferred stock in exchange for depositary shares as
provided in the Depositary Agreement.
- The tax basis of each share of preferred stock to an exchanging owner of
depositary shares will, upon the exchange, be the same as the aggregate
tax basis of the depositary shares exchanged for such preferred stock.
- The holding period for the preferred stock, in the hands of an exchanging
owner of depositary shares who held the depositary shares as a capital
asset at the time of the exchange, will include the period that the owner
held such depositary shares.
AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT
The form of depositary receipt evidencing the depositary shares and any
provision of the Depositary Agreement may be amended by agreement between us and
the Depositary at any time. However, any amendment that materially and adversely
alters the rights of the existing holders of depositary shares will not be
effective unless approved by the record holders of at least a majority of the
depositary shares then
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outstanding. A Depositary Agreement may be terminated by us or the Depositary
only if:
- All outstanding depositary shares relating to the Depositary Agreement
have been redeemed.
- There has been a final distribution on the preferred stock of the relevant
series in connection with the liquidation, dissolution or winding up of
the business and the distribution has been distributed to the holders of
the related depositary shares.
CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. We will pay associated
charges of the Depositary for the initial deposit of the preferred stock and any
redemption of the preferred stock. Holders of depositary shares will pay
transfer and other taxes and governmental charges and any other charges that are
stated to be their responsibility in the Depositary Agreement.
MISCELLANEOUS
We will forward to the holders of depositary shares all reports and
communications that we must furnish to the holders of the preferred stock.
Neither the Depositary nor we will be liable if the Depositary is prevented
or delayed by law or any circumstance beyond its control in performing its
obligations under the Depositary Agreement. Our obligations and the Depositary's
obligations under the Depositary Agreement will be limited to performance in
good faith of duties set forth in the Depositary Agreement. Neither the
Depositary nor we will be obligated to prosecute or defend any legal proceeding
connected with any depositary shares or preferred stock unless satisfactory
indemnity is furnished to us and/or the Depositary. We and the Depositary may
rely upon written advice of counsel or accountants, or information provided by
persons presenting preferred stock for deposit, holders of depositary shares or
other persons believed to be competent and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering notice to us. We may
also remove the Depositary at any time. Resignations of removals will take
effect upon the appointment of a successor Depositary and its acceptance of the
appointment. The successor Depositary must be appointed within 60 days after
delivery of the notice of resignation or removal and must be a bank or trust
company having its principal office in the United States and having a combined
capital and surplus of at least $50 million.
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WE MAY OFFER PREFERRED SECURITIES
We may offer preferred securities, which may be issued by any one of the
Trusts and which represent preferred undivided beneficial interests in the
assets of the issuing Trust. In connection with an offering of preferred
securities, we will sell common securities of the issuing Trust to the Issuer
which represent common undivided beneficial interests in the assets of the
issuing Trust. The issuing Trust will use the proceeds from any sale of
preferred securities and common securities to buy junior subordinated debt
securities from the Issuer with payment terms similar to those of the preferred
securities. If a Trust sells preferred securities and common securities, the
Issuer will pay principal and interest on the junior subordinated debt
securities to the issuing Trust, which the issuing Trust will distribute to the
holders of the preferred securities. As long as no Event of Default under the
Junior Subordinated Indenture has occurred and is continuing, we have the right
under the Indenture to defer the payment of interest on the junior subordinated
debt securities at any time. Furthermore, if we defer interest payments, the
Trust will defer the payment of distributions on the preferred securities during
the related period. For additional information on our ability to defer interest
payments and the Trust's ability to defer distributions, see "Description of the
Junior Subordinated Debt Securities--Interest" and "Description of the Preferred
Securities-- Distributions--Extension Periods" and "--Extension Period
Restrictions". The Issuer will fully and unconditionally guarantee the preferred
securities based on several obligations described in this prospectus.
The following four sections describe the various aspects of an offering of
preferred securities, including:
- the preferred securities and the common securities themselves;
- the corresponding junior subordinated debt securities and the Indenture
under which they are issued;
- the guarantee and the expense agreement, which together with the
Declaration of Trust, the junior subordinated debt securities and the
Indenture constitute a full and unconditional guarantee of the preferred
securities by the Issuer; and
- the relationship among the preferred securities, the junior subordinated
debt securities, the guarantee and the expense agreement.
The sections following those four sections contain a description of several
important tax and accounting matters of which you should be aware.
The preferred securities may be issued in whole or in part in the form of
one or more Global Securities. See "Description of the Securities We May Offer"
for additional information about your limited rights as the beneficial owner of
a Global Security.
DESCRIPTION OF THE PREFERRED SECURITIES
The following is a general description of the preferred securities. For more
specific details, see the attached prospectus supplement. In addition, to the
extent anything in the prospectus supplement is inconsistent with the following,
you should rely on the information in the prospectus supplement.
This section summarizes the main provisions of the preferred securities and
the Declaration of Trust, but it does not describe all the provisions.
Consequently, this summary is qualified by reference to the full text of the
Declaration of Trust. We have filed a form of the Declaration of Trust as an
exhibit to our registration statement.
THE TERM "INDENTURE", WHEN USED IN THIS SECTION, REFERS ONLY TO THE
INDENTURE FOR THE JUNIOR SUBORDINATED DEBT SECURITIES OF THE ISSUER AND NOT TO
THE INDENTURES FOR THE SENIOR DEBT SECURITIES OR THE SUBORDINATED DEBT
SECURITIES.
This section uses terms that are defined in the Declaration of Trust and the
Indenture. Unless we define those terms in this prospectus, we intend
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them to have the meanings given them in the Declaration of Trust or the
Indenture, as the case may be.
GENERAL
The Trust will issue the preferred securities and the common securities
under the Declaration of Trust, with a stated liquidation amount of $25 per
security (for the remainder of this section, the "LIQUIDATION AMOUNT"). The
preferred securities and the common securities will rank PARI PASSU with one
another, and all payments will be made on the preferred securities and the
common securities PRO RATA, except as described in "--Priority over Common
Securities".
The Issuer will issue the junior subordinated debt securities under the
Indenture as described in "Description of the Junior Subordinated Debt
Securities", and the Property Trustee will hold legal title to the junior
subordinated debt securities in trust for the benefit of the holders of the
preferred securities and the common securities. The Issuer will also provide the
guarantee under the guarantee agreement as described in "Description of
Guarantee and Expense Agreement". Under the guarantee, the Issuer will
guarantee, on a subordinated basis, the payment of distributions and other
amounts payable on the preferred securities, but only to the extent that the
Trust has funds on hand legally and immediately available to make those
payments.
DISTRIBUTIONS
Distributions will accumulate on the preferred securities from their
original issue date at an annual rate provided in the applicable prospectus
supplement. Unless deferred as described below, distributions will be payable
quarterly in arrears to the holders of the preferred securities at the close of
business on the 15th day (whether or not a business day) next preceding the
relevant distribution date. The amount of distributions payable for any period
will be computed on the basis of a 360-day year of 12 30-day months.
The Trust will have no funds to distribute in respect of the preferred
securities other than the payments it receives from the Issuer in respect of the
junior subordinated debt securities. Consequently, if the Issuer defers or for
any other reason fails to make interest payments on the junior subordinated debt
securities, the Trust will not have funds available to pay distributions on the
preferred securities. We have no current intention to exercise our right to
defer interest payments on the junior subordinated debt securities.
EXTENSION PERIODS
As long as no Event of Default under the Indenture has occurred and is
continuing, we have the right under the Indenture to defer the payment of
interest on the junior subordinated debt securities at any time. We may do so
for a period not exceeding 20 consecutive quarters (each, an "EXTENSION
PERIOD"), PROVIDED THAT no Extension Period may extend beyond the stated
maturity of the junior subordinated debt securities. However, during an
Extension Period, interest will continue to accrue and, to the extent permitted
by applicable law, additional interest will accrue on each deferred interest
payment at an annual rate specified in the prospectus supplement, compounded
quarterly from the corresponding interest payment date. Before an Extension
Period ends, we may extend it further, subject to the limit described above.
When an Extension Period ends and we have paid all interest then accrued and
unpaid on the junior subordinated debt securities, we may begin a new Extension
Period, PROVIDED no Event of Default under the Indenture has occurred and is
continuing. There is no limit on the number of Extension Periods that we may
begin. For additional information on interest payments on the junior
subordinated debt securities, see "Description of the Junior Subordinated Debt
Securities--Interest".
If we elect to defer interest payments on the junior subordinated debt
securities, the Trust will defer the payment of distributions on the preferred
securities during the related Extension Period. However, during an Extension
Period, distributions will continue to accumulate on the Liquidation Amount of
the preferred securities and, to the extent permitted by applicable law, those
deferred distributions will accumulate additional distributions at an annual
rate specified in the prospectus supplement, compounded
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quarterly from the corresponding distribution date. The term "DISTRIBUTION",
wherever we use it in this section, includes any of these additional
distributions. During an Extension Period, holders of preferred securities may
be required to accrue interest income for U.S. federal income tax purposes. See
"U.S. Federal Income Tax Consequences Relating to Preferred Securities--
Interest Income and Original Issue Discount".
Any distributions that would otherwise become due and payable during an
Extension Period will not become due and payable until the day after the
Extension Period ends. If any preferred securities become subject to redemption
on a redemption date that would otherwise occur during an Extension Period, that
Extension Period will end automatically on the next preceding day.
We must give the Property Trustee and the holders of preferred securities
notice of our election to begin or extend an Extension Period. The notice must
be given at least one business day before the earlier of the following:
- the record date for the distribution date on which distributions would
have been payable but for the election, and
- the date on which notice of that record date must be given to the New York
Stock Exchange (or any other national securities exchange or organization
on which the preferred securities are then listed) under the rules of that
exchange or other organization.
We must notify the holders in the manner described below in "--Notices".
EXTENSION PERIOD RESTRICTIONS
The Indenture provides that, during any Extension Period, neither the Issuer
nor any of its subsidiaries may take any of the following actions:
- declare or pay any dividend or other distribution on, or redeem, purchase
or otherwise acquire, or make any distribution or liquidation payment with
respect to, any capital stock of the Issuer, except as described below,
and
- pay any principal, interest or other amount in respect of, or redeem,
purchase or otherwise acquire, any debt securities (including guarantees
of such indebtedness) of the Issuer that rank, in right of payment in all
respects, equally with or junior to the junior subordinated debt
securities, except as described below.
The Indenture restriction described above provides for significant exceptions.
Any of the following that would otherwise be covered by this restriction will
nevertheless be permitted:
- any transaction in which the only consideration given or to be given by
the Issuer or any of its Subsidiaries is Junior Securities (as defined
below);
- any transaction in connection with or arising from:
- any employment contract, benefit plan or other similar arrangement with,
or for the benefit of, one or more employees, officers, directors or
consultants in connection with a dividend reinvestment or stockholder
stock purchase plan, or
- any issuance of Junior Securities as consideration in an acquisition
transaction entered into before the applicable Extension Period;
- any reclassification, exchange or conversion of capital stock or
indebtedness (of the Issuer or any Subsidiary) as, into or for any Junior
Securities of the Issuer;
- any purchase of fractional interests in capital stock pursuant to the
conversion or exchange provisions of a security being converted into or
exchanged for capital stock;
- any declaration or payment of a dividend, issuance of rights, stock or
other property or redemption or other acquisition of rights in connection
with any stockholder rights plan; or
- payments under the guarantee and the expense agreement.
"JUNIOR SECURITIES" means (i) capital stock or debt securities of the Issuer
that rank, in right of payment in all respects, PARI PASSU with or junior to the
junior subordinated debt securities and
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(ii) warrants, options and other rights to acquire or convert into capital stock
or debt securities of the kind described in clause (i).
MANDATORY REDEMPTION
The preferred securities will remain outstanding until the Trust redeems
them or distributes the junior subordinated debt securities in exchange for the
preferred securities. Any redemption of preferred securities must occur as
described below. Any exchange distribution must occur as described below in
"--Exchange of Preferred Securities for Junior Subordinated Debt Securities".
REDEMPTION OF PREFERRED SECURITIES AND COMMON SECURITIES
If the Issuer repays or redeems the junior subordinated debt securities at
any time, whether at their stated maturity, upon acceleration after an Indenture
Event of Default or upon optional redemption, the Trust will be obligated to
redeem a Like Amount of preferred securities and common securities on the
redemption date at the redemption price specified in the prospectus supplement.
In this context, "LIKE AMOUNT" means preferred securities and common securities
having an aggregate Liquidation Amount equal to the aggregate principal amount
of the junior subordinated debt securities to be contemporaneously repaid or
redeemed.
REPAYMENT AND REDEMPTION OF JUNIOR SUBORDINATED DEBT SECURITIES
The junior subordinated debt securities will mature on the date set forth in
the applicable prospectus supplement. We will also be entitled to redeem the
junior subordinated debt securities before their stated maturity, as follows:
- on or after the date set forth in the applicable prospectus supplement, in
whole or in part, PROVIDED that no partial redemption may occur during an
Extension Period, or
- in whole at any time within 90 days after the occurrence of a Tax Event or
an Investment Company Act Event.
See "Description of the Junior Subordinated Debt Securities--Optional
Redemption" for the definitions of "Tax Event" and "Investment Company Act
Event".
The Indenture provides that if a Tax Event has occurred and is continuing
and we do not elect to redeem the junior subordinated debt securities, we may be
required to pay certain Additional Sums on the junior subordinated debt
securities. The Indenture provisions regarding repayment and redemption of the
junior subordinated debt securities, as well as information about the effect
that possible tax law changes may have on the junior subordinated debt
securities and preferred securities, are addressed in "Description of the Junior
Subordinated Debt Securities--Stated Maturity; Shortening and Extension" and
"--Optional Redemption".
REDEMPTION PROCEDURES
The Property Trustee will give notice of any redemption of preferred
securities to the holders of preferred securities not less than 30 nor more than
60 days before the redemption date, unless the redemption results from
acceleration of the maturity of the junior subordinated debt securities and the
Property Trustee cannot reasonably give this notice during this period. In that
case, the Property Trustee will give the notice as soon as practicable. In all
cases, the Property Trustee will give the notice of redemption in the manner
described below under "--Notices".
Payment of the redemption price for any preferred securities will be made
against surrender of the certificates representing those preferred securities
(or, in the case of any preferred securities held in book-entry form, in
accordance with the applicable procedures of the Depositary). However, any
distributions that are payable on a distribution date that falls on or before
the redemption date will be payable to the persons who are the holders of those
preferred securities on the record date for the distribution date.
If the Property Trustee gives a notice of redemption, it will irrevocably
deposit with the Depositary (in the case of any book-entry preferred securities)
or the Paying Agent (in the case of any non-book-entry preferred securities), on
the redemption date, funds sufficient to pay the redemption price for all
preferred securities to be redeemed on that date (to the extent the funds are
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available to the Property Trustee). Upon the date of such deposit, all rights of
the holders of the preferred securities called for redemption will cease, except
the right of those holders to receive the redemption price (but without
additional interest on that amount), and those preferred securities will cease
to be outstanding. If payment of the redemption price for any preferred
securities called for redemption is improperly withheld or refused and not paid
either by the Trust or by the Issuer under the guarantee (or if notice of
redemption is not given as required), distributions on those preferred
securities will continue to accumulate to the date the redemption price is
actually paid.
If less than all the preferred securities and common securities are to be
redeemed on a redemption date, the aggregate Liquidation Amount of preferred
securities and common securities to be redeemed will be allocated PRO RATA
between the outstanding preferred securities and the outstanding common
securities, based upon their respective aggregate Liquidation Amounts. Not more
than 60 days prior to the redemption date, the Property Trustee will select the
preferred securities to be redeemed from among the outstanding preferred
securities not previously called for redemption. The Property Trustee may use
any method of selection that it deems to be fair and appropriate, including any
method that involves the redemption of a portion of the aggregate Liquidation
Amount of any particular holder's preferred securities.
OTHER PURCHASES OF PREFERRED SECURITIES
Subject to applicable law (including U.S. federal securities laws), we may
purchase outstanding preferred securities by tender, in the open market or by
private agreement. These purchases may occur at any time and from time to time
other than during an Extension Period.
EXCHANGE OF PREFERRED SECURITIES FOR JUNIOR SUBORDINATED DEBT SECURITIES
The holders of the common securities will have the right at any time, in
their sole discretion, to elect to dissolve the Trust. Upon such an election,
and after liabilities of creditors of the Trust have been satisfied as provided
by applicable law, the Property Trustee will cause a Like Amount of junior
subordinated debt securities to be distributed in exchange for all the
outstanding preferred securities and common securities, in liquidation of the
Trust. In this context, "LIKE AMOUNT" means junior subordinated debt securities
having an aggregate principal amount equal to the aggregate Liquidation Amount
of all outstanding preferred securities and common securities. The exchange
distribution will be made to the persons who are the holders of record of the
outstanding preferred securities and common securities on the 15th day (whether
or not a business day) before the date fixed for the distribution by the
Property Trustee (the "EXCHANGE DATE"). See "--Liquidation Distribution upon
Dissolution".
EXCHANGE PROCEDURES
The Property Trustee will notify holders of preferred securities of any
exchange 30 to 60 days before the Exchange Date, in the manner described below
under "--Notices". On the Exchange Date, the following shall occur:
- The preferred securities will cease to be outstanding.
- The Depositary or its nominee will receive certificates representing the
junior subordinated debt securities to be distributed in exchange for all
preferred securities held in book-entry form, with those junior
subordinated debt securities also being in book-entry form.
- Any certificates representing preferred securities that are not held in
book-entry form will be deemed to represent a Like Amount of junior
subordinated debt securities, bearing accrued and unpaid interest in an
amount equal to the accumulated and unpaid distributions on those
preferred securities, until those certificates are presented to the Paying
Agent for exchange or transfer.
- All rights of the holders of preferred securities will cease, except for
the right of holders of preferred securities in non-book-entry form to
receive certificates representing junior subordinated debt
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securities in non-book-entry form, upon surrender of the certificates
representing their preferred securities, as described above.
CERTAIN TAX CONSEQUENCES
Under current U.S. federal income tax law and interpretations, and assuming,
as we expect, that the Trust will not be classified as an association taxable as
a corporation, holders of the preferred securities would not be taxed if the
junior subordinated debt securities were distributed in exchange for preferred
securities. However, if a Tax Event were to occur and the Trust became taxable
on income received or accrued on the junior subordinated debt securities, both
the Trust and the holders of the preferred securities could be taxed on the
distribution of junior subordinated debt securities in exchange for preferred
securities. See "U.S. Federal Income Tax Consequences Relating to Preferred
Securities--Distribution of Junior Subordinated Debt Securities to Holders of
Preferred Securities upon Liquidation of the Trust".
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
Under the Declaration of Trust, the Trust will automatically dissolve upon
the occurrence of any of the following events, whichever occurs first:
- the expiration of its term of 55 years;
- certain events of bankruptcy, dissolution or liquidation of a holder of
common securities;
- upon the election by the holders of common securities to terminate the
Trust, as described above under "--Exchange of Preferred Securities for
Junior Subordinated Debt Securities";
- redemption of all the preferred securities and common securities as
described above under "--Mandatory Redemption-- Redemption of Preferred
Securities and Common Securities"; or
- the entry of an order for the dissolution of the Trust by a court of
competent jurisdiction.
If the Trust dissolves while the preferred securities are outstanding, the
Property Trustee will liquidate the Trust as expeditiously as the Property
Trustee determines to be possible. The Property Trustee will do so by
distributing a Like Amount of the junior subordinated debt securities to the
holders of the preferred securities and common securities in exchange for their
securities, as described above under "--Exchange of Preferred Securities for
Junior Subordinated Debt Securities". However, the Property Trustee will do so
only after satisfying liabilities to creditors of the Trust as provided by
applicable law and only if the Property Trustee determines that an exchange
distribution of this kind is practical.
If the Property Trustee determines that an exchange distribution is not
practical, each holder of outstanding preferred securities will be entitled to
receive out of the assets of the Trust available for distribution to holders,
after satisfaction of liabilities to creditors of the Trust as provided by
applicable law, an amount equal to the Liquidation Distribution. The
"LIQUIDATION DISTRIBUTION" for any preferred securities will equal the aggregate
Liquidation Amount of those preferred securities plus all accrued and unpaid
distributions on them to the date of payment. If the Liquidation Distribution
for all outstanding preferred securities can be paid only in part because the
Trust has insufficient assets available to pay it in full, the amounts payable
by the Trust on the preferred securities will be paid PRO RATA, based on their
respective Liquidation Distributions.
On any liquidation of the Trust, the holders of the common securities will
be entitled to receive distributions PRO RATA with the holders of the preferred
securities, unless a Trust Event of Default has occurred and is continuing. In
that case, the preferred securities will have priority in right of payment over
the common securities, as described below under "--Priority over Common
Securities".
PRIORITY OVER COMMON SECURITIES
Payment of distributions and the redemption price will be made in respect of
the preferred securities and the common securities PRO RATA, based on the
respective aggregate Liquidation
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Amounts of the two classes, except as follows. If a Trust Event of Default (see
the next subsection) has occurred and is continuing, the Trust will not pay any
distribution or redemption price, or make any Liquidation Distribution, in
respect of the common securities on any day unless any of the following have
occurred:
- In the case of any distribution to be paid, all accumulated and unpaid
distributions on all outstanding preferred securities for all distribution
periods ending on or before the payment day have been paid (or duly
provided for) in cash.
- In the case of any redemption price to be paid, the redemption price on
all outstanding preferred securities called on or before the payment day
for redemption has been paid (or duly provided for) in cash.
- In the case of a Liquidation Distribution to be made, the Liquidation
Distribution on all outstanding preferred securities has been made (or
duly provided for).
Whenever any distribution or redemption price is due and payable in respect of
the preferred securities, the Property Trustee will apply all available funds to
the payment of those amounts in full in cash before making any payment in
respect of the common securities. The Trust will not make any payment or other
distribution in respect of the common securities (including on account of any
purchase or other acquisition) while the preferred securities are outstanding,
other than distributions, the redemption price and the Liquidation Distribution
on the terms set forth in the Declaration of Trust.
If a Trust Event of Default occurs, the holders of the common securities
will be deemed to have waived all rights to act with respect to the Trust Event
of Default until all Trust Events of Default have been cured, waived or
otherwise eliminated. Until that time, the Property Trustee will act solely on
behalf of the holders of the preferred securities and not on behalf of the
holders of the common securities, and only the holders of the preferred
securities will have the right to direct the Property Trustee to act on their
behalf.
Notwithstanding the foregoing, the holders of common securities may act with
respect to a Trust Event of Default that results solely from a default in the
payment of any amount due and payable on the common securities, or from a
default or breach under any covenant in the Declaration of Trust made solely for
the benefit of the holders of common securities (a "COMMON SECURITIES DEFAULT"),
subject to the following conditions. The action of the common securities holders
must not adversely affect the interests of the holders of preferred securities
and no Trust Event of Default (and no event or condition that after the passage
of time or giving of notice would result in a Trust Event of Default) that is
not a Common Securities Default may have occurred and be continuing.
TRUST EVENTS OF DEFAULT
Any one of the following events will be a "TRUST EVENT OF DEFAULT" under the
Declaration of Trust. This will be the case regardless of the reason why the
event occurs, whether it is voluntary or involuntary and whether or not it
results from operation of law, from any judgment, decree or order of any court
or from any order, rule or regulation of any administrative or governmental
body:
- the occurrence of an Event of Default under the Junior Subordinated
Indenture (see "Description of the Junior Subordinated Debt
Securities--Events of Default");
- the default by the Trust in the payment of any distribution when it
becomes due and payable and continuation of the default for 30 days;
- the default by the Trust in the payment of any redemption price when it
becomes due and payable;
- a material default or breach under any covenant or warranty of the Trust
Trustees in the Declaration of Trust, and continuation of the default or
breach for 60 days after a notice default has been given, which may be
given only by the holders of at least 25% in aggregate Liquidation Amount
of the outstanding
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preferred securities, as provided under the Declaration of Trust; or
- the occurrence of certain events of bankruptcy or insolvency with respect
to the Property Trustee if a successor Property Trustee has not been
appointed within 90 days.
Within five business days after learning about a Trust Event of Default, the
Property Trustee will notify the holders of the outstanding preferred securities
and common securities, unless the Trust Event of Default has been cured or
waived. The Issuer, as Depositor, and the Administrators are obligated to file
annually with the Property Trustee a certificate as to whether or not they are
in compliance with all the conditions and covenants applicable to them under the
Declaration of Trust.
ENFORCEMENT RIGHTS
If an Event of Default under the Junior Subordinated Indenture occurs and is
continuing as to a series of corresponding junior subordinated debt securities,
the Property Trustee, as the holder of the junior subordinated debt securities,
will have the right to declare the principal of and premium and interest, if
any, on the corresponding junior subordinated debt securities, and any other
amounts payable under the Junior Subordinated Indenture, due and payable and to
enforce its other rights as a creditor with respect to such corresponding junior
subordinated debt securities.
This means, however, that as a holder of the related preferred securities,
you must rely on the Property Trustee to enforce its rights against the Issuer,
subject to the following provisions.
RIGHT TO DIRECT PROPERTY TRUSTEE'S ACTIONS
The holders of a majority in aggregate Liquidation Amount of outstanding
preferred securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to, or exercising any trust
or power conferred on, the Property Trustee under the Declaration of Trust,
including the right to direct the Property Trustee to exercise the remedies
available to it as the holder of the junior subordinated debt securities.
Accordingly, the Property Trustee will not take any of the following actions
without obtaining the prior approval of the holders of a majority in aggregate
Liquidation Amount of the outstanding preferred securities (or, in the case of
any action that under the Indenture may be taken only with the prior consent of
each affected holder of junior subordinated debt securities, without the prior
consent of each holder of outstanding preferred securities):
- direct the time, method or place of conducting any proceeding for any
remedy available to, or executing any trust or power conferred on, the
Indenture Trustee with respect to the junior subordinated debt securities;
- waive any past default that may be waived under the Indenture;
- exercise any right to rescind or annul a declaration that the aggregate
principal amount of the junior subordinated debt securities be due and
payable;
- consent to any amendment, modification or termination of the Indenture or
the junior subordinated debt securities, if the consent of any holder of
junior subordinated debt securities is required under the Indenture; or
- revoke any action previously authorized or approved by the holders of the
preferred securities except by, or with the subsequent authorization or
approval of, the holders of the preferred securities.
Before taking any of the actions described above, the Property Trustee must also
obtain an opinion of counsel, experienced in the following matters, to the
effect that the action will not cause the Trust to be classified as an
association taxable as a corporation, or as other than a grantor trust, or cause
the junior subordinated debt securities to be treated as other than indebtedness
of the Issuer, for U.S. federal income tax purposes. The Property Trustee will
notify the holders of preferred securities of any notice of default with respect
to the junior subordinated debt securities, in the manner described below under
"--Notices".
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Any required approval of holders of preferred securities may be given by
written consent or at a meeting convened for that purpose. The Property Trustee
must cause a notice of any matter upon which holders of preferred securities are
to act by written consent, or of any meeting at which holders of preferred
securities are entitled to vote, to be given to the holders of preferred
securities in the manner described below under "--Notices".
RIGHT OF DIRECT ACTION
If an Event of Default under the Junior Subordinated Indenture has occurred
and is continuing and is attributable to the failure of the Issuer to pay any
interest or principal on the junior subordinated debt securities when due and
payable, a holder of preferred securities may begin a legal proceeding directly
against the Issuer for enforcement of payment, to that holder, of the interest
(including any Additional Sums) or principal due and payable on junior
subordinated debt securities having a principal amount equal to the aggregate
Liquidation Amount of that holder's preferred securities (a "DIRECT ACTION").
The Issuer may not amend the Indenture to remove the right of any holder of
outstanding preferred securities to bring a Direct Action without the prior
written consent of that holder. The Issuer will have the right under the
Indenture to set off any payment made to a holder of preferred securities in
connection with a Direct Action. Except for the right to bring a Direct Action,
holders of preferred securities will not have the right to exercise directly
against the Issuer any remedy available to a holder of junior subordinated debt
securities.
RIGHT TO ACCELERATE JUNIOR SUBORDINATED DEBT SECURITIES
The holders of certain minimum percentages of the outstanding preferred
securities will be entitled to exercise certain rights of the holders of the
junior subordinated debt securities under the Indenture, if the holders of
junior subordinated debt securities do not do so. These rights include the right
to accelerate the maturity of the junior subordinated debt securities when an
Event of Default under the Junior Subordinated Indenture has occurred and is
continuing, to cancel a declaration of acceleration of the junior subordinated
debt securities and to waive certain defaults under the Indenture. See
"Description of the Junior Subordinated Debt Securities--Events of Default".
MERGERS, CONSOLIDATIONS, AMALGAMATIONS AND REPLACEMENTS OF THE TRUST
At the request of the holders of the common securities and without the
consent of any holder of preferred securities or any Trust Trustee or
Administrator, the Trust may merge with or into, or consolidate or amalgamate
with, or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, another person (each, a "TRUST SUCCESSOR
TRANSACTION"), but only if that other person is a trust organized as such under
the laws of any state in the United States and only if all the following
requirements are met:
- The successor entity (if not the Trust) EITHER expressly assumes all the
obligations of the Trust with respect to the preferred securities or
substitutes for the preferred securities other securities having
substantially the same terms as the preferred securities, PROVIDED THAT
the successor securities rank at least as high as the preferred securities
rank with regard to the priority in right of payment of all distributions
and other amounts payable upon liquidation, redemption and otherwise.
- The successor entity (if not the Trust) has a purpose identical to that of
the Trust.
- A trustee of the successor entity (if not the Trust) possessing the same
powers and duties as the Property Trustee is appointed to hold the junior
subordinated debt securities.
- The successor securities (if any) are listed, or will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the preferred securities are then listed.
- The Trust Successor Transaction does not cause the preferred securities
(or any successor securities) to be downgraded by any nationally
recognized statistical rating
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organization that assigns ratings to the preferred securities.
- The Trust Successor Transaction does not adversely affect the material
rights, preferences and privileges of the holders of the preferred
securities (or any successor securities) in any material respect.
- Prior to the Trust Successor Transaction, the Issuer and the Trust have
received an opinion from independent counsel to the Issuer and the Trust,
experienced in the following matters, to the effect that (i) the Trust
Successor Transaction will not adversely affect the rights, preferences
and privileges of the holders of the preferred securities (or any
successor securities) in any material respect and (ii) upon completion of
the Trust Successor Transaction, the Trust or the successor entity, as
applicable, will not be required to register as an investment company
under the Investment Company Act.
- The Issuer (or any permitted successor), together with its permitted
assignees, holds all the common securities of the Trust or all comparable
securities of the successor entity, as applicable, and guarantees the
obligations of the successor entity (if not the Trust) in respect of the
preferred securities (or any successor securities) at least to the extent
provided by the guarantee.
Notwithstanding the foregoing, the Trust may not engage in a Trust Successor
Transaction that would cause the Trust or the successor entity, as applicable,
to be classified as an association taxable as a corporation or as other than a
grantor trust, or would cause the junior subordinated debt securities or any
successor securities to be treated as other than indebtedness of the Issuer, for
U.S. federal income tax purposes, unless it first obtains the consent of all
holders of outstanding preferred securities. Except as permitted under the
provisions described above, the Trust may not engage in any Trust Successor
Transaction.
VOTING RIGHTS; AMENDMENT OF THE DECLARATION OF TRUST
Except as provided below and under "Description of Guarantee and Expense
Agreement--Amendments, Assignment and Succession", and as otherwise required by
law and the Declaration of Trust, the holders of the preferred securities will
have no voting rights.
The holders of the common securities and the Property Trustee, without the
consent of the holders of the preferred securities, may amend the Declaration of
Trust from time to time to do any of the following:
- cure any ambiguity, or correct or supplement any provision that may be
inconsistent with any other provision, in the Declaration of Trust;
- make any provision with respect to matters or questions arising under the
Declaration of Trust that is not inconsistent with the other provisions of
the Declaration of Trust; and
- modify, eliminate or add to any provisions of the Declaration of Trust to
any extent that may be necessary to ensure that the Trust will not be
taxable as a corporation or be classified as other than a grantor trust,
or to ensure that the junior subordinated debt securities are treated as
indebtedness of the Issuer, for U.S. federal income tax purposes, or to
ensure that the Trust will not be required to register as an "investment
company" under the Investment Company Act;
BUT ONLY if the amendment does not adversely affect the interests of any holder
of preferred securities in any material respect and does not become effective
until notice of the amendment is given to the holders of preferred securities.
The holders of the common securities and the Property Trustee may also amend
the Declaration of Trust if:
- they obtain the consent of the holders of not less than a majority in
aggregate Liquidation Amount of the outstanding preferred securities, and
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- the Trust Trustees receive an opinion of counsel to the effect that the
amendment or the exercise of any power granted to the Trust Trustees in
accordance with the amendment will not result in the Trust being taxable
as a corporation or being classified as other than a grantor trust, or the
junior subordinated debt securities being treated as other than
indebtedness of the Issuer, for U.S. federal income tax purposes or being
required to register as an "investment company" under the Investment
Company Act.
Notwithstanding the foregoing, each holder of preferred securities or common
securities must consent to an amendment of the Declaration of Trust that:
- changes the amount or timing of any distribution or other payment, or
otherwise adversely affects the amount or timing of any distribution or
other payment required to be made as of a specified date, in respect of
that holder's preferred securities and common securities, or
- restricts the right of that holder to institute suit for the enforcement
of any payment on those preferred securities and common securities on or
after the date on which it becomes due and payable.
For the purpose of any vote or consent of holders of preferred securities,
any preferred securities owned by the Issuer, any Trust Trustee or any affiliate
of the Issuer or any Trust Trustee will be treated as if they were not
outstanding.
NOTICES
Notices to be given to holders of preferred securities held in book-entry
form will be given only to the Depositary in accordance with its applicable
procedures. Notices to be given to holders of preferred securities not held in
book-entry form may be given by mail to the respective addresses of the holders
as they appear in the security register. Neither the failure to give any notice
to a particular holder, nor any defect in a notice given to a particular holder,
will affect the sufficiency of any notice given to another holder.
PAYMENT AND PAYING AGENCY
Payments in respect of any preferred securities held in book-entry form will
be made only to the Depositary or its nominee in accordance with its applicable
procedures. Payments in respect of any preferred securities not held in
book-entry form will be made at the offices of any Paying Agent. However, at the
option of the Issuer, distributions payable on non-book-entry preferred
securities may be paid by check mailed to the persons entitled to receive them,
at their addresses appearing on the security register on the relevant record
date.
The Property Trustee will initially serve as the Paying Agent. From time to
time, the Property Trustee may select one or more firms to act as the Paying
Agent or as co-Paying Agents. Each Paying Agent must be a bank or trust company
acceptable to the Administrators. A Paying Agent will be permitted to resign as
Paying Agent upon 30 days' written notice to the Property Trustee and the
Issuer. In the event there is no Paying Agent, the Property Trustee will appoint
a firm to act as Paying Agent.
If any distribution, redemption price or other amount is payable in respect
of the preferred securities on a day that is not a business day, the payment may
be made on the next succeeding business day unless that business day is in a
different calendar year, in which case the payment may be made on the next
preceding business day. Each payment made on the next succeeding or preceding
business day as described above may be made with the same force and effect as if
made on the day on which the payment is originally payable.
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THE OWNERS OF BENEFICIAL INTERESTS IN PREFERRED SECURITIES HELD IN
BOOK-ENTRY FORM WILL NOT HAVE ANY RIGHTS UNDER THE DECLARATION OF TRUST OR THE
INDENTURE TO RECEIVE PAYMENTS IN RESPECT OF THOSE PREFERRED SECURITIES. THOSE
BENEFICIAL OWNERS WILL HAVE ONLY SUCH RIGHTS AS MAY EXIST UNDER THE APPLICABLE
PROCEDURES OF THE DEPOSITARY AND ITS DIRECT AND INDIRECT PARTICIPANTS. FOR A
DESCRIPTION OF CERTAIN MATTERS RELATING TO SECURITIES HELD IN BOOK-ENTRY FORM,
SEE "DESCRIPTION OF THE SECURITIES WE MAY OFFER--LEGAL OWNERSHIP".
Any moneys deposited with the Property Trustee or any Paying Agent, or then held
in trust by the Issuer or the Trust, for the payment of any amount due and
payable on any preferred securities, and remaining unclaimed for two years after
the amount has become due and payable, will, at the request of the Issuer, be
repaid to the Issuer. Thereafter, the holders of those preferred securities will
look, as a general unsecured creditor, only to the Issuer for payment thereof.
REGISTRAR AND TRANSFER AGENT
The Property Trustee will act as registrar and transfer agent for the
preferred securities. The Property Trustee will exchange and register transfers
of preferred securities without charge by or on behalf of the Trust, but will
require payment of any tax or other governmental charge that may be imposed in
connection with the exchange or transfer. If any preferred securities have been
called for redemption, the Property Trustee may refuse to register any transfer
of those preferred securities during a period beginning 15 days before the
redemption date.
REGARDING THE TRUST TRUSTEES
REMOVAL AND APPOINTMENT OF SUCCESSORS
The holders of at least a majority in aggregate Liquidation Amount of the
outstanding preferred securities may remove the Trust Trustees for cause or, if
an Event of Default under the Indenture has occurred and is continuing, with or
without cause. If a Trust Trustee is removed by the holders of the outstanding
preferred securities, the successor may be appointed by the holders of at least
25% in aggregate Liquidation Amount of the outstanding preferred securities. If
a Trust Trustee resigns, it will appoint its successor. If a Trust Trustee fails
to appoint a successor, the holders of at least 25% in aggregate Liquidation
Amount of the outstanding preferred securities may appoint a successor. If a
successor has not been appointed by the holders, any holder of preferred
securities or common securities, or the other Trust Trustee, may petition a
court in the State of Delaware to appoint a successor. Any Delaware Trustee must
meet the applicable requirements of Delaware law. Any Property Trustee must be a
national or state-chartered bank and, at the time of appointment, must have
securities rated in one of the three highest rating categories by a nationally
recognized statistical rating organization and have capital and surplus of at
least $50,000,000. No resignation or removal of a Trust Trustee, and no
appointment of a successor trustee, will be effective until the acceptance of
appointment by the successor trustee in accordance with the provisions of the
Declaration of Trust.
MERGER, CONSOLIDATION, ETC.
If a Trust Trustee merges, consolidates with or converts into, another
person, or another person succeeds to all or substantially all the corporate
trust business of that Trust Trustee, that other person will be the successor of
that Trust Trustee under the Declaration of Trust, but only if that other person
is qualified and eligible to be a Trust Trustee.
DUTIES OF PROPERTY TRUSTEE
The Property Trustee undertakes to perform only those duties that are
specifically set forth in the Declaration of Trust, unless a Trust Event of
Default is continuing. In that event, the Property Trustee must exercise the
same degree of care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision, the Property
Trustee will have no obligation to exercise any of the powers vested in it by
the Declaration of Trust at the request of any holder of preferred securities
unless it is offered reasonable indemnity against the costs, expenses and
liabilities that it might incur as a result. If no Trust Event of Default is
continuing and the Property Trustee must decide between alternative causes of
action or construe ambiguous provisions
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in the Declaration of Trust, or is unsure of the application of any provision of
the Declaration of Trust, and the matter is not one on which the holders of
preferred securities and common securities are entitled under the Declaration of
Trust to vote, then the Property Trustee may take any action that it deems to be
advisable and in the best interests of the holders of the preferred securities
and common securities and will have no liability except for its own bad faith,
negligence or willful misconduct.
MISCELLANEOUS
The Declaration of Trust authorizes and directs the Administrators and the
Property Trustee to conduct the affairs of and to operate the Trust so that the
Trust will not be required to register as an "investment company" under the
Investment Company Act or be classified as an association taxable as a
corporation or as other than a grantor trust for U.S. federal income tax
purposes and so that the junior subordinated debt securities will be treated as
indebtedness of the Issuer for U.S. federal income tax purposes. The Declaration
of Trust authorizes the Property Trustee and the holders of common securities to
take any action, not inconsistent with applicable law, the certificate of trust
of the Trust or the Declaration of Trust, that they (or any successor entity)
determine in their discretion to be necessary or desirable for these purposes,
as long as the action does not adversely affect the interests of the holders of
the preferred securities in any material respect. Holders of the preferred
securities will have no preemptive or similar rights.
GOVERNING LAW
The Declaration of Trust and the preferred securities and common securities
provide that they are to be governed by and construed in accordance with the
laws of Delaware.
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DESCRIPTION OF THE JUNIOR SUBORDINATED DEBT SECURITIES
This section summarizes the main provisions of the junior subordinated debt
securities and the Junior Subordinated Indenture, but it does not describe all
the provisions. Therefore, you should read the full text of the Indenture for a
complete description of the junior subordinated debt securities. We have filed a
form of the Junior Subordinated Indenture as an exhibit to the registration
statement.
THE TERM "INDENTURE", WHEN USED IN THIS SECTION, REFERS ONLY TO THE
INDENTURE FOR THE JUNIOR SUBORDINATED DEBT SECURITIES OF THE ISSUER AND NOT TO
THE INDENTURES FOR THE SENIOR DEBT SECURITIES OR THE SUBORDINATED DEBT
SECURITIES.
This section uses terms that are defined in the Junior Subordinated
Indenture and the Declaration of Trust. Unless we define those terms in this
prospectus, we intend for them to have the meanings given them in the Junior
Subordinated Indenture or the Declaration of Trust, as the case may be.
GENERAL
Concurrently with the issuance of the preferred securities, the relevant
Issuer will issue the junior subordinated debt securities under the Indenture,
and the Trust will use the proceeds from the sale of the preferred securities,
together with the consideration paid by the Issuer for the common securities, to
purchase the junior subordinated debt securities. The junior subordinated debt
securities will initially equal the sum of the initial aggregate Liquidation
Amount of the preferred securities and the common securities. Unless the Trust
distributes the junior subordinated debt securities in exchange for the
preferred securities as described below, the junior subordinated debt securities
will be held in the name of the Property Trustee in trust for the benefit of the
holders of the preferred securities and common securities.
The junior subordinated debt securities will be general, unsecured
obligations of the Issuer and will be subordinated in right of payment, to the
extent and in the manner set forth in the Indenture, to all Senior Debt of the
Issuer. Because each Issuer is a holding company, the junior subordinated debt
securities will also effectively be subordinated to all existing and future
liabilities of the Issuer's subsidiaries (other than trade accounts payable and
accrued liabilities arising in the ordinary course). See "Risk Factors--Risks
Relating to the Preferred Securities--Our Obligations to You Will Be Deeply
Subordinated".
INTEREST
Interest will accrue on the principal of the preferred securities from their
original issue date at the annual rate set forth in the applicable prospectus
supplement. Unless deferred as described below, interest will be payable
quarterly in arrears on the dates set forth in the applicable prospectus
supplement to the persons who are the record holders of the junior subordinated
debt securities at the close of business on the 15th day (whether or not a
business day) next preceding the relevant interest payment date. The amount of
interest payable for any period will be computed on the basis of a 360-day year
of 12 30-day months.
As long as no Event of Default under the Indenture has occurred and is
continuing, the Issuer will have the right to defer the payment of interest on
the junior subordinated debt securities as described in "Description of the
Preferred Securities--Distributions--Extension Periods". However, during an
Extension Period, interest will continue to accrue on the junior subordinated
debt securities and, to the extent permitted by applicable law, additional
interest will accrue on each deferred interest payment at an annual rate
specified in the prospectus supplement, compounded quarterly from the
corresponding interest payment date. The term "INTEREST", wherever we use it in
this prospectus with respect to the junior subordinated debt securities,
includes any of this additional interest. In addition, during any Extension
Period, the Indenture will prohibit the Issuer and its subsidiaries from taking
certain actions described in "Description of the Preferred
Securities--Distributions--Extension Period Restrictions".
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Any interest that would otherwise become due and payable in respect of any
junior subordinated debt securities during an Extension Period will not become
due and payable until the day after the period ends. If the principal of any
junior subordinated debt securities becomes due and payable on a day that would
otherwise occur during an Extension Period, that period will end automatically
on the next preceding day (which will be the last day of that period).
STATED MATURITY; SHORTENING AND EXTENSION
The junior subordinated debt securities will initially have a stated
maturity. However, the Issuer will have the option at any time to shorten the
stated maturity to a date not earlier than a date set forth in the applicable
prospectus supplement. The Issuer would expect to exercise this option if, for
example, a tax development occurred that could adversely affect the
deductibility of the interest payments on the junior subordinated debt
securities and shortening the maturity would preserve such deductibility.
If provided in the Indenture, the Issuer will also have the option at any
time to extend the stated maturity to a date set forth in the applicable
prospectus supplement, but only if the Issuer has long-term senior unsecured
debt that is outstanding and rated Investment Grade when it gives notice of the
extension as described below. As used herein, "INVESTMENT GRADE" means either a
rating of BBB or better by Standard & Poor's Ratings Services (or any equivalent
successor rating) or a rating of Baa3 or better by Moody's Investors Service,
Inc. (or any equivalent successor rating).
To exercise its option to shorten or extend the stated maturity, the Issuer
must select a date when the change is to become effective and must notify the
Indenture Trustee, and the Indenture Trustee must notify the holders of the
junior subordinated debt securities in the manner described below under
"--Notices", of the new stated maturity and the effective date of the change.
The notice must be given not less than 30 days nor more than 60 days before the
effective date. Any notice of this kind will be irrevocable when given.
OPTIONAL REDEMPTION
The Issuer will have the option to redeem the junior subordinated debt
securities before the stated maturity as follows:
- on or after a date set forth in the applicable prospectus supplement, in
whole at any time or in part from time to time (PROVIDED that no partial
redemption may occur during an Extension Period), or
- in whole (but not in part) at any time within 90 days after the occurrence
of a Tax Event or an Investment Company Act Event (as defined below).
If the Issuer elects to redeem any junior subordinated debt securities, it
will do so at a redemption price equal to the principal amount of the junior
subordinated debt securities to be redeemed, plus any accrued and unpaid
interest on those securities to the redemption date. Unless the Issuer defaults
in payment of the redemption price, on and after the redemption date, interest
will cease to accrue on the junior subordinated debt securities called for
redemption. The Issuer may not elect to redeem any junior subordinated debt
securities on a redemption date that would occur during an Extension Period
unless it elects to redeem all outstanding junior subordinated debt securities
on that date.
The Issuer must give notice of any redemption to the holders of the junior
subordinated debt securities 30 to 60 days before the redemption date in the
manner described below under "--Notices". In all other respects, the procedures
for redeeming the junior subordinated debt securities will be similar to those
for redeeming the preferred securities, described under "Description of the
Preferred Securities--Mandatory Redemption-- Redemption Procedures".
DEFINITION OF TAX EVENT
"TAX EVENT" means the receipt by the Issuer (and, if the preferred
securities are outstanding, the Trust) of an opinion of independent counsel,
experienced in the following matters, to the effect that as a result of any Tax
Change (as defined
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below), there is more than an insubstantial risk that any of the following will
occur:
- The Trust is, or will be within 90 days after the date of the opinion of
counsel, subject to U.S. federal income tax with respect to income
received or accrued on the junior subordinated debt securities.
- Interest payable by the Issuer or OID accruing on the junior subordinated
debt securities is not, or within 90 days after the opinion of counsel
will not be, deductible by the Issuer, in whole or in part, for U.S.
federal income tax purposes.
- The Trust is, or will be within 90 days after the date of the opinion of
counsel, subject to more than a DE MINIMIS amount of other taxes, duties
or other governmental charges.
As used above, "TAX CHANGE" means any of the following:
- any amendment to, clarification of or change (including any announced
prospective change) in the laws, or any regulations under the laws, of the
United States or of any political subdivision or taxing authority of or in
the United States, if the amendment or change is enacted, promulgated or
announced on or after the date of the applicable prospectus supplement, or
- any official administrative pronouncement (including any private letter
ruling, technical advice memorandum or field service advice) or any
judicial decision, whether or not the pronouncement or decision is issued
to or in connection with a proceeding involving the Issuer or the Trust or
is subject to review or appeal, if the pronouncement or decision is
enacted, promulgated or announced on or after the date of the applicable
prospectus supplement.
For a description of certain tax law developments that could result in a Tax
Event and thus early redemption of the junior subordinated debt securities and
the preferred securities, see "U.S. Federal Income Tax Consequences Relating to
Preferred Securities--Possible Tax Law Changes".
DEFINITION OF INVESTMENT COMPANY ACT EVENT
"INVESTMENT COMPANY ACT EVENT" means the receipt by the Issuer and the Trust
of an opinion of counsel, experienced in the following matters, to the following
effect: As a result of the occurrence of a change (including any announced
prospective change) in law or regulation, or a written change (including any
announced prospective change) in interpretation or application of law or
regulation, by any legislative body, court, governmental agency or regulatory
authority, there is more than an insubstantial risk that the Trust is or will be
considered an "investment company" that is required to be registered under the
Investment Company Act. To be effective for this purpose, the change or
prospective change must become effective (or the prospective change will become
effective) on or after the date of the applicable prospectus supplement.
PAYMENT OF ADDITIONAL SUMS
If a Tax Event has occurred and is continuing and the Issuer does not elect
to redeem the junior subordinated debt securities and thereby cause a mandatory
redemption of the preferred securities (and does not elect to liquidate the
Trust and cause the junior subordinated debt securities to be distributed to the
holders of the preferred securities and common securities in exchange for their
securities) as described above, the preferred securities will remain outstanding
and the Issuer will be obligated to pay Additional Sums on the junior
subordinated debt securities. "ADDITIONAL SUMS" means such additional amounts as
may be necessary so that the amount of distributions that are due and payable by
the Trust on the outstanding preferred securities and common securities at any
time will not be reduced as a result of certain additional taxes, duties and
other governmental charges to which the Trust has become subject as a result of
the Tax Event.
EXCHANGE OF PREFERRED SECURITIES FOR JUNIOR SUBORDINATED DEBT SECURITIES
As described under "Description of the Preferred Securities--Exchange of
Preferred Securities for Junior Subordinated Debt Securities", the holders of
common securities may
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elect to dissolve the Trust and, after satisfaction of liabilities to creditors
of the Trust as provided by applicable law, cause the Trust to distribute the
junior subordinated debt securities to the holders of the preferred securities
and common securities in exchange for these securities. Junior subordinated debt
securities distributed in exchange for preferred securities held in book-entry
form will also be issued, upon the distribution, in book-entry form. We expect
that any book-entry arrangements for the junior subordinated debt securities
would be substantially similar to those that will apply to the preferred
securities. See "Description of the Securities We May Offer--Legal Ownership".
The Issuer will be obligated to use its best efforts to list the junior
subordinated debt securities on the American Stock Exchange (or such other stock
exchange or organization, if any, on which the preferred securities are then
listed) if an exchange distribution occurs. We can give no assurance as to the
market price of any junior subordinated debt securities that may be distributed
to the holders of the preferred securities.
CERTAIN COVENANTS OF THE ISSUER
The Issuer will make the following covenants in the Indenture:
- to hold, directly or indirectly through one or more subsidiaries, 100% of
the common securities, PROVIDED THAT permitted successors under the
Indenture may succeed to its ownership of the common securities;
- not to terminate, wind-up or liquidate the Trust voluntarily, except in
connection with a distribution of junior subordinated debt securities in
exchange for preferred securities or a Trust Successor Transaction
permitted by the Declaration of Trust; and
- to use its reasonable efforts, consistent with the Declaration of Trust,
to cause the Trust to be classified as a grantor trust or not to be
classified as an association taxable as a corporation for U.S. federal
income tax purposes.
RESTRICTIONS ON CERTAIN PAYMENTS. If any of the following has occurred and
is continuing:
- any event of which the Issuer has knowledge that
- with notice or the lapse of time, or both, would constitute an Event of
Default with respect to the junior subordinated debt securities of such
series and
- in respect of which the Issuer has not taken reasonable steps to cure,
- the junior subordinated debt securities are held by a Trust of a series of
related preferred securities and the Issuer is in default with respect to
its payment of any obligations under the guarantee relating to such
preferred securities, or
- the Issuer has given notice of an Extension Period with respect to the
junior subordinated debt securities of such series and has not rescinded
such notice, or such Extension Period, or any extension thereof,
then the Issuer will not, and will not permit any subsidiary to:
- pay any dividends or distributions on, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of the Issuer's capital
stock,
- make any payment of principal of, or premium or interest, if any, on, or
repay or repurchase or redeem any debt securities of the Issuer (including
other junior subordinated debt securities) that rank equally with or
junior in interest to the junior subordinated debt securities, or
- make any guarantee payments with respect to any guarantee by the Issuer of
the debt securities of any subsidiary if such guarantee ranks equally with
or junior in interest to the junior subordinated debt securities,
PROVIDED THAT the Issuer may continue to:
- pay any dividends or distributions in common stock of the Issuer,
- redeem or purchase any rights pursuant to any stockholder protection
rights plan and
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declare a dividend of such rights or the issuance of stock under such
plans,
- make any payment under any guarantee of the preferred securities by the
Issuer, and
- purchase common stock related to the issuance of common stock under any of
the Issuer's benefit plans for its directors, officers or employees.
MODIFICATION OF INDENTURE
There are three types of changes we can make to the Indenture and the junior
subordinated debt securities.
CHANGES REQUIRING YOUR APPROVAL. The first type of change cannot be made to
your junior subordinated debt securities without your specific approval. They
are:
- a change in the stated maturity of the junior subordinated debt securities
(except to shorten or extend it as permitted by the Indenture), a
reduction in the principal amount of the junior subordinated debt
securities, or a reduction in the rate or extension of the time of payment
of interest on the junior subordinated debt securities (except for any
permitted deferral in connection with an Extension Period), and
- a reduction in the percentage of principal amount of the outstanding
junior subordinated debt securities, the holders of which are required to
consent to any modification of the Indenture.
CHANGES REQUIRING A MAJORITY VOTE. The second type of change to the
Indenture and the junior subordinated debt securities is the kind that requires
a vote in favor by holders of junior subordinated debt securities owning a
majority of the principal amount of the outstanding securities of the particular
series affected.
CHANGES NOT REQUIRING APPROVAL. The third type of change does not require
any vote of the holders of the junior subordinated debt securities. This type is
limited to (i) curing ambiguities, defects or inconsistencies as long as such
changes do not adversely affect the interests of the holders of the junior
subordinated debt securities or the related preferred securities in any material
respect and (ii) qualifying, or maintaining the qualification of, the Indenture
under the Trust Indenture Act.
CONSENT OF THE RELATED PREFERRED SECURITY HOLDERS. As long as the related
preferred securities are outstanding, the Property Trustee, as the holder of the
junior subordinated debt securities, will not be permitted to consent to any
modification, waiver or termination of the Indenture without obtaining the
consent of the holders of preferred securities as required under the Declaration
of Trust. See "Description of the Preferred Securities--Enforcement Rights".
EVENTS OF DEFAULT
You will have special rights if an Event of Default under the Indenture
occurs and is not cured, as described later in this subsection.
WHAT IS AN EVENT OF DEFAULT? The term "EVENT OF DEFAULT" under the
Indenture means any of the following:
- We do not pay interest or any Additional Sum on the junior subordinated
debt securities within 30 days of its due date (except a permitted
deferral during an Extension Period will not be a default).
- We do not pay the principal of the junior subordinated debt securities
when due, whether at maturity or upon redemption (except when the maturity
date has been extended as permitted by the Indenture).
- We remain in breach of any other covenant in the Indenture in any material
respect for 90 days after we receive a notice of default stating we are in
breach. The notice must be sent by either the Indenture Trustee or the
holders of at least 25% in aggregate principal amount of the outstanding
junior subordinated debt securities.
- We file for bankruptcy or certain other events in bankruptcy, insolvency
or reorganization occur.
REMEDIES IF AN EVENT OF DEFAULT OCCURS. If an Event of Default has occurred
and is
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continuing, either the Indenture Trustee or the holders of not less than 25% in
aggregate principal amount of the outstanding junior subordinated debt
securities may declare the principal of all junior subordinated debt securities
to be due and payable immediately. If the preferred securities are outstanding
and the Indenture Trustee or those holders of junior subordinated debt
securities fail to exercise this right, the holders of at least 25% in aggregate
Liquidation Amount of the outstanding preferred securities may do so. The
holders of a majority in aggregate principal amount of the outstanding junior
subordinated debt securities may also cancel any declaration of acceleration. If
they do not exercise this right, the holders of a majority in aggregate
Liquidation Amount of the outstanding preferred securities may do so.
The holders of a majority in aggregate principal amount of the outstanding
junior subordinated debt securities may, on behalf of the holders of all junior
subordinated debt securities, waive any default under the Indenture other than:
- a default in the payment of principal or interest (and any Additional
Sum), unless the default has been cured and a sum sufficient to pay all
matured installments of interest and principal (and any Additional Sum)
due otherwise than by acceleration has been deposited with the Indenture
Trustee, or
- a default in respect of a covenant that under the Indenture cannot be
modified or amended without the consent of the holder of each affected
junior subordinated debt security.
If they do not exercise this right, the holders of a majority in aggregate
Liquidation Amount of the outstanding preferred securities may do so.
The holders of a majority in aggregate principal amount of outstanding
junior subordinated debt securities will have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Indenture Trustee. This right, as well as the rights of the holders of junior
subordinated debt securities with regard to acceleration, cancellation and
waiver described above, will be subject to the enforcement rights of the holders
of preferred securities when the preferred securities are outstanding. See
"Description of the Preferred Securities--Enforcement Rights". The Issuer will
be obligated to provide the Indenture Trustee (and, if the preferred securities
are outstanding, the Property Trustee) annually a certificate as to whether or
not the Issuer is in compliance with the provisions of the Indenture applicable
to it.
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
We are generally permitted to consolidate or merge with another company or
firm. We are also permitted to sell, lease or otherwise transfer substantially
all of our assets to another company or firm. However, we may not take any of
these actions unless all the following conditions are met:
- If we merge out of existence or transfer our assets, the entity into which
we merge or sell our assets must be a corporation organized under the laws
of the United States, any state thereof or the District of Columbia and it
must agree to be legally responsible for the Issuer's obligations in
respect of the junior subordinated debt securities, the Indenture, the
guarantee and the expense agreement.
- Immediately after the merger or transfer of assets, no default on the debt
securities can exist. A default for this purpose would also include any
event that would be an Event of Default if the requirements for giving us
default notice or our default having to exist for a specific period of
time were disregarded.
The conditions referred to above will apply only with respect to a transaction
specifically mentioned above; other transactions, including transactions that
involve a change of control of the Issuer or an acquisition by the Issuer of the
stock or assets of another person, would not be subject to these conditions.
The general provisions of the Indenture do not afford holders of the junior
subordinated debt securities (or related preferred securities) protection in the
event of a highly leveraged or
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other transaction involving the Issuer that may adversely affect the interests
of those holders.
SATISFACTION AND DISCHARGE
The Indenture provides that, except as noted below, the Indenture will cease
to be of further effect, and the Issuer will be deemed to have satisfied and
discharged the Indenture, when the following conditions (among others) have been
satisfied:
- All debt securities not previously delivered to the Indenture Trustee for
cancellation have become due and payable or will become due and payable at
their stated maturity or on a redemption date within one year.
- The Issuer deposits with the Indenture Trustee, in trust, funds sufficient
to pay the entire indebtedness on those debt securities not previously
delivered for cancellation, for the principal and interest (including any
Additional Sums) to the date of the deposit (for debt securities that have
become due and payable) or to the stated maturity or the redemption date,
as the case may be (for debt securities that have not).
The Issuer will remain obligated to provide for registration of transfer and
exchange and notices of redemption and in certain other ministerial respects.
SUBORDINATION
Unless the prospectus supplement provides otherwise, the following
provisions will apply to the junior subordinated debt securities:
The payment of principal, any premium and interest on the junior
subordinated debt securities is subordinated in right of payment to the prior
payment in full of all of our Senior Debt. This means that in certain
circumstances where we may not be making payments on all of our debt obligations
as they come due, the holders of all of our Senior Debt will be entitled to
receive payment in full of all amounts that are due or will become due on the
Senior Debt before you and the other registered holders of junior subordinated
debt securities will be entitled to receive any payment or distribution on the
junior subordinated debt securities. These circumstances include the following
circumstances:
- We make a payment or distribute assets to creditors upon any liquidation,
dissolution, winding up or reorganization of our company, or as part of an
assignment or marshalling of our assets for the benefit of our creditors.
- We file for bankruptcy or certain other events in bankruptcy, insolvency
or similar proceedings occur.
- We make any assignment for the benefit of creditors.
- We are subject to any other marshalling of our assets.
In addition, we are generally not permitted to make payments of principal,
any premium or interest on the junior subordinated debt securities if we default
in our obligation to make payments on Senior Debt and do not cure such default.
After payment in full of all amounts owed on Senior Debt, the holders of
junior subordinated debt securities, together with the holders of any equally
ranking obligations, will be paid from the remaining assets of the Issuer the
amounts owed on the junior subordinated debt securities and those other
obligations before any payment or other distribution will be made on any capital
stock or any junior ranking obligations of the Issuer.
If any holder of junior subordinated debt securities receives any payment or
distribution on his securities before all the Senior Debt has been paid in full,
the holder must receive the payment or distribution in trust for the benefit of,
and must pay over or deliver and transfer the same to, the holders of the Senior
Debt at the time outstanding to the extent necessary to pay all the Senior Debt
in full.
These subordination provisions mean that if we are insolvent a holder of our
Senior Debt may ultimately receive out of our assets more than a holder of the
same amount of our junior subordinated debt securities, and a creditor of ours
that is owed a specific amount but who owns neither our Senior Debt nor the
junior
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subordinated debt securities may ultimately receive less than a holder of the
same amount of Senior Debt and an equal amount on a PRO RATA basis as a holder
of junior subordinated debt securities.
The term "SENIOR DEBT" means any obligation of the Issuer to its creditors,
whether existing now or incurred in the future, unless in the instrument
creating or evidencing the obligation or pursuant to which the obligation is
outstanding, it is provided that the obligation is not superior in right of
payment to the junior subordinated debt securities, and other than trade
accounts payable and accrued liabilities arising in the ordinary course of
business. Senior Debt will also include any subordinated debt of the Issuer that
does not fall within the specific exceptions described above.
The Indenture places no limitation on the amount of additional Senior Debt
that the Issuer may incur in the future. We expect to incur substantial amounts
of additional Senior Debt from time to time.
PAYMENT AND PAYING AGENTS
Unless the junior subordinated debt securities have been distributed in
exchange for the preferred securities, payments in respect of the junior
subordinated debt securities will be made to or upon the order of the Property
Trustee. If in the future the junior subordinated debt securities have been
distributed in exchange for the preferred securities, payments in respect of the
junior subordinated debt securities will be made in accordance with provisions
similar to those applicable to payments in respect of the preferred securities,
described under "Description of the Preferred Securities--Payment and Paying
Agency".
If any interest, principal or other amount is payable in respect of the
junior subordinated debt securities on a day that is not a business day, the
payment may be made on the next succeeding business day unless that business day
is in a different calendar year, in which case the payment may be made on the
next preceding Business Day. Each payment made on the next succeeding or
preceding business day as described above may be made with the same force and
effect as if made on the day on which the payment is originally payable.
Any monies deposited with the Indenture Trustee or any paying agent, or then
held by the Issuer in trust, for the payment of any amount due and payable on
any junior subordinated debt securities, and remaining unclaimed for two years
after the amount has become due and payable, will, at the request of the Issuer,
be repaid to the Issuer. Thereafter, the holders of those junior subordinated
debt securities will look, as general unsecured creditors, only to the Issuer
for payment of those amounts.
NOTICES
Copies of notices to holders of junior subordinated debt securities under
the Indenture will be given to the holders of the preferred securities in
accordance with provisions similar to those described in "Description of the
Preferred Securities--Notices" and to the Property Trustee. If in the future the
junior subordinated debt securities have been distributed in exchange for the
preferred securities, notices to holders of preferred securities will be given
to those holders in accordance with the provisions for notices to the holders of
the preferred securities referred to above.
REGARDING THE INDENTURE TRUSTEE
The Indenture Trustee will have all the duties and responsibilities
specified with respect to an indenture trustee under the Trust Indenture Act.
However, the Indenture Trustee will have no obligation to act at the request of
any holder of junior subordinated debt securities, unless such holder offers to
reimburse the Indenture Trustee for reasonable costs, expenses and liabilities
that it might incur. Also, the Indenture Trustee will not be required to expend
its own funds or otherwise incur personal financial liability in the performance
of its duties if it reasonably believes that repayment is not reasonably
certain.
GOVERNING LAW
The Indenture provides that the Indenture and the junior subordinated debt
securities are to be governed by and construed in accordance with New York law.
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DESCRIPTION OF GUARANTEE AND EXPENSE AGREEMENT
This section summarizes the main provisions of the guarantee and the expense
agreement, but it does not describe all the provisions. Consequently, this
summary is qualified by reference to the full text of the guarantee and the
expense agreement. We have filed forms of the guarantee and the expense
agreement as exhibits to the registration statement.
This section uses terms that are defined in the guarantee and the expense
agreement. Unless we define those terms in this section, we intend them to have
the meanings given them in the guarantee or the expense agreement, as
applicable.
GENERAL
The Issuer will execute the guarantee when the preferred securities are
issued. The Bank of New York will act as indenture trustee ("GUARANTEE TRUSTEE")
under the guarantee for the purpose of compliance with the Trust Indenture Act,
and the guarantee will be qualified as an indenture under the Trust Indenture
Act. The Guarantee Trustee will hold the guarantee for the benefit of the
holders of the preferred securities.
Under the guarantee, the Issuer will irrevocably agree to pay in full, on a
subordinated basis and to the extent described below, to the holders of the
preferred securities, the guarantee payments as and when due, regardless of any
defense, right of set-off or counterclaim that the Trust may have or assert
other than the defense of payment. The following payments in respect of the
preferred securities, to the extent not paid by or on behalf of the Trust, are
guarantee payments:
- any accumulated and unpaid distributions required to be paid on the
preferred securities, to the extent that the Trust has funds legally and
immediately available to pay them;
- any redemption price required to be paid on the preferred securities, to
the extent that the Trust has funds legally and immediately available to
pay it; and
- upon a voluntary or involuntary termination, winding-up or liquidation of
the Trust (unless the junior subordinated debt securities are distributed
to holders of the preferred securities in exchange for those securities),
the lesser of (i) the payments made on liquidation for the preferred
securities and (ii) the amount of assets of the Trust remaining available
for distribution to holders of preferred securities after satisfaction of
liabilities to creditors of the Trust as required by applicable law.
The Issuer may satisfy its obligation to make a guarantee payment by paying the
required amounts directly to the holders of the preferred securities or by
causing the Trust to pay them to the holders.
The Issuer will be required to make payments under the guarantee only to the
extent that the Trust has funds sufficient to make payments in respect of its
obligations under the preferred securities. If and to the extent the Issuer does
not make payments on the junior subordinated debt securities, the Trust will not
be able to make payments on the preferred securities and will not have funds
available to do so. However, through the guarantee, the Declaration of Trust,
the junior subordinated debt securities, the Junior Subordinated Indenture and
the expense agreement, taken together, the Issuer has fully, irrevocably and
unconditionally guaranteed all the Trust's obligations under the preferred
securities. See "Relationship Among Preferred Securities, Junior Subordinated
Debt Securities, Guarantee and Expense Agreement".
STATUS OF THE GUARANTEE
The guarantee will be a general unsecured obligation of the Issuer and will
be subordinated in right of payment to all liabilities of the Issuer (other than
any similar guarantees, the expense agreement and any other similar expense
agreement), including all liabilities to trade creditors, and will rank PARI
PASSU with the most senior class of any preferred stock that the Issuer may
issue. Because the Issuer is a holding company, its obligations under the
guarantee, like its obligations under the junior subordinated debt securities,
will also be effectively subordinated to all existing and future liabilities of
the Issuer's subsidiaries. See "Risk Factors--Risks Relating to
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the Preferred Securities--Our Obligations to You Will Be Deeply Subordinated",
and "Description of the Junior Subordinated Debt Securities-- Subordination".
AMENDMENTS, ASSIGNMENT AND SUCCESSION
The guarantee may not be amended without the prior approval of the holders
of a majority of the aggregate Liquidation Amount of the outstanding preferred
securities, other than in ways that do not adversely affect the rights of
holders of the preferred securities in any material respect (in which case no
approval will be required). The manner of obtaining any such approval will be
similar to the manner in which any approval to amend the Declaration of Trust
may be obtained. See "Description of the Preferred Securities--Voting Rights;
Amendment of the Declaration of Trust".
The Issuer may not assign its obligations under the guarantee without
obtaining the approval of the holders required to amend that agreement. However,
any permitted successor to the Issuer's obligations under the Indenture will
also succeed to its obligations under the guarantee. See "Description of the
Junior Subordinated Debt Securities--Consolidation, Merger, Sale of Assets and
Other Transactions". The guarantee will bind the Issuer's successors, assigns,
receivers, trustees and representatives and will inure to the benefit of the
holders of the outstanding preferred securities.
EVENTS OF DEFAULT
An event of default under the guarantee will occur if the Issuer fails to
make any guarantee payment when obligated to do so, or if the Issuer fails to
perform any other obligation and the default remains unremedied for 30 days. The
holders of a majority in aggregate Liquidation Amount of the outstanding
preferred securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee or
to direct the exercise of any trust or power conferred upon the Guarantee
Trustee under the guarantee.
The guarantee will guarantee payment and not collection. This means that any
holder of outstanding preferred securities may begin a legal proceeding directly
against the Issuer to enforce its rights under the guarantee without first
beginning a legal proceeding against the Trust, the Guarantee Trustee or any
other party.
The Issuer, as guarantor, will be obligated to file annually with the
Guarantee Trustee a certificate as to the Issuer's compliance with all the
conditions and covenants applicable to it under the guarantee.
REGARDING THE GUARANTEE TRUSTEE
The Guarantee Trustee undertakes to perform only those duties that are
specifically set forth in the guarantee, except that, after a default by the
Issuer under the guarantee, it must exercise the same degree of care and skill
as a prudent person would exercise or use in the conduct of his or her own
affairs. Subject to this provision, the guarantee Trustee is under no obligation
to exercise any of the powers vested in it by the guarantee at the request of
any holder of preferred securities unless it is offered reasonable indemnity
against the costs, expenses and liabilities that it might incur as a result.
TERMINATION OF THE GUARANTEE
The guarantee will terminate and be of no further force or effect when:
- the guarantee payments have been paid in full by the Issuer, the Trust or
both; or
- the junior subordinated debt securities are distributed to the holders of
the preferred securities in exchange for their securities.
Until that time, the guarantee will remain in full force and effect. In
addition, the guarantee will continue to be effective or will be reinstated, as
the case may be, if at any time any holder of the preferred securities must
restore payment of any sums paid to it under the preferred securities or the
guarantee.
GOVERNING LAW
The guarantee provides that it is to be governed by and construed in
accordance with New York law.
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EXPENSE AGREEMENT
In the expense agreement, the Issuer will irrevocably and unconditionally
guarantee to each person to whom the Trust becomes indebted or liable the full
payment of all the Trust's costs, expenses and liabilities, other than the
obligations of the Trust to pay amounts due to the holders of the preferred
securities and common securities pursuant to the terms of those securities. The
expense agreement will be enforceable by third parties.
The Issuer's obligations under the expense agreement will be subordinated in
right of payment to the same extent as the guarantee. The Issuer's obligations
under the expense agreement will be subject to provisions regarding amendment,
termination, assignment, succession and governing law similar to those
applicable to the guarantee.
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RELATIONSHIP AMONG PREFERRED SECURITIES, JUNIOR SUBORDINATED DEBT SECURITIES,
GUARANTEE AND EXPENSE AGREEMENT
FULL AND UNCONDITIONAL GUARANTEE
Taken together, the Issuer's obligations under the Declaration of Trust, the
junior subordinated debt securities, the Junior Subordinated Indenture, the
guarantee and the expense agreement provide a full, irrevocable and
unconditional guarantee of the Trust's obligations under the preferred
securities. No single document standing alone or operating in conjunction with
fewer than all the other documents provides this guarantee. It is only the
combined operation of these documents that has the effect of providing a full,
irrevocable and unconditional guarantee of the Trust's obligations under the
preferred securities.
If and to the extent that the Issuer does not make payments on the junior
subordinated debt securities, the Trust will not have funds available for
payments on the preferred securities. The guarantee will not apply to payment of
any amounts due on the preferred securities when the Trust does not have
available funds to pay those amounts. In that event, the remedy of a holder of
preferred securities is to exercise its right of Direct Action--that is, to
begin a legal proceeding directly against the Issuer for enforcement of the
Issuer's obligations under junior subordinated debt securities having a
principal amount equal to the Liquidation Amount of the preferred securities
held by the holder.
If the Issuer makes payment on the junior subordinated debt securities and
the Trust has funds available to make payments on the preferred securities but
fails to do so, a holder of preferred securities may begin a legal proceeding
against the Issuer to enforce the Issuer's obligations under the guarantee to
make these payments. In the event that the Trust receives payments on the junior
subordinated debt securities, but these funds are unavailable for payment on the
preferred securities because of claims made by creditors of the Trust, the
Issuer would be obligated under the expense agreement to pay those claims.
The obligations of the Issuer under the junior subordinated debt securities
are subordinated in right of payment to all Senior Debt of the Issuer. They are
subordinated in the manner described in "Description of the Junior Subordinated
Debt Securities--Subordination". The obligations of the Issuer under the
guarantee and the expense agreement are subordinated in right of payment to all
liabilities of the Issuer (other than similar guarantees and expense
agreements), including liabilities to trade creditors, and will rank PARI PASSU
with the most senior class of preferred stock that the Issuer may issue.
SUFFICIENCY OF PAYMENTS
As long as payments are made when due on the junior subordinated debt
securities, those payments should be sufficient to fund distributions and other
amounts payable on the preferred securities, primarily because:
- The aggregate principal amount of the junior subordinated debt securities
will equal the aggregate Liquidation Amount of the preferred securities
and the common securities.
- The interest rate, interest payment dates and other payment dates for the
junior subordinated debt securities will match the distribution rate,
distribution dates and other payment dates for the preferred securities.
- The expense agreement provides that the Issuer will pay any and all costs,
expenses and liabilities of the Trust, other than the Trust's obligations
under the preferred securities and common securities.
- The Declaration of Trust provides that the Trust will not engage in any
activity that is not consistent with the limited purposes of the Trust.
Notwithstanding anything to the contrary in the Junior Subordinated
Indenture, the Issuer has the right to set off any payment it makes under the
guarantee in respect of the preferred securities against any payment it is
otherwise required to make under the Junior Subordinated Indenture in respect of
the junior subordinated debt securities.
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ENFORCEMENT RIGHTS OF HOLDERS OF PREFERRED SECURITIES
A holder of preferred securities may begin a legal proceeding directly
against the Issuer to enforce its right of Direct Action under the Junior
Subordinated Indenture without first beginning a legal proceeding against the
Trust, the Property Trustee or any other party. A holder of preferred securities
may also begin a legal proceeding directly against the Issuer to enforce its
rights under the guarantee without first instituting a legal proceeding against
the Guarantee Trustee, the Trust or any other party.
A default or event of default under any Senior Debt of the Issuer would not
be a default with respect to the preferred securities or the junior subordinated
debt securities. However, in the event of a payment default under, or
acceleration of, any Senior Debt of the Issuer, the subordination provisions of
the Junior Subordinated Indenture, the guarantee and the expense agreement
provide that no payments may be made in respect of the junior subordinated debt
securities, the guarantee or the expense agreement until the Senior Debt has
been paid in full or any payment default under that debt has been cured or
waived. See "Description of the Junior Subordinated Debt Securities--
Subordination".
LIMITED PURPOSE OF TRUST
The preferred securities evidence a preferred undivided beneficial interest
in the assets of the Trust, and the Trust exists solely to issue and sell the
preferred securities and common securities, invest the sale proceeds in the
junior subordinated debt securities and engage only in such other activities as
may be necessary or incidental to those activities. A principal difference
between the rights of a holder of preferred securities against the Trust and
those of a holder of junior subordinated debt securities against the Issuer is
that a holder of junior subordinated debt securities is entitled to receive from
the Issuer all amounts payable on the preferred securities, while a holder of
preferred securities is entitled to receive from the Trust (or from the Issuer
under the guarantee) amounts payable on the junior subordinated debt securities
ONLY if and to the extent the Trust has funds available to pay those amounts.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary dissolution of the Trust, the holders of
preferred securities will be entitled to receive a Like Amount of junior
subordinated debt securities in exchange for their preferred securities, subject
to prior satisfaction of liabilities to creditors of the Trust as required by
applicable law. If the Property Trustee determines that a distribution of junior
subordinated debt securities is not practical, the holders of preferred
securities will be entitled to receive the Liquidation Distribution out of the
assets held by the Trust after satisfaction of those liabilities. See
"Description of the Preferred Securities--Liquidation Distribution upon
Dissolution".
Upon any voluntary or involuntary liquidation or bankruptcy of the Issuer,
the Property Trustee, as registered holder of the junior subordinated debt
securities, would be a subordinated creditor of the Issuer, subordinated in
right of payment to all Senior Debt as set forth in the Junior Subordinated
Indenture. However, the Property Trustee would be entitled to receive payment in
full of all amounts payable with respect to the junior subordinated debt
securities before any holders of the Issuer's capital stock receive payments or
distributions.
In the light of the effective guarantee provided by the combined operation
of the documents described above and the subordinated status of the obligations
they evidence, the positions of a holder of preferred securities and a holder of
junior subordinated debt securities, relative to other creditors and to
stockholders of the Issuer, in the event of liquidation or bankruptcy of the
Issuer, should be substantially the same.
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ACCOUNTING TREATMENT OF PREFERRED SECURITIES
For financial reporting purposes, each Trust will be treated as a subsidiary
of the Issuer and, accordingly, the accounts of the Trust will be included in
the consolidated financial statements of the Issuer. The preferred securities
will be presented as a separate line item in the consolidated balance sheets of
the Issuer, entitled "Company--obligated mandatorily redeemable preferred
securities", and appropriate disclosures about the preferred securities, the
guarantee and the junior subordinated debt securities will be included in the
notes to the consolidated financial statements. For financial reporting
purposes, the Issuer will record distributions payable on the preferred
securities as minority interest in net income (loss) of consolidated
subsidiaries in the consolidated statements of operations.
U.S. FEDERAL INCOME TAX CONSEQUENCES RELATING
TO PREFERRED SECURITIES
The following is a summary of the principal U.S. federal income tax
consequences of the purchase, ownership and disposition of preferred securities.
This summary only addresses the U.S. federal income tax consequences to a person
that acquires preferred securities on their original issue at their original
offering price and that is:
- an individual citizen or resident of the United States;
- a corporation organized in or under the laws of the United States or any
state thereof or the District of Columbia;
- an estate the income of which is subject to U.S. federal income tax
without regard to its source; or
- a trust if a U.S. court is able to exercise primary supervision over
administration of the trust and one or more U.S. persons have authority to
control all substantial decisions of the trust.
We refer to the above persons as "U.S. HOLDERS".
In the case of a holder of preferred securities that is a partnership for
U.S. tax purposes, each partner will take into account its allocable share of
income or loss from the preferred securities, and will take such income or loss
into account under the rules of taxation applicable to such partner, in light of
the activities of the partnership and the partner.
This summary does not address the tax consequences to:
- persons that are not United States Holders, except as described below
under "--U.S. Alien Holders";
- persons that may be subject to special treatment under U.S. federal income
tax law, such as banks, insurance companies, thrift institutions,
regulated investment companies, real estate investment trusts, tax-exempt
organizations, traders in securities that elect to mark to market and
dealers in securities or currencies;
- persons that will hold preferred securities as part of a position in a
"straddle" or as part of a "hedging", "conversion" or other integrated
investment transaction for U.S. federal income tax purposes;
- persons whose functional currency is not the U.S. dollar; or
- persons that do not hold preferred securities as capital assets.
The statements of law or legal conclusion set forth in this summary
constitute the opinion of Sullivan & Cromwell, counsel to the Issuers and the
Trusts. This summary is based upon the U.S. Internal Revenue Code of 1986, as
amended (the "CODE"), Treasury regulations, Internal Revenue Service rulings and
pronouncements and judicial decisions now in effect, all of which are subject to
change at any time. Such changes may be applied retroactively in a manner that
could cause the tax consequences to vary substantially from the consequences
described below, possibly adversely
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affecting a beneficial owner of preferred securities. The authorities on which
this summary is based are subject to various interpretations, and it is
therefore possible that the federal income tax treatment of the purchase,
ownership and disposition of preferred securities may differ from the treatment
described below.
YOU ARE ADVISED TO CONSULT WITH YOUR OWN TAX ADVISORS IN LIGHT OF YOUR OWN
PARTICULAR CIRCUMSTANCES AS TO THE U.S. FEDERAL TAX CONSEQUENCES OF THE
PURCHASE, OWNERSHIP AND DISPOSITION OF PREFERRED SECURITIES, AS WELL AS THE
EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS.
CLASSIFICATION OF THE TRUST
Under current law and assuming full compliance with the terms of the
Declaration of Trust, the Junior Subordinated Indenture and certain other
documents, the Trust will not be taxable as a corporation for U.S. federal
income tax purposes. As a result, each beneficial owner of preferred securities
will be required to include in its gross income its pro rata share of the
interest income, including OID, paid or accrued with respect to the junior
subordinated debt securities, whether or not cash is actually distributed to the
beneficial owners of preferred securities. See "--Interest Income and Original
Issue Discount".
INTEREST INCOME AND ORIGINAL
ISSUE DISCOUNT
Under applicable Treasury regulations (the "REGULATIONS"), a "remote"
contingency that stated interest will not be timely paid will be ignored in
determining whether such debt instrument is issued with OID. As a result of
terms and conditions of the junior subordinated debt securities that prohibit
certain payments with respect to the Issuer's capital stock and indebtedness if
the Issuer elects to extend interest payment periods, the Issuer believes that
the likelihood of its exercising its option to defer payments is remote. See
"Description of the Junior Subordinated Debt Securities--Interest". Based on the
foregoing, the Issuer believes that the junior subordinated debt securities will
not be considered to be issued with OID at the time of their original issuance.
The following discussion assumes that unless and until the Issuer exercises
its option to defer any payment of interest, the junior subordinated debt
securities will not be treated as issued with OID.
Under the Regulations, if the Issuer exercises its option to defer any
payment of interest, the junior subordinated debt securities would at that time
be treated as issued with OID, and all stated interest on the junior
subordinated debt securities would thereafter be treated as OID as long as the
junior subordinated debt securities remained outstanding. In such event, all of
the taxable interest income of a beneficial owner of preferred securities with
respect to the junior subordinated debt securities would be accounted for as OID
on an economic accrual basis using a constant yield method regardless of such
beneficial owner's method of tax accounting, and actual distributions of stated
interest would not be reported as taxable income. Consequently, a beneficial
owner would be required to include OID in gross income even though the Issuer
would not make any actual cash payments during an Extension Period.
The Regulations have not been addressed in any rulings or other
interpretations by the IRS, and it is possible that the IRS could take a
position contrary to the interpretation herein.
Because income on the preferred securities will constitute interest or OID,
corporate U.S. Holders of the preferred securities will not be entitled to a
dividends-received deduction with respect to any income taken into account with
respect to the preferred securities.
Subsequent uses of the term "INTEREST" in this summary include income in the
form of OID.
DISTRIBUTION OF JUNIOR SUBORDINATED DEBT SECURITIES TO HOLDERS OF PREFERRED
SECURITIES UPON LIQUIDATION OF THE TRUST
Under current law, a distribution by the Trust of the junior subordinated
debt securities as described under the caption "Description of the Preferred
Securities--Liquidation Distribution upon Dissolution" will be non-taxable and
will result in the beneficial owner receiving directly its pro rata share of the
junior subordinated debt securities previously held indirectly through the
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Trust, with a holding period and aggregate tax basis equal to the holding period
and aggregate tax basis such beneficial owner had in its preferred securities
before such distribution. If, however, the liquidation of the Trust were to
occur because the Trust is subject to U.S. federal income tax with respect to
income accrued or received on the junior subordinated debt securities, the
distribution of junior subordinated debt securities to a beneficial owner by the
Trust would be a taxable event to the Trust and each beneficial owner would
recognize gain or loss as if the beneficial owner had exchanged its preferred
securities for the junior subordinated debt securities it received upon the
liquidation of the Trust. A beneficial owner will include interest in income in
respect of junior subordinated debt securities received from the Trust in the
manner described above under "--Interest Income and Original Issue Discount".
SALE OR REDEMPTION OF PREFERRED SECURITIES
A beneficial owner that sells preferred securities (including through a
redemption for cash) will recognize gain or loss equal to the difference between
its adjusted tax basis in the preferred securities and the amount realized on
the sale of such preferred securities. Assuming that the Issuer does not
exercise its option to defer payment of interest on the junior subordinated debt
securities, a beneficial owner's adjusted tax basis in the preferred securities
generally will be its initial purchase price. If the junior subordinated debt
securities are deemed to be issued with OID as a result of the Issuer's deferral
of interest payments, a beneficial owner's adjusted tax basis in the preferred
securities generally will be its initial purchase price, increased by OID
previously includible in such U.S. Holder's gross income to the date of
disposition and decreased by distributions or other payments received on the
preferred securities since and including the date of the first Extension Period.
Such gain or loss generally will be a capital gain or loss (except to the extent
any amount realized is treated as a payment of accrued interest with respect to
such beneficial owner's pro rata share of the junior subordinated debt
securities required to be included in income) and generally will be long-term
capital gain or loss if the preferred securities have been held for more than
one year. Long-term capital gain of a non-corporate U.S. Holder is generally
subject to a maximum tax rate of 20%.
If the Issuer exercises its option to defer any payment of interest on the
junior subordinated debt securities, the preferred securities may trade at a
price that does not accurately reflect the value of accrued but unpaid interest
with respect to the underlying junior subordinated debt securities. A beneficial
owner who disposes of its preferred securities between record dates for payments
of distributions thereon will be required to include accrued but unpaid interest
on the junior subordinated debt securities through the date of disposition in
income as ordinary income, but may not receive the cash related thereto.
However, such beneficial owner will add such amount to its adjusted tax basis in
the preferred securities. To the extent the selling price is less than the
beneficial owner's adjusted tax basis, such beneficial owner will recognize a
capital loss. Subject to certain limited exceptions, capital losses cannot be
applied to offset ordinary income for U.S. federal income tax purposes.
BACKUP WITHHOLDING TAX AND INFORMATION REPORTING
The amount of interest income paid and OID accrued on the preferred
securities held of record by U.S. Holders (other than corporations and other
exempt U.S. Holders) will be reported to the IRS. "BACKUP WITHHOLDING" at a rate
of 31% will apply to payments of interest to a non-exempt U.S. Holder unless the
U.S. Holder furnishes its taxpayer identification number in the manner
prescribed in applicable Treasury regulations, certifies that such number is
correct, certifies as to no loss of exemption from backup withholding and meets
certain other conditions.
Payment of the proceeds from the disposition of preferred securities to or
through the U.S. office of a broker is subject to information reporting and
backup withholding unless the beneficial owner establishes an exemption from
information reporting and backup withholding.
Backup withholding is not an additional tax. Any amounts withheld from a
beneficial owner under the backup withholding rules will be
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allowed as a refund or a credit against such beneficial owner's U.S. federal
income tax liability, provided the required information is furnished to the IRS.
It is anticipated that income on the preferred securities will be reported
to holders on Form 1099, which is expected to be mailed to holders of the
preferred securities by January 31 following each calendar year.
POSSIBLE TAX LAW CHANGES
You should be aware that legislation has been proposed by the Clinton
Administration in the past that, if enacted, would have denied an interest
expense deduction to issuers of instruments such as the junior subordinated debt
securities. No such legislation is currently pending. There can be no assurance,
however, that similar legislation will not ultimately be enacted into law, or
that other developments will not occur on or after the date hereof that would
adversely affect the tax treatment of the junior subordinated debt securities or
the Trust. Changes of that kind also could give rise to a Tax Event, which would
permit the Issuer to cause a redemption of the preferred securities, as
described more fully under the section captioned "Description of the Preferred
Securities--Mandatory Redemption".
U.S. ALIEN HOLDERS
For purposes of this discussion, a "U.S. ALIEN HOLDER" is any beneficial
owner of preferred securities that is for U.S. federal income tax purposes:
- a nonresident alien individual, or
- a foreign corporation or partnership or estate or trust, in each case not
subject to U.S. federal income tax on a net income basis in respect of
income or gain in respect of the preferred securities.
Under present U.S. federal income tax laws:
- payments by the Trust or any of its paying agents to any holder of
preferred securities who is a U.S. Alien Holder will not be subject to
withholding of U.S. federal income tax; PROVIDED THAT,
- the beneficial owner of the preferred securities does not actually or
constructively own 10 percent or more of the total combined voting power
of all classes of stock of the Issuer entitled to vote;
- the beneficial owner of the preferred securities is not a controlled
foreign corporation that is related to the Issuer through stock ownership;
and
- either
- the beneficial owner of the preferred securities certifies to the Trust
or its agent, under penalty of perjury, that it is not a U.S. Holder and
provides its name and address, or
- a securities clearing organization, bank or other financial institution
that holds customers' securities in the ordinary course of its trade or
business (a "FINANCIAL INSTITUTION"), and holds the preferred securities
in such capacity, certifies to the Trust or its agent, under penalty of
perjury, that such statement has been received from the beneficial owner
by it or by a Financial Institution between it and the beneficial owner
and furnishes the Trust or its agent with a copy thereof.
- In addition, a U.S. Alien Holder of preferred securities will generally
not be subject to U.S. federal income tax on any gain realized upon the
sale or other disposition of preferred securities unless the gain is
effectively connected with the conduct of a trade or business in the
United States by the U.S. Alien Holder or such U.S. Alien Holder is an
individual who is present in the United States for 183 days or more in the
taxable year of the disposition and certain other conditions are met.
Recently finalized Treasury regulations that are generally effective with
respect to payments after December 31, 1999 would provide alternative methods
for satisfying the certification requirements described above. These regulations
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also would require, in the case of preferred securities held by a foreign
partnership, that
- the certification described above be provided by the partners rather than
by the foreign partnership, and
- the partnership provide certain information, including a U.S. taxpayer
identification number.
A look-through rule would apply in the case of tiered partnerships.
Under certain circumstances, payments on the sale, exchange or other
disposition of preferred securities by a U.S. Alien Holder may be subject to
"backup withholding" at a rate of 31% and/or information reporting may be
required, unless such U.S. Alien Holder certifies that it is not a U.S. Holder
and provides its name and address as described above or otherwise properly
establishes an exemption.
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PLAN OF DISTRIBUTION
The Issuers and the Trusts may sell the securities to one or more
underwriters for public offering and sale by them or may sell the securities to
investors directly or through agents. The name of any such underwriter or agent
involved in the offer and sale of the securities, the amounts underwritten and
the nature of its obligation to take the securities will be named in the
applicable prospectus supplement. The Issuers and the Trusts have reserved the
right to sell the securities directly to investors on their own behalf in those
jurisdictions where they are authorized to do so.
Underwriters may offer and sell the securities at a fixed price or prices
that may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. They may offer
the securities on an exchange, which will be disclosed in the applicable
prospectus supplement. The Issuers and the Trusts also may, from time to time,
authorize dealers, acting as their agents, to offer and sell the securities upon
such terms and conditions as set forth in the applicable prospectus supplement.
In connection with the sale of the securities, underwriters may receive
compensation from the Issuers and the Trusts in the form of underwriting
discounts or commissions and may also receive commissions from purchasers of the
securities for whom they may act as agent. Underwriters may sell the securities
to or through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
(which may be changed from time to time) from the purchasers for whom they may
act as agents.
Any underwriting compensation paid by the applicable Issuer and the
applicable Trust to underwriters or agents in connection with the offering of
the securities, and any discounts, concessions or commissions allowed by
underwriters to participating dealers, will be set forth in the applicable
prospectus supplement. Dealers and agents participating in the distribution of
the securities may be deemed to be underwriters, and any discounts and
commissions received by them and any profit realized by them on resale of the
securities may be deemed to be underwriting discounts and commissions under the
Securities Act. Underwriters, dealers and agents may be entitled, under
agreements entered into with the applicable Issuer and the applicable Trust, to
indemnification against and contribution towards certain civil liabilities,
including any liabilities under the Securities Act.
Until the distribution of the securities is completed, rules of the
Commission may limit the ability of the underwriters to bid for and purchase the
securities. As an exception to these rules, the underwriters are permitted to
engage in certain transactions that stabilize the price of the securities. Such
transactions consist of bids or purchases for the purpose of pegging, fixing or
maintaining the price of the securities. If the underwriters create a short
position in the securities in connection with the offering, I.E., if they sell
more securities than are set forth on the cover page of the applicable
prospectus supplement, the underwriters may reduce that short position by
purchasing securities in the open market. The underwriters may also impose a
penalty bid on certain underwriters. This means that if the underwriters
purchase the securities in the open market to reduce the underwriters' short
position or to stabilize the price of the securities, they may reclaim the
amount of the selling concession from the underwriters who sold those securities
as part of the offering. In general, purchases of a security for the purpose of
stabilization or to reduce a short position could cause the price of the
security to be higher than it might be in the absence of such purchases. The
imposition of a penalty bid might also have an effect on the price of a security
to the extent that it were to discourage resales of the security.
Any securities issued hereunder will be new issues of securities with no
established trading market. Any underwriters or agents to or through whom such
securities are sold for public offering and sale may make a market in such
securities, but such underwriters or agents will not be obligated to do so and
may discontinue any market making at any time without notice. No assurance can
be given as to the liquidity of the trading market for any such securities.
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The amount of expenses expected to be incurred by us in connection with any
issuance of securities will be set forth in the prospectus supplement. Certain
of the underwriters, dealers or agents and their associates may engage in
transactions with, and perform services for, the Issuers and certain of their
affiliates in the ordinary course.
VALIDITY OF THE SECURITIES
The validity of any securities issued hereunder will be passed upon for the
Issuers by Sullivan & Cromwell, New York, New York, counsel to the Issuers, and
for the Trusts with respect to certain matters of Delaware law by Morris,
Nichols, Arsht & Tunnell, Wilmington, Delaware, special Delaware counsel to the
Trusts. Unless otherwise indicated in the applicable prospectus supplement, the
validity of any securities issued hereunder will be passed upon for any agents
or underwriters by Shearman & Sterling, New York, New York.
EXPERTS
The consolidated financial statements and schedule of CSC Holdings and its
subsidiaries as of December 31, 1998 and 1997 and for each of the years in the
three-year period ended December 31, 1998 that are incorporated in this
prospectus by reference have been incorporated herein and in the registration
statement in reliance upon the report of KPMG LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
The consolidated financial statements and schedule of Cablevision and its
subsidiaries as of December 31, 1998 and 1997 and for each of the years in the
three-year period ended December 31, 1998 that are incorporated in this
prospectus by reference have been incorporated herein and in the registration
statement in reliance upon the report of KPMG LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
It is expected that the following expenses (all of which will be paid by the
registrants) will be incurred in connection with the registration and
distribution of the securities:
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee................... $ 417,000
Blue Sky fees and expenses...................................... 15,000
Legal fees and expenses......................................... 350,000
Accounting fees and expenses.................................... 150,000
Printing and engraving expenses................................. 350,000
Trustee's and Depositary's fees and expenses.................... 15,000
Rating Agency fees.............................................. 100,000
Stock Exchange listing fees..................................... 30,000
Miscellaneous................................................... 73,000
---------
Total......................................................... $1,500,000
---------
---------
</TABLE>
All of these expenses except the Securities and Exchange Commission filing
fee represent estimates only.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation--a "DERIVATIVE ACTION"), if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including
attorneys' fees) actually and reasonably incurred in connection with the defense
or settlement of such action, and the statute requires court approval before
there can be any indemnification where the person seeking indemnification has
been found liable to the corporation. The statute provides that it is not
exclusive of other rights to which those seeking indemnification may be entitled
under any by-law, agreement, vote of stockholders or disinterested directors or
otherwise.
The first paragraph of Article Ninth of each Issuer's Certificate of
Incorporation provides:
The corporation shall, to the fullest extent permitted by Section 145 of
the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, or by any successor thereto, indemnify any and all
persons whom it shall have power to indemnify under said section from and
against any and all of the expenses, liabilities or other matters referred
to in or covered by said section. Such right to indemnification shall
continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person. The indemnification provided for herein
shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any By-Law, agreement, vote of
stockholders or disinterested directors or otherwise.
Article VIII of the By-Laws of each Issuer provides:
A. The corporation shall indemnify each person who was or is made a
party or is threatened to be made a party to or is involved in any
threatened, pending or completed action, suit or proceeding,
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whether civil, criminal, administrative or investigative (hereinafter a
"PROCEEDING"), by reason of the fact that he or she, or a person of whom he
or she is the legal representative, is or was a director or officer of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such proceeding
is alleged action in an official capacity as a director, officer, employee
or agent or alleged action in any other capacity while serving as a
director, officer, employee or agent, to the maximum extent authorized by
the Delaware General Corporation Law, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that
such amendment permits the corporation to provide broader indemnification
rights than said law permitted the corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or
to be paid in settlement) reasonably incurred by such person in connection
with such proceeding. Such indemnification shall continue as to a person who
has ceased to be a director, officer, employee or agent and shall inure to
the benefit of his or her heirs, executors and administrators. The right to
indemnification conferred in this Article shall be a contract right and
shall include the right to be paid by the corporation the expenses incurred
in defending any such proceeding in advance of its final disposition;
PROVIDED THAT, if the Delaware General Corporation Law so requires, the
payment of such expenses incurred by a director or officer in advance of the
final disposition of a proceeding shall be made only upon receipt by the
corporation of an undertaking by or on behalf of such person to repay all
amounts so advanced if it shall ultimately be determined that such person is
not entitled to be indemnified by the corporation as authorized in this
Article or otherwise.
B. The right to indemnification and advancement of expenses conferred on
any person by this Article shall not limit the corporation from providing
any other indemnification permitted by law nor shall it be deemed exclusive
of any other right which any such person may have or hereafter acquire under
any statute, provision of the Certificate of Incorporation, by-law,
agreement, vote of stockholders or disinterested directors or otherwise.
C. The corporation may purchase and maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
corporation or another corporation, partnership, joint venture, or other
enterprise against any expense, liability or loss, whether or not the
corporation would have the power to indemnify such person against such
expense, liability or loss under the Delaware General Corporation Law.
Cablevision has entered into indemnification agreements with certain of its
officers and directors indemnifying such officers and directors from and against
certain expenses, liabilities or other matters referred to in or covered by
Section 145 of the Delaware General Corporation Law. Cablevision maintains
directors' and officers' liability insurance.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
payments of unlawful dividends or unlawful stock repurchases or redemptions, or
(iv) for any transaction from which the director derived an improper personal
benefit. The second paragraph of Article Ninth of each Issuer's Certificate of
Incorporation provides for such limitation of liability.
Under each Declaration of Trust, CSC Holdings or Cablevision, as applicable,
will agree to indemnify each of the Trust Trustees, each Administrator, each
Paying Agent, any Affiliate, officer, director, shareholder, employee,
representative or agent of any Trust Trustee, and any employee or agent of the
issuing Trust (each an "Indemnified Person"), and to hold such Indemnified
Person harmless against, any
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loss, damage, claims, liability or expense incurred without negligence, bad
faith or wilful misconduct on its part, arising out of or in connection with the
acceptance or administration of the Trust Agreement, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties under the Trust
Agreement.
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
*1.1 --Form of Underwriting Agreement for Debt Securities.
*1.2 --Form of Underwriting Agreement for Preferred Stock.
*1.3 --Form of Underwriting Agreement for Preferred Securities.
4.1 --Certificate of Incorporation of Cablevision Systems Corporation (incorporated by
reference to Exhibit 3.1 to the Registration Statement on Form S-4 filed by
Cablevision Systems Corporation on January 20, 1998, File No. 333-44547 (the
"Form S-4").
4.2 --Certificate of Incorporation of CSC Holdings, Inc. (incorporated by reference to
Exhibits 3.1A(i) and 3.1A(ii) to CSC Holdings' Annual Report on Form 10-K for the
year ended December 31, 1989).
4.2A --Certificate of Designations for the Series H Redeemable Exchangeable Preferred
Stock of CSC Holdings, Inc. (incorporated by reference to Exhibit 4.1C to CSC
Holdings' Registration Statement on Form S-4, File No. 33-63691).
4.2B --Certificate of Designations for the Series I Cumulative Convertible Exchangeable
Preferred Stock of CSC Holdings, Inc. (incorporated by reference to Exhibit 99.3
to CSC Holdings' Current Report on Form 8-K filed November 7, 1995).
4.2C --Certificate of Designations for the Series M Redeemable Exchangeable Preferred
Stock of CSC Holdings, Inc. (incorporated by reference to Exhibit 4.1F to CSC
Holdings' Registration Statement on Form S-4, File No. 333-02527).
4.3 --By-laws of Cablevision Systems Corporation (incorporated by reference to Exhibit
3.2 to the Form S-4).
4.4 --By-laws of CSC Holdings, Inc. (incorporated by reference to Exhibit 3.20 to CSC
Holdings' Registration Statement on Form S-4, File No. 33-62717).
4.5 --Senior Indenture (incorporated by reference to Exhibit 4.1 to CSC Holdings'
Registration Statement on Form S-3, File No. 333-57407).
4.6 --Subordinated Indenture (incorporated by reference to Exhibit 4.2 to CSC Holdings'
Registration Statement on Form S-3, File No. 333-57407).
4.7 --Form of Junior Subordinated Indenture.
4.8 --Form of Debt Security (included in the Senior Indenture, the Subordinated
Indenture and the Junior Subordinated Indenture).
*4.9 --Form of Certificate of Designations.
*4.10 --Form of Depositary Agreement.
*4.11 --Form of Depositary Receipt.
**4.12 --Certificate of Trust of CSC Capital I.
**4.13 --Certificate of Trust of CSC Capital II.
**4.14 --Certificate of Trust of CSC Capital III.
4.15 --Declaration of Trust of CSC Capital I.
</TABLE>
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<TABLE>
<C> <S>
4.16 --Declaration of Trust of CSC Capital II.
4.17 --Declaration of Trust of CSC Capital III.
4.18 --Form of Amended and Restated Declaration of Trust for each of CSC Capital I, II
and III.
4.19 --Form of Preferred Security (included in the Form of Amended and Restated
Declaration of Trust for each of CSC Capital I, II and III).
4.20 --Form of Preferred Securities Guarantee.
4.21 --Form of Agreement as to Expenses and Liabilities.
5.1 --Opinion of Sullivan & Cromwell.
5.2 --Opinion of Morris, Nichols, Arsht & Tunnel.
8.1 --Opinion of Sullivan & Cromwell as to tax matters.
12.1 --Computation of Ratio of Earnings to Fixed Charges and to Fixed Charges and
Preferred Stock Dividends.
23.1 --Consents of Sullivan & Cromwell (included in Exhibit 5.1 and Exhibit 8.1).
23.2 --Consent of Morris, Nichols, Arsht & Tunnel (included in Exhibit 5.2).
23.3 --Consent of KPMG LLP.
**24.1 --Powers of Attorney.
25.1 --Form of T-1 Statement of Eligibility of the Senior Indenture Trustee.
25.2 --Form of T-1 Statement of Eligibility of the Subordinated Indenture Trustee.
25.3 --Form of T-1 Statement of Eligibility of the CSC Holdings, Inc. Junior
Subordinated Indenture Trustee.
25.4 --Form of T-1 Statement of Eligibility of the Cablevision Systems Corporation
Junior Subordinated Indenture Trustee.
25.5 --Form of T-1 Statement of Eligibility of the Property Trustee for the Amended and
Restated Trust Agreement of CSC Capital I.
25.6 --Form of T-1 Statement of Eligibility of the Property Trustee for the Amended and
Restated Trust Agreement of CSC Capital II.
25.7 --Form of T-1 Statement of Eligibility of the Property Trustee for the Amended and
Restated Trust Agreement of CSC Capital III.
25.8 --Form of T-1 Statement of Eligibility of the CSC Holdings, Inc. Preferred
Securities Guarantee Trustee under the Guarantee for the benefit of holders of
Preferred Securities of CSC Capital I.
25.9 --Form of T-1 Statement of Eligibility of the CSC Holdings, Inc. Preferred
Securities Guarantee Trustee under the Guarantee for the benefit of holders of
Preferred Securities of CSC Capital II.
25.10 --Form of T-1 Statement of Eligibility of the CSC Holdings, Inc. Preferred
Securities Guarantee Trustee under the Guarantee for the benefit of holders of
Preferred Securities of CSC Capital III.
25.11 --Form of T-1 Statement of Eligibility of the Cablevision Systems Corporation
Preferred Securities Guarantee Trustee under the Guarantee for the benefit of
holders of Preferred Securities of CSC Capital I.
25.12 --Form of T-1 Statement of Eligibility of the Cablevision Systems Corporation
Preferred Securities Guarantee Trustee under the Guarantee for the benefit of
holders of Preferred Securities of CSC Capital II.
</TABLE>
II-4
<PAGE>
<TABLE>
<C> <S>
25.13 --Form of T-1 Statement of Eligibility of the Cablevision Systems Corporation
Preferred Securities Guarantee Trustee under the Guarantee for the benefit of
holders of Preferred Securities of CSC Capital III.
</TABLE>
- ------------------------
* To be filed as an exhibit to a Current Report on Form 8-K.
** Previously filed.
ITEM 17. UNDERTAKINGS.
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the Registration Statement; notwithstanding the foregoing, any increase
or decrease in the volume of securities offered (if the total dollar
value of securities would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table
in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrants
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA FIDE offering
thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described
in Item 15 or otherwise, the registrants have been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the
II-5
<PAGE>
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrants of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by any such director, officer or
controlling person in connection with the securities being registered, the
registrants will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether or not such indemnification is against
public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment to the
Registration Statement to be signed on its behalf by the undersigned, hereunto
duly authorized, in the Town of Oyster Bay and the State of New York, on the 5th
day of April, 1999.
<TABLE>
<S> <C> <C>
CABLEVISION SYSTEMS CORPORATION
By: /s/ WILLIAM J. BELL
-----------------------------------------
Name: William J. Bell
Title: Vice Chairman
CSC HOLDINGS, INC.
By: /s/ WILLIAM J. BELL
-----------------------------------------
Name: William J. Bell
Title: Vice Chairman
CSC CAPITAL I
By: CSC Holdings, Inc., as Depositor
By: /s/ WILLIAM J. BELL
-----------------------------------------
Name: William J. Bell
Title: Vice Chairman
CSC CAPITAL II
By: CSC Holdings, Inc., as Depositor
By: /s/ WILLIAM J. BELL
-----------------------------------------
Name: William J. Bell
Title: Vice Chairman
CSC CAPITAL III
By: CSC Holdings, Inc., as Depositor
By: /s/ WILLIAM J. BELL
-----------------------------------------
Name: William J. Bell
Title: Vice Chairman
</TABLE>
II-7
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment to the Registration Statement has been signed below by the following
persons in the capacities indicated and on April 5, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------------------ ---------------------------------------------------------
<C> <S>
President, Chief Executive Officer and Director of
* Cablevision Systems Corporation and CSC Holdings, Inc.
------------------------------------------- (Principal Executive Officer of Cablevision Systems
James L. Dolan Corporation and CSC Holdings, Inc.)
Vice Chairman and Director of Cablevision Systems
/s/ WILLIAM J. BELL Corporation and CSC Holdings, Inc. (Principal Financial
------------------------------------------- Officer of Cablevision Systems Corporation and CSC
William J. Bell Holdings, Inc.)
Executive Vice President, Financial Planning and
* Controller of Cablevision Systems Corporation and CSC
------------------------------------------- Holdings, Inc. (Principal Accounting Officer of
Andrew B. Rosengard Cablevision Systems Corporation and CSC Holdings, Inc.)
*
------------------------------------------- Chairman of the Board of Directors of Cablevision Systems
Charles F. Dolan Corporation and CSC Holdings, Inc.
------------------------------------------- Vice Chairman and Director of Cablevision Systems
Marc A. Lustgarten Corporation and CSC Holdings, Inc.
* Executive Vice President, General Counsel, Secretary and
------------------------------------------- Director of Cablevision Systems Corporation and CSC
Robert S. Lemle Holdings, Inc.
------------------------------------------- Senior Vice President and Director of Cablevision Systems
Sheila A. Mahony Corporation and CSC Holdings, Inc.
Senior Vice President, Chief Information Officer and
------------------------------------------- Director of Cablevision Systems Corporation and CSC
Thomas C. Dolan Holdings, Inc.
*
------------------------------------------- Director of Cablevision Systems Corporation and CSC
John Tatta Holdings, Inc.
------------------------------------------- Director of Cablevision Systems Corporation and CSC
Patrick F. Dolan Holdings, Inc.
*
------------------------------------------- Director of Cablevision Systems Corporation and CSC
Charles D. Ferris Holdings, Inc.
*
------------------------------------------- Director of Cablevision Systems Corporation and CSC
Richard H. Hochman Holdings, Inc.
</TABLE>
II-8
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------------------ ---------------------------------------------------------
<C> <S>
*
------------------------------------------- Director of Cablevision Systems Corporation and CSC
Victor Oristano Holdings, Inc.
*
------------------------------------------- Director of Cablevision Systems Corporation and CSC
Vincent Tese Holdings, Inc.
*
------------------------------------------- Director of Cablevision Systems Corporation and CSC
John C. Malone Holdings, Inc.
*
------------------------------------------- Director of Cablevision Systems Corporation and CSC
Leo J. Hindery, Jr. Holdings, Inc.
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By: /s/ WILLIAM J. BELL
-------------------------
William J. Bell
(as Attorney-in-Fact)
</TABLE>
II-9
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBITS PAGE
- --------- ---------
<C> <S> <C>
*1.1 --Form of Underwriting Agreement for Debt Securities.
*1.2 --Form of Underwriting Agreement for Preferred Stock.
*1.3 --Form of Underwriting Agreement for Preferred Securities.
4.1 --Certificate of Incorporation of Cablevision Systems Corporation (incorporated by reference to
Exhibit 3.1 to the Registration Statement on Form S-4 filed by Cablevision Systems
Corporation on January 20, 1998, File No. 333-44547 (the "Form S-4").
4.2 --Certificate of Incorporation of CSC Holdings, Inc. (incorporated by reference to Exhibits
3.1A(i) and 3.1A(ii) to CSC Holdings' Annual Report on Form 10-K for the year ended December
31, 1989).
4.2A --Certificate of Designations for the Series H Redeemable Exchangeable Preferred Stock of CSC
Holdings, Inc. (incorporated by reference to Exhibit 4.1C to CSC Holdings' Registration
Statement on Form S-4, File No. 33-63691).
4.2B --Certificate of Designations for the Series I Cumulative Convertible Exchangeable Preferred
Stock of CSC Holdings, Inc. (incorporated by reference to Exhibit 99.3 to CSC Holdings'
Current Report on Form 8-K filed November 7, 1995).
4.2C --Certificate of Designations for the Series M Redeemable Exchangeable Preferred Stock of CSC
Holdings, Inc. (incorporated by reference to Exhibit 4.1F to CSC Holdings' Registration
Statement on Form S-4, File No. 333-02527).
4.3 --By-laws of Cablevision Systems Corporation (incorporated by reference to Exhibit 3.2 to the
Form S-4).
4.4 --By-laws of CSC Holdings, Inc. (incorporated by reference to Exhibit 3.20 to CSC Holdings'
Registration Statement on Form S-4, File No. 33-62717).
4.5 --Senior Indenture (incorporated by reference to Exhibit 4.1 to CSC Holdings' Registration
Statement on Form S-3, File No. 333-57407).
4.6 --Subordinated Indenture (incorporated by reference to Exhibit 4.2 to CSC Holdings'
Registration Statement on Form S-3, File No. 333-57407).
4.7 --Form of Junior Subordinated Indenture.
4.8 --Form of Debt Security (included in the Senior Indenture, the Subordinated Indenture and the
Junior Subordinated Indenture).
*4.9 --Form of Certificate of Designations.
*4.10 --Form of Depositary Agreement.
*4.11 --Form of Depositary Receipt.
**4.12 --Certificate of Trust of CSC Capital I.
**4.13 --Certificate of Trust of CSC Capital II.
**4.14 --Certificate of Trust of CSC Capital III.
4.15 --Declaration of Trust of CSC Capital I.
4.16 --Declaration of Trust of CSC Capital II.
4.17 --Declaration of Trust of CSC Capital III.
4.18 --Form of Amended and Restated Declaration of Trust for each of CSC Capital I, II and III.
4.19 --Form of Preferred Security (included in the Form of Amended and Restated Declaration of Trust
for each of CSC Capital I, II and III).
4.20 --Form of Preferred Securities Guarantee.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS PAGE
- --------- ---------
<C> <S> <C>
4.21 --Form of Agreement as to Expenses and Liabilities.
5.1 --Opinion of Sullivan & Cromwell.
5.2 --Opinion of Morris, Nichols, Arsht & Tunnel.
8.1 --Opinion of Sullivan & Cromwell as to tax matters.
12.1 --Computation of Ratio of Earnings to Fixed Charges and to Fixed Charges and Preferred Stock
Dividends.
23.1 --Consents of Sullivan & Cromwell (included in Exhibit 5.1 and Exhibit 8.1).
23.2 --Consent of Morris, Nichols, Arsht & Tunnel (included in Exhibit 5.2).
23.3 --Consent of KPMG LLP.
**24.1 --Powers of Attorney.
25.1 --Form of T-1 Statement of Eligibility of the Senior Indenture Trustee.
25.2 --Form of T-1 Statement of Eligibility of the Subordinated Indenture Trustee.
25.3 --Form of T-1 Statement of Eligibility of the CSC Holdings, Inc. Junior Subordinated Indenture
Trustee.
25.4 --Form of T-1 Statement of Eligibility of the Cablevision Systems Corporation Junior
Subordinated Indenture Trustee.
25.5 --Form of T-1 Statement of Eligibility of the Property Trustee for the Amended and Restated
Trust Agreement of CSC Capital I.
25.6 --Form of T-1 Statement of Eligibility of the Property Trustee for the Amended and Restated
Trust Agreement of CSC Capital II.
25.7 --Form of T-1 Statement of Eligibility of the Property Trustee for the Amended and Restated
Trust Agreement of CSC Capital III.
25.8 --Form of T-1 Statement of Eligibility of the CSC Holdings, Inc. Preferred Securities Guarantee
Trustee under the Guarantee for the benefit of holders of Preferred Securities of CSC Capital
I.
25.9 --Form of T-1 Statement of Eligibility of the CSC Holdings, Inc. Preferred Securities Guarantee
Trustee under the Guarantee for the benefit of holders of Preferred Securities of CSC Capital
II.
25.10 --Form of T-1 Statement of Eligibility of the CSC Holdings, Inc. Preferred Securities Guarantee
Trustee under the Guarantee for the benefit of holders of Preferred Securities of CSC Capital
III.
25.11 --Form of T-1 Statement of Eligibility of the Cablevision Systems Corporation Preferred
Securities Guarantee Trustee under the Guarantee for the benefit of holders of Preferred
Securities of CSC Capital I.
25.12 --Form of T-1 Statement of Eligibility of the Cablevision Systems Corporation Preferred
Securities Guarantee Trustee under the Guarantee for the benefit of holders of Preferred
Securities of CSC Capital II.
25.13 --Form of T-1 Statement of Eligibility of the Cablevision Systems Corporation Preferred
Securities Guarantee Trustee under the Guarantee for the benefit of holders of Preferred
Securities of CSC Capital III.
</TABLE>
- ------------------------
* To be filed as an exhibit to a Current Report on Form 8-K.
** Previously filed.
<PAGE>
Exhibit 4.7
S&C Draft of March 26, 1999
================================================================================
CSC HOLDINGS, INC.
to
THE BANK OF NEW YORK,
as Trustee
------------------
JUNIOR SUBORDINATED INDENTURE
Dated as of April 1, 1999
------------------
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions....................................................1
SECTION 1.2. Compliance Certificate and Opinions...........................10
SECTION 1.3. Forms of Documents Delivered to Trustee.......................11
SECTION 1.4. Acts of Holders...............................................11
SECTION 1.5. Notices, Etc. to Trustee and Corporation......................13
SECTION 1.6. Notice to Holders; Waiver.....................................14
SECTION 1.7. Conflict with Trust Indenture Act.............................14
SECTION 1.8. Effect of Headings and Table of Contents......................14
SECTION 1.9. Successors and Assigns........................................14
SECTION 1.10. Separability Clause...........................................15
SECTION 1.11. Benefits of Indenture.........................................15
SECTION 1.12. Governing Law.................................................15
SECTION 1.13. Non-Business Days.............................................15
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally...............................................15
SECTION 2.2. Form of Face of Security......................................16
SECTION 2.3. Form of Reverse of Security...................................19
SECTION 2.4. Additional Provisions Required in Global Security.............22
SECTION 2.5. Form of Trustee's Certificate of Authentication...............22
ARTICLE III
THE SECURITIES
SECTION 3.1. Title and Terms...............................................22
SECTION 3.2. Denominations.................................................25
SECTION 3.3. Execution, Authentication, Delivery and Dating................25
SECTION 3.4. Temporary Securities..........................................27
SECTION 3.5. Global Securities.............................................27
SECTION 3.6. Registration, Transfer and Exchange Generally.................29
SECTION 3.7. Mutilated, Destroyed, Lost and Stolen Securities..............30
SECTION 3.8. Payment of Interest and Additional Interest; Interest
Rights Preserved .............................................30
-i-
<PAGE>
Page
SECTION 3.9. Persons Deemed Owners.........................................32
SECTION 3.10. Cancellation..................................................32
SECTION 3.11. Computation of Interest.......................................32
SECTION 3.12. Deferrals of Interest Payment Dates...........................32
SECTION 3.13. Right of Set-Off..............................................34
SECTION 3.14. Agreed Tax Treatment..........................................34
SECTION 3.15. Shortening and Extension of Stated Maturity...................34
SECTION 3.16. CUSIP Numbers.................................................34
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.......................35
SECTION 4.2. Application of Trust Money....................................36
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default.............................................36
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment............37
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee ......................................................38
SECTION 5.4. Trustee May File Proofs of Claim..............................39
SECTION 5.5. Trustee May Enforce Claim Without Possession of Securities....40
SECTION 5.6. Application of Money Collected................................40
SECTION 5.7. Limitation on Suits...........................................40
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest; Direct Action by Holders of Capital Securities..41
SECTION 5.9. Restoration of Rights and Remedies............................41
SECTION 5.10. Rights and Remedies Cumulative................................42
SECTION 5.11. Delay or Omission Not Waiver..................................42
SECTION 5.12. Control by Holders............................................42
SECTION 5.13. Waiver of Past Defaults.......................................43
SECTION 5.14. Undertaking for Costs.........................................43
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.......................43
-ii-
<PAGE>
Page
ARTICLE VI
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities............................44
SECTION 6.2. Notice of Defaults.............................................45
SECTION 6.3. Certain Rights of Trustee......................................45
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities.........46
SECTION 6.5. May Hold Securities............................................47
SECTION 6.6. Money Held in Trust............................................47
SECTION 6.7. Compensation and Reimbursement.................................47
SECTION 6.8. Disqualification; Conflicting Interests........................48
SECTION 6.9. Corporate Trustee Required; Eligibility........................48
SECTION 6.10. Resignation and Removal; Appointment of Successor..............48
SECTION 6.11. Acceptance of Appointment by Successor.........................50
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business....51
SECTION 6.13. Preferential Collection of Claims Against Corporation..........51
SECTION 6.14. Appointment of Authenticating Agent............................51
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND CORPORATION
SECTION 7.1. Corporation to Furnish Trustee Names and Addresses of Holders..53
SECTION 7.2. Preservation of Information, Communications to Holders.........53
SECTION 7.3. Reports by Trustee.............................................53
SECTION 7.4. Reports by Corporation.........................................54
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Corporation May Consolidate, Etc., Only on Certain Terms.......54
SECTION 8.2. Successor Corporation Substituted..............................55
-iii-
<PAGE>
Page
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures without Consent of Holders............56
SECTION 9.2. Supplemental Indentures with Consent of Holders...............57
SECTION 9.3. Execution of Supplemental Indentures..........................58
SECTION 9.4. Effect of Supplemental Indentures.............................58
SECTION 9.5. Conformity with Trust Indenture Act...........................58
SECTION 9.6. Reference in Securities to Supplemental Indentures............58
ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest....................59
SECTION 10.2. Maintenance of Office or Agency...............................59
SECTION 10.3. Money for Security Payments to be Held in Trust...............59
SECTION 10.4. Statement as to Compliance....................................61
SECTION 10.5. Waiver of Certain Covenants...................................61
SECTION 10.6. Additional Sums...............................................61
SECTION 10.7. Additional Covenants..........................................62
SECTION 10.8. Original Issue Discount.......................................63
SECTION 10.9. Statement by Officers as to Default...........................63
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1. Applicability of This Article.................................63
SECTION 11.2. Election to Redeem; Notice to Trustee.........................63
SECTION 11.3. Selection of Securities to be Redeemed........................64
SECTION 11.4. Notice of Redemption..........................................64
SECTION 11.5. Deposit of Redemption Price...................................65
SECTION 11.6. Payment of Securities Called for Redemption...................65
SECTION 11.7. Right of Redemption of Securities Initially Issued to
an Issuer Trust ..............................................66
-iv-
<PAGE>
Page
ARTICLE XII
SINKING FUNDS
SECTION 12.1. Applicability of Article.......................................66
SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities..........67
SECTION 12.3. Redemption of Securities for Sinking Fund......................67
ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1. Securities Subordinate to Senior Indebtedness..................68
SECTION 13.2. No Payment When Senior Indebtedness in Default; Payment
Over of Proceeds Upon Dissolution, Etc.........................69
SECTION 13.3. Payment Permitted If No Default................................70
SECTION 13.4. Subrogation to Rights of Holders of Senior Indebtedness........70
SECTION 13.5. Provisions Solely to Define Relative Rights....................71
SECTION 13.6. Trustee to Effectuate Subordination............................71
SECTION 13.7. No Waiver of Subordination Provisions..........................71
SECTION 13.8. Notice to Trustee..............................................72
SECTION 13.9. Reliance on Judicial Order or Certificate of Liquidating Agent.72
SECTION 13.10. Trustee Not Fiduciary for Holders of Senior Indebtedness.......73
SECTION 13.11. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights ..............................73
SECTION 13.12. Article Applicable to Paying Agents............................73
-v-
<PAGE>
JUNIOR SUBORDINATED INDENTURE, dated as of April 1, 1999, between CSC
HOLDINGS, INC., a Delaware corporation (the "Corporation"), having its principal
office at 1111 Stewart Avenue, Bethpage, New York 11714, and THE BANK OF NEW
YORK, a New York banking corporation, as Trustee (the "Trustee").
RECITALS OF THE CORPORATION
WHEREAS, the Corporation has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
junior subordinated debt securities in series (hereinafter called the
"Securities") of substantially the tenor hereinafter provided, including
Securities issued to evidence loans made to the Corporation of the proceeds from
the issuance from time to time by one or more business trusts (each an "Issuer
Trust") of undivided preferred beneficial interests in the assets of such Issuer
Trusts (the "Capital Securities") and undivided common beneficial interests in
the assets of such Issuer Trusts (the "Common Securities" and, collectively with
the Capital Securities, the "Trust Securities"), and to provide the terms and
conditions upon which the Securities are to be authenticated, issued and
delivered; and
WHEREAS, all things necessary to make this Indenture a valid agreement of
the Corporation, in accordance with its terms, have been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) All other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) The words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation";
<PAGE>
(4) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(5) Whenever the context may require, any gender shall be deemed to
include the others;
(6) Unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture; and
(7) The words "hereby", "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act" when used with respect to any Holder has the meaning specified in
Section 1.4.
"Additional Interest" means the interest, if any, that shall accrue on any
interest on the Securities of any series the payment of which has not been made
on the applicable Interest Payment Date and which shall accrue at the rate per
annum specified or determined as specified in such Security.
"Additional Sums" has the meaning specified in Section 10.6.
"Additional Taxes" means, in the case of Securities of a series initially
issued to an Issuer Trust, taxes, duties or other governmental charges imposed
on the Issuer Trust as a result of a Tax Event (which, for the sake of clarity,
does not include amounts required to be deducted or withheld by the Issuer Trust
from payments made by the Issuer Trust to or for the benefit of the Holder of,
or any person that acquires a beneficial interest in, the Securities).
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Global Security or beneficial interest therein, the rules and
procedures of the Depositary for such Security, in each case to the extent
applicable to such transaction and as in effect from time to time.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Bank Credit Agreement" means the Sixth Amended and Restated Credit
Agreement, dated as of May 28, 1998, among the Company, the Restricted
Subsidiaries party thereto, the banks party
-2-
<PAGE>
thereto, Toronto Dominion (Texas), Inc., as Arranging Agent and as
Administrative Agent, The Bank of New York, The Bank of Nova Scotia, The
Canadian Imperial Bank of Commerce, NationsBank, N.A. and The Chase Manhattan
Bank, as Managing Agents, Bank of Montreal, Chicago Branch, Barclays Bank plc,
Fleet Bank, N.A. and Royal Bank of Canada, as Agents, Banque Paribas, Credit
Lyonnais, BankBoston N.A., The First National Bank of Chicago, Mellon Bank, N.A.
and Societe Generale, New York Branch, as Co-Agents, and The Canadian Imperial
Bank of Commerce, The Chase Manhattan Bank and NationsBank, N.A., as
Co-Syndication Agents and the First Amended and Restated Credit Agreement, dated
as of May 28, 1998, by and among Cablevision MFR, Inc., the Guarantors party
thereto, the Lenders from time to time party thereto and Toronto Dominion Bank
(Texas), Inc., as Arranging Agent and as Administrative Agent, The Bank of New
York, The Bank of Nova Scotia, The Canadian Imperial Bank of Commerce,
NationsBank, N.A. and The Chase Manhattan Bank, as Managing Agents, Bank of
Montreal, Chicago Branch, Barclays Bank plc, Fleet Bank, N.A. and Royal Bank of
Canada, as Agents, Banque Paribas, Credit Lyonnais, Bank Boston N.A., The First
National Bank of Chicago, Mellon Bank, N.A. and Societe Generale, New York
Branch, as Co-Agents, and The Bank of New York and The Bank of Nova Scotia, as
Co-Syndication Agents, both agreements as in effect on the date hereof and as
such agreements may be amended or replaced from time to time.
"Bankruptcy Code" means Title 11 of the United States Code or any
successor statute thereto, in each case as amended from time to time.
"Board of Directors" means the board of directors of the Corporation or
the Executive Committee of the board of directors of the Corporation (or any
other committee of the board of directors of the Corporation performing similar
functions) or a committee designated by the board of directors of the
Corporation (or such committee), comprised of two or more members of the board
of directors of the Corporation or officers of the Corporation, or both.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Corporation to have been duly adopted by the
Board of Directors, or officers of the Corporation to which authority to act on
behalf of the Board of Directors has been delegated, and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed, or (iii) a day on which the
Corporate Trust Office of the Trustee, or, with respect to the Securities of a
series initially issued to an Issuer Trust for so long as such Securities are
held by such Issuer Trust, the "Corporate Trust Office" (as defined in the
related Trust Agreement) of the Property Trustee or the Delaware Trustee under
the related Trust Agreement, is closed for business.
"Capital Securities" has the meaning specified in the first recital of
this Indenture.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
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"Common Securities" has the meaning specified in the first recital of this
Indenture.
"Common Stock" means the common stock, par value $0.01 per share, of the
Corporation.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of this Indenture is located at 101
Barclay Street, Floor 21 West, New York, New York 10286, Attention: Corporate
Trust Administration.
"corporation" includes a corporation, association, company, limited
liability company, joint-stock company or business trust.
"Corporation" means the Person named as the "Corporation" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Corporation" shall mean such successor corporation.
"Corporation Request" and "Corporation Order" mean, respectively, the
written request or order signed in the name of the Corporation by its Chairman
of the Board of Directors, a Vice Chairman, its Chief Executive Officer, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Debt" means, with respect to any Person, without duplication, any
liability, whether or not contingent, (i) in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereto), but excluding
reimbursement obligations under any surety bond, (ii) representing the balance
deferred and unpaid of the purchase price of any property (including pursuant to
capitalized lease obligations), except any such balance that constitutes a trade
payable, (iii) under Interest Swap Agreements (as defined in the Bank Credit
Agreement) entered into pursuant to the Bank Credit Agreement, (iv) under any
other agreement related to the fixing of interest rates on any Indebtedness,
such as an interest swap, cap or collar agreement (if and to the extent any of
the foregoing liabilities would appear as a liability upon a balance sheet of
such Person prepared on a consolidated basis in accordance with GAAP) or (v)
guarantees of items of other Persons which would be included within this
definition for such other Persons (whether or not the guarantee would appear on
such balance sheet). "Debt" does not include (i) Disqualified Stock, (ii) any
liability for federal, state or other taxes owed or owing by such Person or
(iii) any accounts payable or other liability to trade creditors arising in the
ordinary course of business (including guarantees thereof or instruments
evidencing such liabilities).
"Defaulted Interest" has the meaning specified in Section 3.8.
"Delaware Trustee" means, with respect to any Issuer Trust, the Person
identified as the "Delaware Trustee" in the related Trust Agreement, solely in
its capacity as Delaware Trustee of such Issuer Trust under such Trust Agreement
and not in its individual capacity, or its successor in interest in such
capacity, or any successor Delaware trustee appointed as therein provided.
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"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Corporation pursuant to Section 3.1 with
respect to such series (or any successor thereto).
"Discount Security" means any security that provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.
"Disqualified Stock" means, with respect to any series of Securities, any
capital stock of the Corporation or any Restricted Subsidiary which, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the maturity date of such Securities.
"Distributions," with respect to the Trust Securities issued by an Issuer
Trust, means amounts payable in respect of such Trust Securities as provided in
the related Trust Agreement and referred to therein as "Distributions."
"Dollar" or "$" means the currency of the United States of America that,
as at the time of payment, is legal tender for the payment of public and private
debts.
"Event of Default", unless otherwise specified with respect to a series of
Securities as contemplated by Section 3.1, has the meaning specified in Article
V.
"Exchange Act" means the Securities Exchange Act of 1934 or any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.4.
"Extension Period" has the meaning specified in Section 3.12.
"Global Security" means a Security in the form prescribed in Section 2.4
evidencing all or part of a series of Securities, issued to the Depositary or
its nominee for such series, and registered in the name of such Depositary or
its nominee.
"Guarantee Agreement" means, with respect to any Issuer Trust, the
Guarantee Agreement executed by the Corporation for the benefit of the Holders
of the Capital Securities issued by such Issuer Trust as modified, amended or
supplemented from time to time.
"Holder" means a Person in whose name a Security is registered in the
Securities Register.
"Indebtedness" with respect to any Person, means the Debt of such Person;
provided that, for purposes of the definition of "Indebtedness" (including the
term "Debt" to the extent incorporated in such definition), the term "guarantee"
shall not be interpreted to extend to a guarantee under which recourse is
limited to the capital stock of an entity that is not a Restricted Subsidiary.
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"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of each particular series of Securities established as
contemplated by Section 3.1.
"Interest Payment Date" means, as to each series of Securities, the Stated
Maturity of an installment of interest on such Securities.
"Investment Company Act" means the Investment Company Act of 1940 or any
successor statute thereto, in each case as amended from time to time.
"Investment Company Act Event" means the receipt by an Issuer Trust of an
Opinion of Counsel (as defined in the relevant Trust Agreement) experienced in
such matters to the effect that, as a result of the occurrence of a change
(including any announced prospective change) in law or regulation or a written
change (including any announced prospective change) in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, there is more than an insubstantial risk that
such Issuer Trust is or will be considered an "investment company" that is
required to be registered under the Investment Company Act, which change or
prospective change becomes effective or would become effective, as the case may
be, on or after the date of the issuance of the Capital Securities of such
Issuer Trust.
"Issuer Trust" has the meaning specified in the first recital of this
Indenture.
"Maturity" when used with respect to any Security means the date on which
the principal of such Security or any installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 5.1(3).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman, the Chief Executive Officer, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Corporation and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel experienced in
matters of the kind described in the definition of Tax Event, who may be counsel
for or an employee of the Corporation or any Affiliate of the Corporation.
"Original Issue Date" means the date of issuance specified as such in each
Security.
"Outstanding" means, when used in reference to any Securities, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
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(ii) Securities for whose payment money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent in trust
for the Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or that have been paid
pursuant to Section 3.7, unless proof satisfactory to the Trustee is
presented that any such Securities are held by Holders in whose hands such
Securities are valid, binding and legal obligations of the Corporation;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Corporation or any other obligor upon the Securities or any Affiliate of
the Corporation or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities that a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities so owned that
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Corporation or
any other obligor upon the Securities or any Affiliate of the Corporation or
such other obligor. Upon the written request of the Trustee, the Corporation
shall furnish to the Trustee promptly an Officers' Certificate listing and
identifying all Securities, if any, known by the Corporation to be owned or held
by or for the account of the Corporation, or any other obligor on the Securities
or any Affiliate of the Corporation or such obligor, and subject to the
provisions of Section 6.1, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination. Notwithstanding anything herein to the
contrary, Securities of any series initially issued to an Issuer Trust that are
owned by such Issuer Trust shall be deemed to be Outstanding notwithstanding the
ownership by the Corporation or an Affiliate of any beneficial interest in such
Issuer Trust.
"Paying Agent" means the Trustee or any Person authorized by the
Corporation to pay the principal of (or premium, if any) or interest on, or
other amounts in respect of, any Securities on behalf of the Corporation.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Place of Payment" means, with respect to the Securities of any series,
the place or places where the principal of (and premium, if any) and interest on
the Securities of such series are payable pursuant to Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security. For the purposes of this definition, any security
authenticated and delivered under Section 3.7 in lieu of a mutilated, destroyed,
lost or stolen Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
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"Proceeding" has the meaning specified in Section 13.2.
"Property Trustee" means, with respect to any Issuer Trust, the Person
identified as the "Property Trustee" in the related Trust Agreement, solely in
its capacity as Property Trustee of such Issuer Trust under such Trust Agreement
and not in its individual capacity, or its successor in interest in such
capacity, or any successor property trustee appointed as therein provided.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture or the
terms of such Security.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date with respect to the Securities of a series means, unless otherwise provided
pursuant to Section 3.1 with respect to Securities of such series, the date that
is fifteen days next preceding such Interest Payment Date (whether or not a
Business Day).
"Responsible Officer", when used with respect to the Trustee, means any
officer assigned to the Corporate Trust Office, including any vice president,
assistant vice president, assistant treasurer, any assistant secretary or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" means any Subsidiary, whether existing on the date
hereof or created subsequent hereto, designated from time to time by the Company
as a "Restricted Subsidiary" and the initial Restricted Subsidiaries designated
by the Company are set forth on Exhibit A; provided, however, that no Subsidiary
that is not a Securitization Subsidiary (as defined in the Indenture, dated as
of July 1, 1998, between CSC Holdings, Inc. and The Bank of New York, as Trustee
(the "Senior Debt Indenture")) can be or remain so designated unless (i) at
least 67% of each of the total equity interest and the voting control of such
Subsidiary is owned, directly or indirectly, by the Company or another
Restricted Subsidiary and (ii) such Subsidiary is not restricted, pursuant to
the terms of any loan agreement, note, indenture or other evidence of
indebtedness, from (a) paying dividends or making any distribution on such
Subsidiary's capital stock or other equity securities or paying any Indebtedness
owed to the Company or to any Restricted Subsidiary, (b) making any loans or
advances to the Company or any Restricted Subsidiary or (c) transferring any of
its properties or assets to the Company or any Restricted Subsidiary (it being
understood that a financial covenant any of the components of which are directly
impacted by the taking of the action (e.g., the payment of a dividend) itself
(such as a minimum net worth test) would be deemed to be a restriction on the
foregoing actions, while a financial covenant none of the components of which
are directly impacted by the taking of the action (e.g., the payment of a
dividend) itself (such as a debt to cash flow test) would not be deemed to be a
restriction on the foregoing actions); and provided further that the Company
may, from time to time, redesignate any Restricted Subsidiary as an Unrestricted
Subsidiary in accordance with Section 1010 of the Senior Debt Indenture.
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"Securities" or "Security" means any debt securities or debt security, as
the case may be, authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933 or any successor statute
thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.6.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Corporation whether
or not such claim for post-petition interest is allowed in such proceeding), on
Debt of the Corporation, whether incurred on or prior to the date of this
Indenture or thereafter incurred, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such obligations are not superior in right of payment to the Securities or
to other Debt that is pari passu with, or subordinated to, the Securities,
provided, however, that Senior Indebtedness shall not be deemed to include (a)
any Debt of the Corporation that, when incurred and without respect to any
election under Section 1111(b) of the Bankruptcy Reform Act of 1978, was without
recourse to the Corporation, (b) any Debt of the Corporation to any of its
Subsidiaries, (c) Debt to any employee of the Corporation, (d) any Securities,
(e) trade accounts payable of the Corporation, and (f) accrued liabilities
arising in the ordinary course of business of the Corporation.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.8.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof (or premium, if any) or interest (including any
Additional Interest) thereon, means the date specified pursuant to the terms of
such Security as the fixed date on which the principal of such Security or such
installment of principal (or premium, if any) or interest (including any
Additional Interest) is due and payable, as such date may, in the case of the
stated maturity of the principal on any security, be shortened or extended as
provided pursuant to the terms of such Security and this Indenture and, in the
case of any installment of interest, subject to the deferral of any such date in
the case of any Extension Period.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Corporation or by one or
more other Subsidiaries, or by the Corporation and one or more other
Subsidiaries. For purposes of this definition, "voting stock" means stock that
ordinarily has voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power by reason of
any contingency.
"Successor Security" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.7 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
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"Tax Event" means the receipt by an Issuer Trust of an Opinion of Counsel
to the effect that, as a result of (a) any amendment to, clarification of, or
change (including any announced prospective change) in, the laws or any
regulations thereunder of the United States or any political subdivision or
taxing authority thereof or therein, or (b) any judicial decision or any
official administrative pronouncement (including any private letter ruling,
technical advice memorandum or field service advice) or regulatory procedure (an
"Administrative Action"), regardless of whether such judicial decision or
Administrative Action is issued to or in connection with a proceeding involving
the Corporation or the Issuer Trust and whether or not subject to review or
appeal, which amendment, change, Administrative Action or decision is enacted,
promulgated or announced, in each case, on or after the date hereof, there is
more than an insubstantial risk that (i) the Issuer Trust is, or will be within
90 days of the date of such opinion, subject to United States Federal income tax
with respect to income received or accrued on the Junior Subordinated
Debentures, (ii) interest payable by the Corporation or original issue discount
accruing on the Junior Subordinated Debentures is not, or within 90 days of the
date of such opinion, will not be, deductible by the Corporation, in whole or in
part, for United States Federal income tax purposes, or (iii) the Issuer Trust
is, or will be within 90 days of the date of such opinion, subject to more than
a de minimis amount of other taxes, duties or other governmental charges.
"Trust Agreement" means, with respect to any Issuer Trust, the trust
agreement or other governing instrument of such Issuer Trust.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument, solely in its capacity as such and not in its individual
capacity, until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder and, if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C.
ss.ss. 77aaa-77bbb), as amended and as in effect on the date as of this
Indenture, except as provided in Section 9.5.
"Trust Securities" has the meaning specified in the first recital of this
Indenture.
"Vice President," when used with respect to the Corporation, means any
duly appointed vice president, whether or not designated by a number or a word
or words added before or after the title "vice president."
SECTION 1.2. Compliance Certificate and Opinions.
Upon any application or request by the Corporation to the Trustee to take
any action under any provision of this Indenture, the Corporation shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent
(including covenants compliance with which constitutes a condition precedent),
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent (including covenants compliance with which
constitutes a condition precedent), if any, have been complied with, except that
in the case of any such application or request as to which the furnishing of
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such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than the certificates provided
pursuant to Section 10.4) shall include:
(1) a statement by each individual signing such certificate or opinion
that such individual has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions of such individual contained
in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he or she has
made such examination or investigation as is necessary to enable him or her 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, in the opinion of such individual, such
condition or covenant has been complied with.
SECTION 1.3. Forms of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Corporation may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to matters upon which his or her certificate or opinion is based
are erroneous. Any such certificate or Opinion of Counsel may be based, insofar
as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Corporation stating that the
information with respect to such factual matters is in the possession of the
Corporation, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions, or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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SECTION 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given to or taken by Holders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments is or are delivered to the
Trustee, and, where it is hereby expressly required, to the Corporation. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and
the Corporation, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him or her the execution thereof.
Where such execution is by a Person acting in other than his or her individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner that the Trustee deems sufficient and in
accordance with such reasonable rules as the Trustee may determine.
(d) The ownership of Securities shall be proved by the Securities
Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done
or suffered to be done by the Trustee or the Corporation in reliance thereon,
whether or not notation of such action is made upon such Security.
(f) The Corporation may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Corporation may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next succeeding paragraph.
If any record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date, provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
(as defined below) by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Corporation from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon
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the record date previously set shall automatically and with no action by any
Person be cancelled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant series on the date
such action is taken. Promptly after any record date is set pursuant to this
paragraph, the Corporation, at its own expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration Date
to be given to the Trustee in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 1.6.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 5.2, (iii) any request to institute
proceedings referred to in Section 5.7(2), or (iv) any direction referred to in
Section 5.12, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date, provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Corporation's expense, shall
cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Corporation in writing and to each
Holder of Securities of the relevant series in the manner set forth in Section
1.6.
With respect to any record date set pursuant to this Section, the party
hereto that sets such record date may designate any day as the "Expiration Date"
and from time to time may change the Expiration Date to any earlier or later
day, provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 1.6, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto that set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
(g) Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
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SECTION 1.5. Notices, Etc. to Trustee and Corporation.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, any holder of Capital Securities or the
Corporation shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing (which may be via facsimile) to or with the
Trustee at its Corporate Trust office, or
(2) the Corporation by the Trustee, any Holder or any holder of Capital
Securities shall be sufficient for every purpose (except as otherwise provided
in Section 5.1) hereunder if in writing and mailed, first class, postage
prepaid, to the Corporation addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Corporation.
SECTION 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to each Holder affected
by such event, at the address of such Holder as it appears in the Securities
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. If, by reason of the suspension
of or irregularities in regular mail service or for any other reason, it shall
be impossible or impracticable to mail notice of any event to Holders when said
notice is required to be given pursuant to any provision of this Indenture or of
the relevant Securities, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 1.7. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture
Act through operation of Section 318(c) thereof, such imposed duties shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
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SECTION 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Corporation shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
If any provision in this Indenture or in the Securities shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors and
assigns, the holders of Senior Indebtedness, the Holders of the Securities and,
to the extent expressly provided in Sections 5.1, 5.2, 5.8, 5.9, 5.11, 5.13, 9.1
and 9.2, the holders of Capital Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 1.13. Non-Business Days.
If any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day, then (notwithstanding any other provision
of this Indenture or the Securities) payment of interest or principal (and
premium, if any) or other amounts in respect of such Security need not be made
on such date, but may be made on the next succeeding Business Day (and no
interest shall accrue in respect of the amounts whose payment is so delayed for
the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, until such next succeeding Business Day) except
that, if such Business Day falls in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day (in each case
with the same force and effect as if made on the Interest Payment Date or
Redemption Date or at the Stated Maturity).
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ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally.
The Securities of each series and the Trustee's certificate of
authentication shall be in substantially the forms set forth in this Article, or
in such other form or forms as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with applicable tax laws or the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Corporation and delivered to the Trustee at or prior to the delivery of the
Corporation Order contemplated by Section 3.3 with respect to the authentication
and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods, if required by any securities
exchange on which the Securities may be listed, on a steel engraved border or
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such securities.
SECTION 2.2. Form of Face of Security.
CSC HOLDINGS, INC.
[Title of Security]
CUSIP No. _________
No. $
CSC HOLDINGS, INC., a corporation organized and existing under the laws of
Delaware (hereinafter called the "Corporation", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _______________, or registered assigns, the
principal sum of __________ Dollars on __________ __, [if the Security is a
Global Security, then insert, if applicable--, or such other principal amount
represented hereby as may be set forth in the records of the Securities
Registrar hereinafter referred to in accordance with the Indenture,] [; provided
that the Corporation may shorten the Stated Maturity of the principal of this
Security to a date not earlier than at any time on one or more occasions,
subject to certain conditions specified in Section 3.15 of the Indenture. The
Corporation further promises to pay interest on said principal sum from
________, __ or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, quarterly [if applicable, insert--(subject to
deferral as set forth herein)] in arrears on [insert applicable Interest Payment
Dates] of each year, commencing ________, _____, at the rate of ____% per annum,
[if applicable insert--together with Additional Sums, if any, as provided in
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Section 10.6 of the Indenture] until the principal hereof is paid or duly
provided for or made available for payment [if applicable, insert-- ; provided
that any overdue principal, premium or Additional Sums and any overdue
installment of interest shall bear Additional Interest at the rate of ___% per
annum (to the extent that the payment of such interest shall be legally
enforceable), compounded quarterly, from the dates such amounts are due until
they are paid or made available for payment, and such interest shall be payable
on demand]. The amount of interest payable for any period less than a full
interest period shall be computed on the basis of a 360-day year of twelve
30-day months and the actual days elapsed in a partial month in such period. The
amount of interest payable for any full interest period shall be computed by
dividing the applicable rate per annum by [four]. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest installment [if applicable insert--,
which shall be the [____________ or ____________], as the case may be, next
preceding such Interest Payment Date]. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.
[If applicable, insert--So long as no Event of Default has occurred and is
continuing, the Corporation shall have the right, at any time during the term of
this Security, from time to time to defer the payment of interest on this
Security for up to _________ consecutive quarterly interest payment periods
with respect to each deferral period (each an "Extension Period")
[If applicable, insert--, during which Extension Periods the Corporation shall
have the right to make partial payments of interest on any Interest Payment
Date, and] at the end of which the Corporation shall pay all interest then
accrued and unpaid including any Additional Interest, as provided below;
provided, however, that no Extension Period shall extend beyond the Stated
Maturity of the principal of this Security [If Stated Maturity can be shortened
or extended, insert--, as then in effect,] and no such Extension Period may
end on a date other than an Interest Payment Date; and provided, further,
however, that during any such Extension Period, the Corporation shall not (i)
declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the
Corporation's capital stock, or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Corporation that rank pari passu in all respects with or
junior in interest to this Security (other than (a) repurchases, redemptions
or other acquisitions of shares of capital stock of the Corporation in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more employees, officers,
directors or consultants, in connection with a dividend reinvestment or
stockholder stock purchase plan or in connection with the issuance of capital
stock of the Corporation (or securities convertible into or exercisable for
such capital stock) as consideration in an acquisition transaction entered
into prior to the applicable Extension Period, (b) as a result of an exchange
or conversion of any class or series of the Corporation's capital stock (or
any capital stock of a Subsidiary of the Corporation) for any class or series
of the Corporation's capital stock or of any class or series of the
Corporation's indebtedness for any class or series of the Corporation's
capital stock, (c) the purchase of fractional interests in shares
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of the Corporation's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged, or (d) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks pari passu with or junior to such stock).
Prior to the termination of any such Extension Period, the Corporation may
further defer the payment of interest, provided that no Extension Period
shall exceed _________ consecutive quarterly interest payment periods, extend
beyond the Stated Maturity of the principal of this Security or end on a date
other than an Interest Payment Date. Upon the termination of any such
Extension Period and upon the payment of all accrued and unpaid interest and
any Additional Interest then due on any Interest Payment Date, the
Corporation may elect to begin a new Extension Period, subject to the above
conditions. No interest shall be due and payable during an Extension Period,
except at the end thereof, but each installment of interest that would
otherwise have been due and payable during such Extension shall bear
Additional Interest (to the extent that the payment of such interest shall be
legally enforceable) at the rate of ____% per annum, compounded quarterly and
calculated as set forth in the first paragraph of this Security, from the
dates on which amounts would otherwise have been due and payable until paid
or made available for payment. The Corporation shall give the Holder of this
Security and the Trustee notice of its election to begin any Extension Period
at least one Business Day prior to the next succeeding Interest Payment Date
on which interest on this Security would be payable but for such deferral
[if applicable, insert--or so long as such Securities are held by [insert name
of applicable Issuer Trust], at least one Business Day prior to the earlier
of (i) the next succeeding date on which Distributions on the Capital
Securities of such Issuer Trust would be payable but for such deferral, and
(ii) the date on which the Property Trustee of such Issuer Trust is required
to give notice to holders of such Capital Securities of the record date or
the date such Distributions are payable].
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Corporation maintained for
that purpose in the [insert Place of Payment], in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts [if applicable, insert--; provided, however, that at
the option of the Corporation payment of interest may be made (i) by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Securities Register, or (ii) by wire transfer in immediately
available funds at such place and to such account as may be designated by the
Person entitled thereto as specified in the Securities Register]. If any
interest, principal or other amount is payable on a day that is not a Business
Day, the payment may be made on the next succeeding Business Day unless that
business day is in a different calendar year, in which case the payment may be
made on the next preceding Business Day. Each payment made on the next
succeeding or preceding Business Day as described above may be made with the
same force and effect as if made on the day on which the payment is originally
payable.
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such actions as
may be necessary or appropriate to effectuate the subordination so provided, and
(c) appoints the Trustee his or her attorney-in-fact for any and all such
purposes. Each Holder hereof, by his or her acceptance hereof,
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waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly
executed.
CSC HOLDINGS, INC.
By:
------------------------------
Name:
Title:
Attest:
- ---------------------------------
[Secretary or Assistant Secretary]
SECTION 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Corporation (herein called the "Securities"), issued and to be issued in one or
more series under the Junior Subordinated Indenture, dated as of ___ __,___
(herein called the "Indenture"), between the Corporation and The Bank of New
York , as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the
Corporation, the Trustee, the holders of Senior Indebtedness and the Holders of
the Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert--, limited in aggregate principal amount
to $______].
All terms used in this Security that are defined in the Indenture [if
applicable, insert--or in the Amended and Restated Trust Agreement, dated as of
_________, 199_ (as modified, amended or supplemented from time to time, the
"Trust Agreement"), relating to [insert name of Issuer Trust] (the "Issuer
Trust") among the Corporation, as Depositor, the Trustees named therein and the
Holders from time to time of the Trust Securities issued pursuant thereto, shall
have the meanings assigned to them in the Indenture [if applicable, insert--or
the Trust Agreement, as the case may be].
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[If applicable, insert--The Corporation may at any time, at its option, on
or after _________, ____, and subject to the terms and conditions of Article XI
of the Indenture, redeem this Security in whole at any time or in part from time
to time, at [if applicable, insert-- the following Redemption Prices (expressed
as percentages of the principal amount hereof): If redeemed during the 12-month
period beginning _____________,
Redemption
Year Price
---- -----------
and thereafter at a Redemption Price equal to 100% of the principal amount
hereof, together, in the case of any such redemption, with accrued interest [if
applicable, insert--, including any Additional Interest,] to but excluding the
date fixed for redemption,] [a Redemption Price equal to 100% of the principal
amount hereof, together, in the case of any such redemption, with accrued
interest [if applicable, insert--, including any Additional Interest,] to but
excluding the date fixed for redemption.]
[If applicable, insert--In addition, upon the occurrence and during the
continuation of a Tax Event or an Investment Company Event in respect of the
Issuer Trust, the Corporation may, at its option, at any time within 90 days of
the occurrence and during the continuation of such Tax Event or Investment
Company Event, as the case may be redeem this Security, in whole but not in
part, subject to the terms and conditions of Article XI of the Indenture, at a
redemption price equal to [insert formula].
[If the Security is subject to redemption of any kind, insert--In the
event of redemption of this Security in part only, a new Security or Securities
of this series for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Corporation with
certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Corporation and the Trustee at any time to enter into a supplemental indenture
or indentures for the purpose of modifying in any manner the rights and
obligations of the Corporation and of the Holders of the Securities, with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series to be affected by such supplemental
indenture. The Indenture also contains provisions permitting Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Corporation with certain provisions of the Indenture
and certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
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[If the Security is not a Discount Security, insert--As provided in and
subject to the provisions of the Indenture, if an Event of Default with respect
to the Securities of this series at the time Outstanding occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities of this
series may declare the principal amount of all the Securities of this series to
be due and payable immediately, by a notice in writing to the Corporation (and
to the Trustee if given by Holders) [if applicable, insert--, provided that, if
upon an Event of Default, the Trustee or such Holders fail to declare the
principal of all the Outstanding Securities of this series to be immediately due
and payable, the holders of at least 25% in aggregate Liquidation Amount of the
Capital Securities then Outstanding shall have the right to make such
declaration by a notice in writing to the Corporation and the Trustee]; and upon
any such declaration the principal amount of and the accrued interest (including
any Additional Interest) on all the Securities of this series shall become
immediately due and payable, provided that the payment of principal and interest
(including any Additional Interest) on such Securities shall remain subordinated
to the extent provided in Article XIII of the Indenture.]
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Corporation, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest [insert if applicable--including any Additional Interest)] on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Securities
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Corporation maintained under Section 10.2 of the
Indenture for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Corporation and the
Securities Registrar duly executed by, the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Securities of
this series, of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $________ and any integral multiple of $____________
in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Corporation, the Trustee nor any such agent shall be affected by notice to the
contrary.
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The Corporation and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that for United States Federal, state and local
tax purposes it is intended that this Security constitute indebtedness.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
SECTION 2.4. Additional Provisions Required in Global Security.
Unless otherwise specified as contemplated by Section 3.1, any Global
Security issued hereunder shall, in addition to the provisions contained in
Sections 2.2 and 2.3, bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
SECTION 2.5. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK,
as Trustee
By:
-----------------------------
Authorized signatory
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ARTICLE III
THE SECURITIES
SECTION 3.1. Title and Terms.
The aggregate principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 3.3,
set forth or determined in the manner provided in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of a series:
(a) the title of the securities of such series (including CUSIP
Numbers), which shall distinguish the Securities of the series from all
other Securities;
(b) the limit, if any, upon the aggregate principal amount of the
Securities of such series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.4, 3.6, 3.7, 9.6 or 11.6
and except for any Securities that, pursuant to Section 3.3, are deemed
never to have been authenticated and delivered hereunder); provided,
however, that the authorized aggregate principal amount of such series may
be increased above such amount by a Board Resolution to such effect;
(c) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that security (or
one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest;
(d) the Stated Maturity or Maturities on which the principal of the
Securities of such series is payable or the method of determination
thereof, and any dates on which or circumstances under which, the
Corporation shall have the right to extend or shorten such Stated Maturity
or Maturities;
(e) the rate or rates, if any, at which the Securities of such
series shall bear interest, if any, the rate or rates and extent to which
Additional Interest, if any, shall be payable in respect of any Securities
of such series, the date or dates from which any such interest or
Additional Interest shall accrue, the Interest Payment Dates on which such
interest shall be payable, the right, pursuant to Section 3.12 or as
otherwise set forth therein, of the Corporation to defer or extend an
Interest Payment Date, and the Regular Record Date for the interest
payable on any Interest Payment Date or the method by which any of the
foregoing shall be determined;
(f) the place or places where the principal of (and premium, if any)
and interest (including any Additional Interest) on the Securities of such
series shall be payable, the place or places where the Securities of such
series may be presented for registration of transfer or exchange, any
restrictions that may be applicable to any such transfer or exchange in
addition
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to or in lieu of those set forth herein, and the place or places where
notices and demands to or upon the Corporation in respect of the
Securities of such series may be made;
(g) the period or periods within or the date or dates on which, if
any, the price or prices at which and the terms and conditions upon which
the Securities of such series may be redeemed, in whole or in part, at the
option of the Corporation, and if other than by a Board Resolution, the
manner in which any election by the Corporation to redeem such Securities
shall be evidenced;
(h) the obligation or the right, if any, of the Corporation to
redeem, repay or purchase the Securities of such series pursuant to any
sinking fund, amortization or analogous provisions, or at the option of a
Holder thereof, and the period or periods within which, the price or
prices at which, the currency or currencies (including currency unit or
units) in which and the other terms and conditions upon which Securities
of the series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(i) the denominations in which any Securities of such series shall
be issuable, if other than denominations of $25 and any integral multiple
thereof;
(j) if other than Dollars, the currency or currencies (including any
currency unit or units) in which the principal of (and premium, if any)
and interest and Additional Interest, if any, on the Securities of the
series shall be payable, or in which the Securities of the series shall be
denominated and the manner of determining the equivalent thereof in
Dollars for purposes of the definition of Outstanding;
(k) the additions, modifications or deletions, if any, in the Events
of Default or covenants of the Corporation set forth herein with respect
to the Securities of such series;
(l) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series that shall be payable upon
declaration of acceleration of the Maturity thereof;
(m) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any
purpose thereunder or hereunder, including the principal amount thereof
which shall be due and payable upon any Maturity other than the Stated
Maturity or which shall be deemed to be Outstanding as of any date prior
to the Stated Maturity (or, in any such case, the manner in which such
amount deemed to be the principal amount shall be determined);
(n) the additions or changes, if any, to this Indenture with respect
to the Securities of such series as shall be necessary to permit or
facilitate the issuance of the Securities of such series in bearer form,
registrable or not registrable as to principal, and with or without
interest coupons;
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(o) any index or indices used to determine the amount of payments of
principal of and premium, if any, on the Securities of such series or the
manner in which such amounts will be determined;
(p) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities,
the form of any legend or legends that shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 2.4 and
any circumstances in addition to or in lieu of those set forth in Section
3.6 in which any such Global Security may be exchanged in whole or in part
for Securities registered, and any transfer of such Global Security in
whole or in part may be registered, in the name or names of Persons other
than the Depositary for such Global Security or a nominee thereof;
(q) the appointment of any Paying Agent or agents for the Securities
of such series;
(r) the terms of any right to convert or exchange Securities of such
series into any other securities or property of the Corporation, and the
additions or changes, if any, to this Indenture with respect to the
Securities of such series to permit or facilitate such conversion or
exchange;
(s) if such Securities are to be issued to an Issuer Trust, the form
or forms of the Trust Agreement, Guarantee Agreement and Expense Agreement
relating thereto;
(t) if other than as set forth herein, the relative degree, if any,
to which the Securities of the series shall be senior to or be
subordinated to other series of Securities in right of payment, whether
such other series of Securities are Outstanding or not;
(u) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the principal
amount thereof due and payable pursuant to Section 5.2;
(v) any addition to or change in the covenants set forth in Article
X which applies to Securities of the series; and
(w) any other terms of the Securities of such series (which terms
shall not be inconsistent with the provisions of this Indenture, except as
permitted by Section 9.1(6)).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided herein or in or
pursuant to such Board Resolution and set forth, or determined in the manner
provided, in such Officers' Certificate or in any indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Corporation and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
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The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article XIII.
SECTION 3.2. Denominations.
The Securities of each series shall be in registered form without coupons
and shall be issuable in denominations of $25 and any integral multiple of $25
in excess thereof, unless otherwise specified as contemplated by Section 3.1.
SECTION 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Corporation by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Corporation shall bind the
Corporation, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities. At any time and from
time to time after the execution and delivery of this Indenture, the Corporation
may deliver Securities of any series executed by the Corporation to the Trustee
for authentication, together with a Corporation Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Corporation
Order shall authenticate and deliver such Securities. If the form or terms of
the Securities of the series have been established by or pursuant to one or more
Board Resolutions as permitted by Sections 2.1 and 3.1, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.1, that such form
has been established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.1, that such terms
have been established in conformity with the provisions of this Indenture;
and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Corporation in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Corporation, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights,
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duties, indemnities or immunities under the Securities and this Indenture or
otherwise in a manner that is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Corporation Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
officers, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder. Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by the
Corporation, and the Corporation shall deliver such Security to the Trustee for
cancellation as provided in Section 3.10, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 3.4. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Corporation may execute, and upon Corporation Order the Trustee shall
authenticate and deliver, temporary Securities that are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any denomination,
substantially of the tenor of the definitive Securities of such series in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Corporation will
cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities, the temporary Securities
shall be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Corporation designated for that
purpose without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities, the Corporation shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations having the same
Original Issue Date and Stated Maturity and having the same terms as such
temporary Securities. Until so exchanged, the temporary Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
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SECTION 3.5. Global Securities.
(a) Each Global Security issued under this Indenture shall be registered
in the name of the Depositary designated by the Corporation for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall constitute a
single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security or a nominee
thereof unless (i) such Depositary advises the Trustee in writing that such
Depositary is no longer willing or able to properly discharge its
responsibilities as Depositary with respect to such Global Security, and the
Corporation is unable to locate a qualified successor, (ii) the Corporation
executes and delivers to the Trustee a Corporation Order stating that the
Corporation elects to terminate the book-entry system through the Depositary, or
(iii) there shall have occurred and be continuing an Event of Default.
(c) If any Global Security is to be exchanged for other Securities or
cancelled in whole, it shall be surrendered by or on behalf of the Depositary or
its nominee to the Securities Registrar for exchange or cancellation as provided
in this Article III. If any Global Security is to be exchanged for other
Securities or cancelled in part, or if another Security is to be exchanged in
whole or in part for a beneficial interest in any Global Security, then either
(i) such Global Security shall be so surrendered for exchange or cancellation as
provided in this Article III or (ii) the principal amount thereof shall be
reduced, subject to Section 3.6(b)(v), or increased by an amount equal to the
portion thereof to be so exchanged or cancelled, or equal to the principal
amount of such other Security to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment made on the
records of the Securities Registrar, whereupon the Trustee, in accordance with
the Applicable Procedures, shall instruct the Depositary or its authorized
representative to make a corresponding adjustment to its records. Upon any such
surrender or adjustment of a Global Security by the Depositary, accompanied by
registration instructions, the Trustee shall, subject to Section 3.5(b) and as
otherwise provided in this Article III, authenticate and deliver any Securities
issuable in exchange for such Global Security (or any portion thereof) in
accordance with the instructions of the Depositary. The Trustee shall not be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be fully protected in relying on, such instructions.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Article III, Section 9.6 or 11.6 or otherwise,
shall be authenticated and delivered in the form of, and shall be, a Global
Security, unless such Security is registered in the name of a Person other than
the Depositary for such Global Security or a nominee thereof.
(e) Securities distributed to holders of Book-Entry Capital Securities (as
defined in the applicable Trust Agreement) upon the dissolution of an Issuer
Trust shall be distributed in the form of one or more Global Securities
registered in the name of a Depositary or its nominee, and deposited with the
Securities Registrar, as custodian for such Depositary, or with such Depositary,
for credit by the Depositary to the respective accounts of the beneficial owners
of the Securities represented thereby
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(or such other accounts as they may direct). Securities distributed to holders
of Capital Securities other than Book-Entry Capital Securities upon the
dissolution of an Issuer Trust shall not be issued in the form of a Global
Security or any other form intended to facilitate book-entry trading in
beneficial interests in such Securities.
(f) The Depositary or its nominee, as the registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under
this Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security shall be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Agent Members.
Neither the Trustee nor the Securities Registrar shall have any liability in
respect of any transfers effected by the Depositary.
(g) The rights of owners of beneficial interests in a Global Security
shall be exercised only through the Depositary and shall be limited to those
established by law and agreements between such owners and the Depositary and/or
its Agent Members.
SECTION 3.6. Registration, Transfer and Exchange Generally.
The Corporation shall cause to be kept at the Corporate Trust Office of
the Trustee a register in which, subject to such reasonable regulations as it
may prescribe, the Corporation shall provide for the registration of Securities
and of transfers of Securities. Such register is herein sometimes referred to as
the "Securities Register." The Trustee is hereby appointed "Securities
Registrar" for the purpose of registering Securities and transfers of Securities
as herein provided.
Upon surrender for registration of transfer of any Security at the offices
or agencies of the Corporation designated for that purpose the Corporation shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same
series of any authorized denominations of like tenor and aggregate principal
amount.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series of any authorized denominations, of like tenor and
aggregate principal amount, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any securities are so surrendered for exchange,
the Corporation shall execute, and the Trustee shall authenticate and deliver,
the Securities that the Holder making the exchange is entitled to receive.
All Securities issued upon any transfer or exchange of Securities shall be
the legal, valid and binding obligations of the Corporation, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Every Security presented or surrendered for transfer or exchange shall (if
so required by the Corporation or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Corporation and the Securities Registrar, duly executed by the Holder thereof or
such Holder's attorney duly authorized in writing.
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No service charge shall be made to a Holder for any transfer or exchange
of Securities, but the Corporation may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Securities.
Neither the Corporation nor the Trustee shall be required, pursuant to the
provisions of this Section, (i) to issue, register the transfer of or exchange
any Security of any series during a period beginning at the opening of business
15 days before the day of selection for redemption of Securities of that series
pursuant to Article XI and ending at the close of business on the day of mailing
of the notice of redemption, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except, in the case of
any such Security to be redeemed in part, any portion thereof not to be
redeemed.
SECTION 3.7. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together with such
security or indemnity as may be required by the Corporation or the Trustee to
save each of them harmless, the Corporation shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series,
of like tenor and aggregate principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Corporation and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity as may be required by them to save
each of them harmless, then, in the absence of notice to the Corporation or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Corporation shall execute and upon its written request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series, of like tenor and aggregate
principal amount as such destroyed, lost or stolen Security, and bearing a
number not contemporaneously outstanding.
If any such mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Corporation in its discretion may, instead
of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Corporation
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and its counsel)
connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Corporation, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of the same series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 3.8. Payment of Interest and Additional Interest; Interest Rights
Preserved.
Interest and Additional Interest on any Security of any series that is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date, shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest in respect of Securities of such series, except
that, unless otherwise provided in the Securities of such series, interest and
any Additional Interest payable on the Stated Maturity of the principal of a
Security shall be paid to the Person to whom principal is paid. The initial
payment of interest on any Security of any series that is issued between a
Regular Record Date and the related Interest Payment Date shall be payable as
provided in such Security or in the Board Resolution pursuant to Section 3.1
with respect to the related series of Securities.
Any interest on any Security that is due and payable, but is not timely
paid or duly provided for, on any Interest Payment Date for Securities of such
series (herein called "Defaulted Interest"), shall forthwith cease to be payable
to the registered Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Corporation, at
its election in each case, as provided in Clause (1) or (2) below:
(1) The Corporation may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series in respect of which
interest is in default (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
Corporation shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Corporation shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest, which shall be
not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Corporation of such Special Record Date and, in the name and at the expense of
the Corporation, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first class, postage
prepaid, to each Holder of a Security of such series at the address of such
Holder as it appears in the Securities Register not less than 10 days prior to
such Special Record Date. The Trustee may, in its discretion, in the name and at
the expense of the Corporation, cause a similar notice to be published at least
once in a newspaper, customarily published in the English language on each
Business Day and of general circulation in the Borough of Manhattan, The City of
New York, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective Predecessor Securities)
are registered on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Corporation may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of the series
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in respect of which interest is in default may be listed and, upon such notice
as may be required by such exchange (or by the Trustee if the Securities are not
listed), if, after written notice given by the Corporation to the Trustee of the
proposed payment pursuant to this Clause, such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, that were carried by such other Security.
SECTION 3.9. Persons Deemed Owners.
The Corporation, the Trustee and any agent of the Corporation or the
Trustee shall treat the Person in whose name any Security is registered as the
owner of such Security for the purpose of receiving payment of principal of and
(subject to Section 3.8) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Corporation, the Trustee nor any agent of the Corporation or the Trustee shall
be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its
behalf by a Depositary shall have any rights under this Indenture with respect
to such Global Security, and such Depositary may be treated by the Corporation,
the Trustee and any agent of the Corporation or the Trustee as the owner of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Corporation, the Trustee or any agent of the
Corporation or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by a Depositary or impair, as between a
Depositary and such holders of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depositary (or its
nominee) as Holder of any Security.
SECTION 3.10. Cancellation.
All Securities surrendered for payment, redemption, transfer or exchange
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee, and any such Securities and Securities surrendered directly to the
Trustee for any such purpose shall be promptly canceled by it. The Corporation
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder that the Corporation may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities shall
be returned to the Corporation.
SECTION 3.11. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series for any
partial period shall be computed on the basis of a 360- day year of twelve
30-day months and the actual number of days elapsed in any partial month in such
period, and interest on the Securities of each series for a full period shall be
computed by dividing the rate per annum by the number of interest periods that
together constitute a full twelve months.
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SECTION 3.12. Deferrals of Interest Payment Dates.
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, so long as no Event of Default has
occurred and is continuing, the Corporation shall have the right, at any time
during the term of such series, from time to time to defer the payment of
interest on such Securities for such period or periods as may be specified as
contemplated by Section 3.1 (each, an "Extension Period"), during which
Extension Periods the Corporation shall, if so specified as contemplated by
Section 3.1, have the right to make partial payments of interest on any Interest
Payment Date. No Extension Period shall end on a date other than an Interest
Payment Date. At the end of any such Extension Period the Corporation shall pay
all interest then accrued and unpaid on the Securities (together with Additional
Interest thereon, if any, at the rate specified for the Securities of such
series to the extent permitted by applicable law); provided, however, that no
Extension Period shall extend beyond the Stated Maturity of the principal of the
Securities of such series; and provided further, however that during any such
Extension Period, the Corporation shall not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the Corporation's capital stock, or (ii) make any
payment of principal of or interest or premium, if any, on or repay, repurchase
or redeem any debt securities of the Corporation that rank pari passu in all
respects with or junior in interest to the Securities of such series (other than
(a) repurchases, redemptions or other acquisitions of shares of capital stock of
the Corporation in connection with any employment contract, benefit plan or
other similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, in connection with a dividend reinvestment
or stockholder stock purchase plan or in connection with the issuance of capital
stock of the Corporation (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered into prior
to the applicable Extension Period, (b) as a result of an exchange or conversion
of any class or series of the Corporation's capital stock (or any capital stock
of a Subsidiary of the Corporation) for any class or series of the Corporation's
capital stock or of any class or series of the Corporation's indebtedness for
any class or series of the Corporation's capital stock, (c) the purchase of
fractional interests in shares of the Corporation's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, or (d) any dividend in the form of stock,
warrants, options or other rights where the dividend stock or the stock issuable
upon exercise of such warrants, options or other rights is the same stock as
that on which the dividend is being paid or ranks pari passu with or junior to
such stock). Prior to the termination of any such Extension Period, the
Corporation may further defer the payment of interest, provided that no
Extension Period shall exceed the period or periods specified in such
Securities, extend beyond the Stated Maturity of the principal of such
Securities or end on a date other than an Interest Payment Date. Upon the
termination of any such Extension Period and upon the payment of all accrued and
unpaid interest and any Additional Interest then due on any Interest Payment
Date, the Corporation may elect to begin a new Extension Period, subject to the
above conditions. No interest or Additional Interest shall be due and payable
during an Extension Period, except at the end thereof, but each installment of
interest that would otherwise have been due and payable during such Extension
Period shall bear Additional Interest as and to the extent as may be specified
as contemplated by Section 3.1. The Corporation shall give the Holders of the
Securities of such series and the Trustee written notice of its election to
begin any such Extension Period at least one Business Day prior to the next
succeeding Interest Payment Date on which interest on Securities of such series
would be payable but for such deferral or, with respect to any Securities of a
series issued to an Issuer Trust, so long as any such Securities are held by
such Issuer Trust, at least one Business
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Day prior to the earlier of (i) the next succeeding date on which Distributions
on the Capital Securities of such Issuer Trust would be payable but for such
deferral, and (ii) the date on which the Property Trustee of such Issuer Trust
is required to give notice to any securities exchange or other applicable
self-regulatory organization or to holders of such Capital Securities of the
record date or the date such Distributions are payable.
The Trustee shall promptly give notice of the Corporation's election to
begin any such Extension Period to the Holders of the Outstanding Securities of
such series.
SECTION 3.13. Right of Set-Off.
With respect to the Securities of a series initially issued to an Issuer
Trust, notwithstanding anything to the contrary herein, the Corporation shall
have the right to set off any payment it is otherwise required to make in
respect of any such Security to the extent the Corporation has theretofore made,
or is concurrently on the date of such payment making, a payment under the
Guarantee Agreement relating to such Security or to a holder of Capital
Securities pursuant to an action undertaken under Section 5.8 of this Indenture.
SECTION 3.14. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Corporation and, by
its acceptance or acquisition of a Security or a beneficial interest therein,
the Holder of, and any Person that acquires a direct or indirect beneficial
interest in, such Security, intend and agree to treat such Security as
indebtedness of the Corporation for United States Federal, state and local tax
purposes and, with respect to Securities of a series issued to an Issuer Trust,
to treat Capital Securities of such Issuer Trust (including but not limited to
all payments and proceeds with respect to such Capital Securities) as an
undivided beneficial ownership interest in the Securities (and payments and
proceeds therefrom, respectively) for United States Federal, state and local tax
purposes. The provisions of this Indenture shall be interpreted to further this
intention and agreement of the parties.
SECTION 3.15. Shortening and Extension of Stated Maturity.
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, the Corporation shall have the right to
(i) shorten the Stated Maturity of the principal of the Securities of such
series at any time to any date not earlier than the first date on which the
Corporation has the right to redeem the Securities of such series, or (ii) to
extend the stated maturity of the principal of the Securities of such series at
any time to any date, but only if the Corporation has long-term senior unsecured
debt that is outstanding and rated Investment Grade when it gives notice of the
extension as described below. "Investment Grade" means either a rating of BBB or
better by Standard & Poor's Ratings Services (or any equivalent successor
rating) or a rating of Baa3 or better by Moody's Investors Service, Inc. (or any
equivalent successor rating). In the event that the Corporation elects to
shorten or extend the Stated Maturity of the Securities of such series, it shall
give written notice to the Trustee. The Trustee must notify the Holders not less
than 30 days nor more than 60 days before the effective date.
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SECTION 3.16. CUSIP Numbers.
The Corporation in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption and other similar or related materials as a convenience to
Holders; provided that any such notice or other materials may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of redemption or other materials
and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such redemption shall not be affected by any defect
in or omission of such numbers. The Corporation shall promptly notify the
Trustee of any change in the CUSIP Numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Corporation Request, cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for and as otherwise provided
in this Section 4.1) and the Trustee, on demand of and at the expense of the
Corporation, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities that have been destroyed, lost or stolen and that have
been replaced or paid as provided in Section 3.7 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Corporation and thereafter repaid to the
Corporation or discharged from such trust, as provided in Section 10.3)
have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year of the date of deposit, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Corporation,
and the Corporation, in the case of subclause (B)(i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount in the
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currency or currencies in which the Securities of such series are payable
sufficient to pay and discharge the entire indebtedness on such Securities
not theretofore delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest (including any Additional Interest) to
the date of such deposit (in the case of Securities that have become due
and payable) or to the Stated Maturity or Redemption Date, as the case may
be;
(2) the Corporation has paid or caused to be paid all other sums payable
hereunder by the Corporation; and
(3) the Corporation has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Corporation to the Trustee under Section 6.7, the obligations
of the Trustee to any Authenticating Agent under Section 6.14 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of Clause
(1) of this Section, the obligations of the Trustee under Section 4.2 and the
last paragraph of Section 10.3 shall survive such satisfaction and discharge.
SECTION 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust and
applied by the Trustee, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Corporation acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest (including any Additional Interest) for the payment of which
such money or obligations have been deposited with or received by the Trustee.
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default.
"Event of Default", wherever used herein with respect to the Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) except
as may be specified pursuant to Section 3.1:
(1) default in the payment of any interest upon any Security of that
series, including any Additional Interest in respect thereof, when it becomes
due and payable, and continuance of such default for a period of 30 days
(subject to the deferral of any due date in the case of an Extension Period); or
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(2) default in the payment of the principal of (or premium, if any, on)
any Security of that series at its Maturity; or
(3) failure on the part of the Corporation duly to observe or perform any
other of the covenants or agreements on the part of the Corporation in the
Securities of that series or in this Indenture for a period of 90 days after the
date on which written notice of such failure, requiring the Corporation to
remedy the same, shall have been given to the Corporation by the Trustee by
registered or certified mail or to the Corporation and the Trustee by the
Holders of at least 25% in aggregate principal amount of the Outstanding
Securities of that series; or
(4) the entry of a decree or order by a court having jurisdiction in the
premises adjudging the Corporation a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization of the Corporation under the
Bankruptcy Code or any other similar applicable Federal or State law, which
decree or order shall have continued undischarged and unstayed for a period of
60 days; or the entry of a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver or liquidator or trustee or assignee
in bankruptcy or insolvency of the Corporation or of its property, or for the
winding up or liquidation of its affairs, which decree or order shall have
continued undischarged and unstayed for a period of 60 days; or
(5) the commencement by the Corporation of voluntary proceedings to be
adjudicated a bankrupt, or consent by the Corporation to the filing of a
bankruptcy proceeding against it, or the filing by the Corporation of a petition
or answer or consent seeking reorganization under the Bankruptcy Code or any
other similar Federal or State law, or consent by the Corporation to the filing
of any such petition, or the consent by the Corporation to the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it
or of its property, or the making by the Corporation of an assignment for the
benefit of creditors, or the admission by the Corporation in writing of its
inability to pay its debts generally as they become due; or
(6) any other Event of Default provided with respect to Securities of that
series.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 5.1(4) or 5.1(5)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
the Securities of that series are Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all the
Securities of that series to be due and payable immediately, by a notice in
writing to the Corporation (and to the Trustee if given by Holders), provided
that, in the case of the Securities of a series issued to an Issuer Trust, if,
upon an Event of Default, the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of such series fail to declare
the principal of all the Outstanding Securities of such series to be immediately
due and payable, the holders of at least 25% in aggregate Liquidation Amount (as
defined in the related Trust Agreement) of the related series of Capital
Securities issued by such Issuer Trust then outstanding shall have the right to
make such declaration by a notice in writing to the Corporation and the Trustee;
and upon any such declaration such principal amount (or specified portion
thereof) of and the accrued interest (including
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any Additional Interest) on all the Securities of such series shall become
immediately due and payable. If an Event of Default specified in Section 5.1(4)
or 5.1(5) with respect to Securities of any series at the time Outstanding
occurs, the principal amount of all the Securities of such series (or, if the
Securities of such series are Discount Securities, such portion of the principal
amount of such Securities as may be specified by the terms of that series) shall
automatically, and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and payable. Payment of principal
and interest (including any Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article XIII notwithstanding that such
amount shall become immediately due and payable as herein provided.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Corporation and
the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Corporation has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest on all Securities of such series,
(B) any accrued Additional Interest on all Securities of such series,
(C) the principal of (and premium, if any, on) any Securities of such
series that have become due otherwise than by such declaration of acceleration
and interest and Additional Interest thereon at the rate borne by the
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel; and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series that has
become due solely by such acceleration, have been cured or waived as provided in
Section 5.13.
In the case of Securities of a series initially issued to an Issuer Trust,
if the Holders of such Securities fail to annul such declaration and waive such
default, the holders of a majority in aggregate Liquidation Amount (as defined
in the related Trust Agreement) of the related series of Capital Securities
issued by such Issuer Trust then outstanding shall also have the right to
rescind and annul such declaration and its consequences by written notice to the
Corporation and the Trustee, subject to the satisfaction of the conditions set
forth in Clauses (1) and (2) above of this Section 5.2.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Corporation covenants that if:
(1) default is made in the payment of any installment of interest
(including any Additional Interest) on any Security of any series when such
interest becomes due and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal of (and premium, if
any, on) any Security at the Maturity thereof,
the Corporation will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal, including any sinking fund payment or
analogous obligations (and premium, if any) and interest (including any
Additional Interest), and, in addition thereto, all amounts owing the Trustee
under Section 6.7.
If the Corporation fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Corporation or any other obligor upon such Securities and collect
the moneys adjudged or decreed to be payable in the manner provided by law out
of the property of the Corporation or any other obligor upon the Securities,
wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem necessary to protect
and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 5.4. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Corporation or any other obligor upon the Securities
or the property of the Corporation or of such other obligor or their creditors,
(a) the Trustee (irrespective of whether the principal of the
Securities of any series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Corporation for the payment of
overdue principal (and premium, if any) or interest (including any
Additional Interest)) shall be entitled and empowered, by intervention in
such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest (including any
Additional Interest) owing and unpaid in respect to the Securities
and to file such other papers or documents as may be necessary or
advisable and to take any and all actions as are authorized under
the Trust Indenture Act in order
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to have the claims of the Holders and any predecessor to the Trustee
under Section 6.7 allowed in any such judicial proceedings; and
(ii) in particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on
any such claims and to distribute the same in accordance with
Section 5.6; and
(b) any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the Trustee
for distribution in accordance with Section 5.6, and in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it and any predecessor
Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the 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 the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 5.5. Trustee May Enforce Claim Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, subject to
Article XIII and after provision for the payment of all the amounts owing the
Trustee and any predecessor Trustee under Section 6.7, its agents and counsel,
be for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 5.6. Application of Money Collected.
Any money or property collected or to be applied by the Trustee with
respect to a series of Securities pursuant to this Article shall be applied in
the following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money or property on account of principal (or premium,
if any) or interest (including any Additional Interest), upon presentation of
the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee (and its agents and
counsel) and any predecessor Trustee under Section 6.7;
SECOND: Subject to Article XIII, to the payment of the amounts then due
and unpaid upon Securities of such series for principal (and premium, if any)
and interest (including any Additional Interest) in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such series of
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Securities for principal (and premium, if any) and interest (including any
Additional Interest), respectively; and
THIRD: The balance, if any, to the Corporation.
SECTION 5.7. Limitation on Suits.
Subject to Section 5.8, no Holder of any Securities of any series shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture or for the appointment of a receiver, assignee, trustee,
liquidator, sequestrator (or other similar official) or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in aggregate
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest; Direct Action by Holders of Capital Securities.
Notwithstanding any other provision in this Indenture, the Holder of any
Security of any series shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Sections 3.8 and 3.12) interest (including any Additional Interest)
on such Security on the respective Stated Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder. In the case of Securities of a series issued
to an Issuer Trust, any registered holder of the series of Capital Securities
issued by such Issuer Trust shall have the right, upon the occurrence of an
Event of Default described in
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Section 5.1(1) or 5.1(2), to institute a suit directly against the Corporation
for enforcement of payment to such holder of principal of (premium, if any) and
(subject to Sections 3.8 and 3.12) interest (including any Additional Interest)
on the Securities having a principal amount equal to the aggregate Liquidation
Amount (as defined in the related Trust Agreement) of such Capital Securities
held by such holder.
SECTION 5.9. Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Capital Securities issued by
any Issuer Trust has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee, such Holder or such
holder of Capital Securities, then and in every such case the Corporation, the
Trustee, such Holders and such holder of Capital Securities shall, subject to
any determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee, such Holder and such holder of Capital Securities shall continue as
though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.7, no
right or remedy herein conferred upon or reserved to the Trustee or the Holders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any Security with
respect to the Securities of the related Series or any holder of any Capital
Security to exercise any right or remedy accruing upon any Event of Default with
respect to the Securities of the related series shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein.
Every right and remedy given by this Article or by law to the Trustee or
to the Holders and the right and remedy given to the holders of Capital
Securities by Section 5.8 may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee, the Holders or the holders of Capital
Securities, as the case may be.
SECTION 5.12. Control by Holders.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law or with
this Indenture,
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(2) the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee shall have the
right to decline to follow such direction if a Responsible Officer or Officers
of the Trustee shall, in good faith, determine that the proceeding so directed
would be unjustly prejudicial to the Holders not joining in any such direction
or would involve the Trustee in personal liability.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of any series affected thereby and, in the case of
any Securities of a series initially issued to an Issuer Trust, the holders of a
majority in aggregate Liquidation Amount (as defined in the related Trust
Agreement) of the Capital Securities issued by such Issuer Trust may waive any
past default hereunder and its consequences with respect to such series except a
default:
(1) in the payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on any Security of such series (unless such
default has been cured and the Corporation has paid to or deposited with the
Trustee a sum sufficient to pay all matured installments of interest (including
any Additional Interest) and all principal of (and premium, if any, on) all
Securities of that series due otherwise than by acceleration), or
(2) in respect of a covenant or provision hereof that under Article IX
cannot be modified or amended without the consent of each Holder of any
Outstanding Security of such series affected.
Any such waiver shall be deemed to be on behalf of the Holders of all the
Securities of such series or, in the case of a waiver by holders of Capital
Securities issued by such Issuer Trust, by all holders of Capital Securities
issued by such Issuer Trust.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in aggregate principal amount of the Outstanding
Securities of any series, or to any suit instituted by any Holder for the
enforcement of the
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payment of the principal of (or premium, if any) or interest (including any
Additional Interest) on any Security on or after the respective Stated
Maturities expressed in such Security.
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.
The Corporation covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Corporation (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any such
certificates or opinions that by any provisions hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of any mathematical
calculations or other facts stated therein).
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
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(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of
Holders pursuant to Section 5.12 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect
to the Securities of a series.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if there shall be reasonable grounds for believing that repayment of
such funds or indemnity reasonably satisfactory to it against such risk or
liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 6.2. Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder with respect to the
Securities of any series, the Trustee shall transmit by mail to all Holders of
Securities of such series, as their names and addresses appear in the Securities
Register, notice of such default, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of (or premium, if any) or interest (including any Additional
Interest) on any Security of such series, the Trustee shall be fully protected
in withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of Securities of such series; and
provided, further, that, in the case of any default of the character specified
in Section 5.1(3), no such notice to Holders of Securities of such series shall
be given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event that is, or after notice or
lapse of time or both would become, an Event of Default with respect to
Securities of such series.
SECTION 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, Security or other paper or document (whether in its original or
facsimile form) believed by it to be genuine and to have been signed or
presented by the proper party or parties;
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(b) any request or direction of the Corporation mentioned herein shall be
sufficiently evidenced by a Corporation Request or Corporation Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its own selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, indenture,
Security or other paper or document, but the Trustee in its discretion may make
such inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Corporation,
personally or by agent or attorney at the expense of the Corporation and shall
incur no liability or additional liability of any kind by reason of such inquiry
or investigation; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents, attorneys,
custodians or nominees and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent, attorney, custodian or
nominee appointed with due care by it hereunder.
(h) in the event that the Trustee is also acting as Paying Agent,
Authenticating Agent or Transfer Agent and Registrar hereunder, the rights and
protections afforded to the Trustee pursuant to this Article VI shall also be
afforded such Paying Agent or Transfer Agent and Registrar.
(i) the Trustee shall not be under any obligation to take any action that
is discretionary under the provisions of this Indenture.
(j) the Trustee shall not be charged with knowledge of any Event of
Default unless either (1) a Responsible Officer of the Trustee shall have actual
knowledge or (2) the Trustee shall have received notice thereof from the Company
or a Holder.
(k) no permissive power or authority available to the Trustee shall be
construed as a duty.
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SECTION 6.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Corporation, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Corporation of the Securities or the proceeds thereof.
SECTION 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Securities
Registrar or any other agent of the Corporation, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
6.8 and 6.13, may otherwise deal with the Corporation with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent,
Securities Registrar or such other agent.
SECTION 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Corporation.
SECTION 6.7. Compensation and Reimbursement.
The Corporation agrees
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder in such amounts as the Corporation and the
Trustee shall agree from time to time in writing (which compensation shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust);
(2) to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or willful
misconduct; and
(3) to fully indemnify the Trustee and any predecessor Trustee and their
officers, directors, agents and employees for, and to hold it harmless against,
any and all loss, liability, claim, damage or expense (including (i) the
reasonable compensation and the expenses and disbursements of its agents and
counsel and (ii) taxes other than taxes based on the income of the Trustee)
incurred without negligence, bad faith or willful misconduct, arising out of or
in connection with the acceptance or administration of this trust or the
performance of its duties hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any
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of its powers or duties hereunder. This indemnification shall survive the
termination of this Indenture or the earlier resignation or removal of the
Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(4) or 5.1(5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or any successor statute.
SECTION 6.8. Disqualification; Conflicting Interests.
(a) The Trustee for the Securities of any series issued hereunder shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act. Nothing
herein shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of said Section 310(b).
(b) The Trust Agreement and the Guarantee Agreement with respect to each
Issuer Trust shall be deemed to be specifically described in this Indenture for
the purposes of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
SECTION 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be:
(a) a corporation organized and doing business under the laws of the
United States of America or of any State or Territory or the District of
Columbia, authorized under such laws to exercise corporate trust powers and
subject to supervision or examination by Federal, State, Territorial or District
of Columbia authority, or
(b) a corporation or other Person organized and doing business under the
laws of a foreign government that is permitted to act as Trustee pursuant to a
rule, regulation or order of the Commission, authorized under such laws to
exercise corporate trust powers, and subject to supervision or examination by
authority of such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to United
States institutional trustees, in either case having a combined capital and
surplus of at least $50,000,000, subject to supervision or examination by
Federal or State authority. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then, for the purposes of this Section 6.9,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.9, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article VI.
Neither the Corporation nor any Person directly or indirectly controlling,
controlled by or under common control with the Corporation shall serve as
Trustee for the Securities of any series issued hereunder.
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SECTION 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article VI shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Corporation. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in aggregate principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Corporation.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after written
request therefor by the Corporation or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 and shall
fail to resign after written request therefor by the Corporation or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Corporation, acting pursuant to the authority of
a Board Resolution, may remove the Trustee with respect to the Securities of all
series issued hereunder, or (ii) subject to Section 5.14, any Holder who has
been a bona fide Holder of a Security for at least six months may, on behalf of
such Holder and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to the Securities of
all series issued hereunder and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause with respect
to the Securities of one or more series, the Corporation, by a Board Resolution,
shall promptly appoint a successor Trustee with respect to the Securities of
that or those series. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in aggregate principal amount of the Outstanding Securities of
such series delivered to the Corporation and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee with respect to the Securities of such series and
supersede the successor Trustee appointed by the Corporation. If no successor
Trustee with respect to the Securities of any series shall have been so
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appointed by the Corporation or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, subject to Section 5.14, on
behalf of such Holder and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Corporation shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities of such series as their names and addresses appear in the
Securities Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Corporation and to the retiring Trustee
an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Corporation or the successor Trustee, such retiring Trustee
shall, upon payment of its charges and the charges of its agents and counsel,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Corporation,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts, and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Corporation or
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any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Corporation shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated, and in case any
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor Trustee or in
the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee shall have.
SECTION 6.13. Preferential Collection of Claims Against Corporation.
If and when the Trustee shall be or become a creditor of the Corporation
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Corporation (or any such other obligor).
SECTION 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities, which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.6, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Corporation and shall at all times be a corporation organized and doing business
under the laws of the United States of America, or of any State or Territory
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision
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or examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined Capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Corporation. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Corporation. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent, which shall be acceptable to the Corporation and shall give notice of
such appointment in the manner provided in Section 1.6 to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provision of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 6.7.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein referred to
in the within mentioned Indenture.
Dated:
THE BANK OF NEW YORK,
As Trustee
By: ,
As Authenticating Agent
By:
Authorized Signatory
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ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND CORPORATION
SECTION 7.1. Corporation to Furnish Trustee Names and Addresses of
Holders.
The Corporation will furnish or cause to be furnished to the Trustee:
(a) semi-annually, on or before June 30 and December 31 of each
year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of a date not more than 15 days
prior to the delivery thereof, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Corporation of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished,
in each case to the extent such information is in the possession or control of
the corporation and has not otherwise been received by the Trustee in its
capacity as Securities Registrar.
SECTION 7.2. Preservation of Information, Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided in the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Corporation and the Trustee that neither the Corporation nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
SECTION 7.3. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act, at the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than May 15 in each calendar year,
commencing after the first issuance of Securities under this Indenture or May
15, 2000, whichever is later.
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(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each securities exchange upon which any
Securities are listed and also with the Commission. The Corporation will notify
the Trustee when any Securities are listed on any securities exchange or
delisted therefrom.
SECTION 7.4. Reports by Corporation.
The Corporation shall file with the Trustee and with the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided in the Trust Indenture Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act shall be filed with
the Trustee within 15 days after the same is required to be filed with the
Commission. Notwithstanding that the Corporation may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Corporation shall continue to file with the Commission and provide the
Trustee with the annual reports and the information, documents and other reports
which are specified in Sections 13 and 15(d) of the Exchange Act. The
Corporation also shall comply with the other provisions of Trust Indenture Act
Section 314(a). Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Corporation's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Corporation May Consolidate, Etc., Only on Certain Terms.
The Corporation shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and no Person shall consolidate with or merge into the
Corporation or convey, transfer or lease its properties and assets substantially
as an entirety to the Corporation, unless:
(1) if the Corporation shall consolidate with or merge into another Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, the corporation formed by such consolidation or into
which the Corporation is merged or the Person that acquires by conveyance or
transfer, or that leases, the properties and assets of the Corporation
substantially as an entirety shall be a corporation, partnership or trust
organized and existing under the laws of the United States of America or any
State thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
(and premium, if any) and interest (including any Additional Interest) on all
the Securities of every series and the performance of every covenant of this
Indenture on the part of the Corporation to be performed or observed;
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(2) immediately after giving effect to such transaction, no Event of
Default, and no event that, after notice or lapse of time, or both, would
constitute an Event of Default, shall have happened and be continuing; and
(3) the Corporation has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and any such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating to
such transaction have been complied with; and the Trustee, subject to Section
6.1, may rely upon such Officers' Certificate and Opinion of Counsel as
conclusive evidence that such transaction complies with this Section 8.1.
SECTION 8.2. Successor Corporation Substituted.
Upon any consolidation or merger by the Corporation with or into any other
Person, or any conveyance, transfer or lease by the Corporation of its
properties and assets substantially as an entirety to any Person in accordance
with Section 8.1, the successor corporation formed by such consolidation or into
which the Corporation is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Corporation under this Indenture with the same effect as if
such successor Person had been named as the Corporation herein; and in the event
of any such conveyance, transfer or lease the Corporation shall be discharged
from all obligations and covenants under the Indenture and the Securities.
Such successor Person may cause to be executed, and may issue either in
its own name or in the name of the Corporation, any or all of the Securities
issuable hereunder that theretofore shall not have been signed by the
Corporation and delivered to the Trustee; and, upon the order of such successor
Person instead of the Corporation and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities that previously shall have been signed and
delivered by the officers of the Corporation to the Trustee for authentication
pursuant to such provisions and any Securities that such successor Person
thereafter shall cause to be executed and delivered to the Trustee on its behalf
for the purpose pursuant to such provisions. All the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture.
In case of any such consolidation, merger, sale, conveyance or lease, such
changes in phraseology and form may be made in the Securities thereafter to be
issued as may be appropriate.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Corporation, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Corporation,
and the assumption by any such successor of the covenants of the
Corporation herein and in the Securities contained; or
(2) to convey, transfer, assign, mortgage or pledge any property to
or with the Trustee or to surrender any right or power herein conferred
upon the Corporation; or
(3) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 or 3.1; or
(4) to add to the covenants of the Corporation for the benefit of
the Holders of all or any series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of the
series specified) or to surrender any right or power herein conferred upon
the Corporation; or
(5) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are expressly
being included solely for the benefit of the series specified); or
(6) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall (a) become effective
only when there is no Security Outstanding of any series created prior to
the execution of such supplemental indenture that is entitled to the
benefit of such provision or (b) not apply to any Outstanding Securities;
or
(7) to cure any ambiguity, to correct or supplement any provision
herein that may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action pursuant
to this clause (7) shall not adversely affect the interest of the Holders
of Securities of any series in any material respect or, in the case of the
Securities of a series issued to an Issuer Trust and for so long as any of
the corresponding series of Capital Securities issued by such Issuer Trust
shall remain outstanding, the holders of such Capital Securities; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
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administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 6.11(b); or
(9) to comply with the requirements of the Commission in order to
effect or maintain qualification of this Indenture under the Trust
Indenture Act.
SECTION 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Corporation and
the Trustee, the Corporation, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security of each series affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of
interest (including any Additional Interest) on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or reduce the amount of principal of a Discount
Security that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.2, or change the place of payment where,
or the coin or currency in which, any Security or interest thereon is payable,
or impair the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or
(2) reduce the percentage in aggregate principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 5.13 or Section
10.5, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Security affected thereby;
provided, further, that, in the case of the Securities of a series issued to an
Issuer Trust, so long as any of the corresponding series of Capital Securities
issued by such Issuer Trust remains outstanding, (i) no such amendment shall be
made that adversely affects the holders of such Capital Securities in any
material respect, and no termination of this Indenture shall occur, and no
waiver of any Event of Default or compliance with any covenant under this
Indenture shall be effective, without the prior consent of the holders of at
least a majority of the aggregate Liquidation Amount (as defined in the related
Trust Agreement) of such Capital Securities then outstanding unless and until
the principal of (and premium, if any, on) the Securities of such series and all
accrued and (subject to Section 3.12) unpaid interest (including any Additional
Interest) thereon have been paid in full, and (ii) no amendment shall be made to
Section 5.8 of this Indenture that would impair the rights of the holders of
Capital Securities issued by any Issuer Trust provided therein without the prior
consent of the holders
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of each such Capital Security then outstanding unless and until the principal of
(and premium, if any, on) the Securities of such series and all accrued and
(subject to Section 3.12) unpaid interest (including any Additional Interest)
thereon have been paid in full.
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Securities or any corresponding
series of Capital Securities of an Issuer Trust that holds the Securities of any
series, or that modifies the rights of the Holders of Securities of such series
or holders of such Capital Securities of such corresponding series with respect
to such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series or holders
of Capital Securities of any other such corresponding series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in conclusively relying
upon, an Officers' Certificate and an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture, and that all conditions precedent herein provided for relating to
such action have been complied with. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture that affects the Trustee's own
rights, duties, indemnities or immunities under this Indenture or otherwise.
SECTION 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.6. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Corporation, bear a notation in form approved by the Corporation as to any
matter provided for in such supplemental indenture. If the Corporation shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the
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Corporation, to any such supplemental indenture may be prepared and executed by
the Corporation and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest.
The Corporation covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest (including any Additional Interest) on the Securities of
that series in accordance with the terms of such Securities and this Indenture.
SECTION 10.2. Maintenance of Office or Agency.
The Corporation will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Corporation in respect of the Securities of that series and this
Indenture may be served. The Corporation initially appoints the Trustee, acting
through its Corporate Trust Office, as its agent for said purposes. The
Corporation will give prompt written notice to the Trustee of any change in the
location of any such office or agency. If at any time the Corporation shall fail
to maintain such office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Corporation
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Corporation 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 of such purposes, may from time to time rescind such designations, and
may act as its own Paying Agent; provided, however, that no such designation or
rescission shall in any manner relieve the Corporation of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Corporation will give prompt written notice to the
Trustee of any such designation and any change in the location of any such
office or agency.
SECTION 10.3. Money for Security Payments to be Held in Trust.
If the Corporation shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any, an) or interest on any of the Securities of
such series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee in writing
of its failure so to act.
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Whenever the Corporation shall have one or more Paying Agents, it will,
prior to 10:00 a.m., New York City time, on each due date of the principal of
(or premium, if any) or interest (including any Additional Interest) on any
Securities, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest (including any Additional Interest) so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal (and premium, if any) or interest (including any
Additional Interest), and (unless such Paying Agent is the Trustee) the
Corporation will promptly notify the Trustee of its failure so to act.
The Corporation will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest (including any Additional Interest) on
the Securities of a series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default by the
Corporation (or any other obligor upon such Securities) in the making of
any payment of principal (and premium, if any) or interest (including any
Additional Interest) in respect of any Security of any Series;
(3) at any time during the continuance of any default with respect
to a series of Securities, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying
Agent with respect to such series; and
(4) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent.
The Corporation may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Corporation Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Corporation or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the
Corporation or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Corporation in trust for the payment of the principal of (and premium, if
any) or interest (including any Additional Interest) on any Security and
remaining unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall (unless otherwise required by
mandatory provision of applicable escheat or abandoned or unclaimed property
law) be paid on Corporation Request to the Corporation, or (if then held by the
Corporation) shall (unless otherwise required by mandatory provision of
applicable escheat or abandoned or unclaimed property law) be discharged from
such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Corporation for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Corporation as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such
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repayment, may at the expense of the Corporation cause to be published once, in
a newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City of
New York, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Corporation.
SECTION 10.4. Statement as to Compliance.
The Corporation shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Corporation ending after the date hereof, an
Officers' Certificate covering the preceding calendar year, stating whether or
not to the best knowledge of the signers thereof the Corporation is in default
in the performance, observance or fulfillment of or compliance with any of the
terms, provisions, covenants and conditions of this Indenture, and if the
Corporation shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge. For the purpose of this Section
10.4, compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.
SECTION 10.5. Waiver of Certain Covenants.
Subject to the rights of holders of Capital Securities specified in
Section 9.2, if any, the Corporation may omit in any particular instance to
comply with any covenant or condition provided pursuant to Section 3.1, 9.1(3)
or 9.1(4) with respect to the Securities of any series, if before or after the
time for such compliance the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the
Corporation in respect of any such covenant or condition shall remain in full
force and effect.
SECTION 10.6. Additional Sums.
In the case of the Securities of a series initially issued to an Issuer
Trust, so long as no Event of Default has occurred and is continuing and except
as otherwise specified as contemplated by Section 2.1 or Section 3.1, if (i) an
Issuer Trust is the Holder of all of the Outstanding Securities of such series,
and (ii) a Tax Event described in clause (i) or (iii) in the definition of Tax
Event in Section 1.1 hereof has occurred and is continuing in respect of such
Issuer Trust, the Corporation shall pay to such Issuer Trust (and its permitted
successors or assigns under the related Trust Agreement) for so long as such
Issuer Trust (or its permitted successor or assignee) is the registered holder
of the Outstanding Securities of such series, such additional sums as may be
necessary in order that the amount of Distributions (including any Additional
Amounts (as defined in such Trust Agreement)) then due and payable by such
Issuer Trust on the related Capital Securities and Common Securities that at any
time remain outstanding in accordance with the terms thereof shall not be
reduced as a result of any Additional Taxes arising from such Tax Event (the
"Additional Sums"). Whenever in this Indenture or the Securities there is a
reference in any context to the payment of principal of or interest on the
Securities, such mention shall be deemed to include mention of the payments of
the Additional
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Sums provided for in this paragraph to the extent that, in such context,
Additional Sums are, were or would be payable in respect thereof pursuant to the
provisions of this paragraph and express mention of the payment of Additional
Sums (if applicable) in any provisions hereof shall not be construed as
excluding Additional Sums in those provisions hereof where such express mention
is not made; provided, however, that the deferral of the payment of interest
pursuant to Section 3.12 or the Securities shall not defer the payment of any
Additional Sums that may be due and payable.
SECTION 10.7. Additional Covenants.
The Corporation covenants and agrees with each Holder of Securities of
each series that it shall not (x) declare or pay any dividends or distributions
on, or redeem purchase, acquire or make a liquidation payment with respect to,
any shares of the Corporation's capital stock, or (y) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or redeem
any debt securities of the Corporation that rank pari passu in all respects with
or junior in interest to the Securities of such series make any guarantee
payments with respect to any guarantee by the Issuer of the debt securities of
any subsidiary if such guarantee ranks pari passu in all respects with or junior
in interest to the Securities of such series (other than (a) repurchases,
redemptions or other acquisitions of shares of capital stock of the Corporation
in connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more employees, officers,
directors or consultants, in connection with a dividend reinvestment or
stockholder stock purchase plan or in connection with the issuance of capital
stock of the Corporation (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered into prior
to the applicable Extension Period, (b) as a result of an exchange or conversion
of any class or series of the Corporation's capital stock (or any capital stock
of a Subsidiary of the Corporation) for any class or series of the Corporation's
capital stock or of any class or series of the Corporation's indebtedness for
any class or series of the Corporation's capital stock, (c) the purchase of
fractional interests in shares of the Corporation's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, or (d) any dividend in the form of stock,
warrants, options or other rights where the dividend stock or the stock issuable
upon exercise of such warrants, options or other rights is the same stock as
that on which the dividend is being paid or ranks pari passu with or junior to
such stock) if at such time (i) there shall have occurred any event (A) of which
the Corporation has knowledge that with the giving of notice or the lapse of
time, or both, would constitute an Event of Default with respect to the
Securities of such series, and (B) which the Corporation shall not have taken
reasonable steps to cure, (ii) if the Securities of such series are held by an
Issuer Trust, the Corporation shall be in default with respect to its payment of
any obligations under the Guarantee Agreement relating to the Capital Securities
issued by such Issuer Trust, or (iii) the Corporation shall have given notice of
its election to begin an Extension Period with respect to the Securities of such
series as provided herein and shall not have rescinded such notice, or such
Extension Period, or any extension thereof, shall be continuing.
The Corporation also covenants with each Holder of Securities of a series
issued to an Issuer Trust (i) to hold, directly or indirectly, 100% of the
Common Securities of such Issuer Trust, provided that any permitted successor of
the Corporation hereunder may succeed to the Corporation's ownership of such
Common Securities, (ii) as holder of such Common Securities, not to voluntarily
terminate, wind-up or liquidate such Issuer Trust, other than (a) in connection
with a distribution of the Securities of such series to the holders of the
related Capital Securities in liquidation of such Issuer Trust, or
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(b) in connection with certain mergers, consolidations or amalgamations
permitted by the related Trust Agreement, and (iii) to use its reasonable
efforts, consistent with the terms and provisions of such Trust Agreement, to
cause such Issuer Trust to continue not to be taxable as a corporation for
United States federal income tax purposes.
SECTION 10.8. Original Issue Discount.
For each year during which any Securities that were issued with original
issue discount are Outstanding, the Corporation shall furnish to each Paying
Agent in a timely fashion such information as may be reasonably requested by
each Paying Agent in order that each Paying Agent may prepare the information
which it is required to report for such year on Internal Revenue Service Forms
1096 and 1099 pursuant to Section 6049 of the Internal Revenue Code of 1986, as
amended. Such information shall include the amount of original issue discount
includible in income for each $25 of principal amount at Stated Maturity of
outstanding Securities during such year.
SECTION 10.9. Statement by Officers as to Default.
The Corporation shall deliver to the Trustee, as soon as possible and in
any event within five days after the Corporation becomes aware of the occurrence
of any Event of Default or an event which, with notice or the lapse of time or
both, would constitute an Event of Default, an Officers' Certificate setting
forth the details of such Event of Default or default and the action which the
Corporation proposes to take with respect thereto.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1. Applicability of This Article.
Redemption of Securities of any series (whether by operation of a sinking
fund or otherwise) as permitted or required by any form of Security issued
pursuant to this Indenture shall be made in accordance with such form of
Security and this Article; provided, however, that if any provision of any such
form of Security shall conflict with any provision of this Article, the
provision of such form of Security shall govern. Except as otherwise set forth
in the form of Security for such series, each Security of a series shall be
subject to partial redemption only in the amount of $25 or any integral
multiples thereof.
SECTION 11.2. Election to Redeem; Notice to Trustee.
The election of the Corporation to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at the
election of the Corporation, the Corporation shall, at least 45 days prior to
the Redemption Date (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee in writing and, in the case of Securities of a
series held by an Issuer Trust, the Property Trustee under the related Trust
Agreement, of such date and of the principal amount of Securities of the
applicable series to be redeemed and provide the additional information required
to be included in the notice or notices contemplated by Section 11.4; provided
that in the case of any series
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of Securities initially issued to an Issuer Trust, for so long as such
Securities are held by such Issuer Trust, such notice shall be given not less
than 45 nor more than 75 days prior to such Redemption Date (unless a shorter
notice shall be satisfactory to the Property Trustee under the related Trust
Agreement). In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities,
the Corporation shall furnish the Trustee with an Officers' Certificate and an
Opinion of Counsel evidencing compliance with such restriction.
SECTION 11.3. Selection of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.
The Trustee shall promptly notify the Corporation in writing of the
Securities selected for partial redemption and the principal amount thereof to
be redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security that has been or is to be
redeemed.
SECTION 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not later than the thirtieth day, and not earlier than the sixtieth day,
prior to the Redemption Date, to each Holder of Securities to be redeemed, at
the address of such Holder as it appears in the Securities Register, provided
that in the case of any series of Securities initially issued to an Issuer
Trust, for so long as such Securities are held by such Issuer Trust, such notice
shall be given not less than 45 nor more than 75 days prior to such Redemption
Date (unless a shorter notice shall be satisfactory to the Property Trustee
under the related Trust Agreement).
With respect to Securities of each series to be redeemed, each notice of
redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price or, if the Redemption Price cannot be calculated
prior to the time the notice is required to be sent, the estimate of the
Redemption Price together with a statement that it is an estimate and that the
actual Redemption Price will be calculated on the third Business Day prior to
the Redemption Date (and if an estimate is provided, a further notice shall be
sent of the actual Redemption Price on the date that such Redemption Price is
calculated);
(c) if less than all Outstanding Securities of such particular series are
to be redeemed, the identification (and, in the case of partial redemption, the
respective principal amounts) of the particular Securities to be redeemed;
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(d) that on the Redemption Date, the Redemption Price will become due and
payable upon each such Security or portion thereof, and that interest (including
any Additional Interest) thereon, if any, shall cease to accrue on and after
said date;
(e) the place or places where such Securities are to be surrendered for
payment of the Redemption Price;
[(f) that the redemption is for a sinking fund, if such is the case;]
(g) such other provisions as may be required in respect of the terms of a
particular series of Securities, including CUSIP Numbers.
Notice of redemption of Securities to be redeemed at the election of the
Corporation shall be given by the Corporation or, at the Corporation's request,
by the Trustee in the name and at the expense of the Corporation and shall be
irrevocable. The notice if mailed in the manner provided above shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
SECTION 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on the Redemption Date specified
in the notice of redemption given as provided in Section 11.4, the Corporation
will deposit with the Trustee or with one or more Paying Agents (or if the
Corporation is acting as its own Paying Agent, the Corporation will segregate
and hold in trust as provided in Section 10.3) an amount of money sufficient to
pay the Redemption Price of, and any accrued interest (including any Additional
Interest) on, all the Securities (or portions thereof) that are to be redeemed
on that date.
SECTION 11.6. Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in Section 11.4,
the Securities or portion of Securities with respect to which such notice has
been given shall become due and payable on the date and at the place or places
stated in such notice at the applicable Redemption Price, together with accrued
interest (including any Additional Interest) to the Redemption Date. On
presentation and surrender of such Securities at a Place of Payment in said
notice specified, the said Securities or the specified portions thereof shall be
paid and redeemed by the Corporation at the applicable Redemption Price,
together with accrued interest (including any Additional Interest) to the
Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 3.1, installments of interest (including any Additional
Interest) whose Stated Maturity is on or prior to the Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant record
dates according to their terms and the provisions of Section 3.8.
Upon presentation of any Security redeemed in part only, the Corporation
shall execute and the Trustee shall authenticate and deliver to the Holder
thereof, at the expense of the Corporation, a new
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Security or Securities of the same series, of authorized denominations, in
aggregate principal amount equal to the unredeemed portion of the Security so
presented and having the same Original Issue Date, Stated Maturity and terms.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal of and premium, if any, on such Security
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 11.7. Right of Redemption of Securities Initially Issued to an
Issuer Trust.
In the case of the Securities of a series initially issued to an Issuer
Trust, except as otherwise specified as contemplated by Section 3.1, the
Corporation, at its option, may redeem such Securities (i) on or after the date
specified in such Security, in whole at any time or in part from time to time,
or (ii) upon the occurrence and during the continuation of a Tax Event or an
Investment Company Event, at any time within 90 days following the occurrence
and during the continuation of such Tax Event or Investment Company Event, in
whole (but not in part), in each case at a Redemption Price specified in such
Security, together with accrued interest (including any Additional Interest) to
the Redemption Date.
If less than all the Securities of any such series are to be redeemed, the
aggregate principal amount of such Securities remaining Outstanding after giving
effect to such redemption shall be sufficient to satisfy any provisions of the
Trust Agreement related to the Issuer Trust to which such Securities were
issued, including any requirement in such Trust Agreement as to the minimum
Liquidation Amount (as defined in such Trust Agreement) of Capital Securities
that may be held by a holder of Capital Securities thereunder.
ARTICLE XII
SINKING FUNDS
SECTION 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 3.1 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms
of any Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any sinking fund payment in excess of such minimum amount
that is permitted to be made by the terms of such Securities of any series is
herein referred to as an "optional sinking fund payment". If provided for by the
terms of any Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 12.2. Each sinking
fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of such Securities.
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SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities.
In lieu of making all or any part of a mandatory sinking fund payment with
respect to any Securities of a series in cash, the Corporation may at its
option, at any time no more than 16 months and no less than 45 days prior to the
date on which such sinking fund payment is due, deliver to the Trustee
Securities of such series (together with the unmatured coupons, if any,
appertaining thereto) theretofore purchased or otherwise acquired by the
Corporation, except Securities of such series that have been redeemed through
the application of mandatory or optional sinking fund payments pursuant to the
terms of the Securities of such series, accompanied by a Corporation Order
instructing the Trustee to credit such obligations and stating that the
Securities of such series were originally issued by the Corporation by way of
bona fide sale or other negotiation for value; provided that the Securities to
be so credited have not been previously so credited. The Securities to be so
credited shall be received and credited for such purpose by the Trustee at the
redemption price for such Securities, as specified in the Securities so to be
redeemed, for redemption through operation of the sinking fund and the amount of
such sinking fund payment shall be reduced accordingly.
SECTION 12.3. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Corporation will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
such Securities pursuant to the terms of such Securities, the portion thereof,
if any, which is to be satisfied by payment of cash in the currency in which the
Securities of such series are payable (except as provided pursuant to Section
3.1) and the portion thereof, if any, that is to be satisfied by delivering and
crediting Securities pursuant to Section 12.2 and will also deliver to the
Trustee any Securities to be so delivered. Such Officers' Certificate shall be
irrevocable and upon its delivery the Corporation shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the
succeeding sinking fund payment date. In the case of the failure of the
Corporation to deliver such Officers' Certificate (or, as required by this
Indenture, the Securities and coupons, if any, specified in such Officers'
Certificate) by the due date therefor, the sinking fund payment due on the
succeeding sinking fund payment date for such series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of the Securities of
such series subject to a mandatory sinking fund payment without the right to
deliver or credit securities as provided in Section 12.2 and without the right
to make the optional sinking fund payment with respect to such series at such
time.
Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made with respect
to the Securities of any particular series shall be applied by the Trustee (or
by the Corporation if the Corporation is acting as its own Paying Agent) on the
sinking fund payment date on which such payment is made (or, if such payment is
made before a sinking fund payment date, on the sinking fund payment date
immediately following the date of such payment) to the redemption of Securities
of such series at the Redemption Price specified in such Securities with respect
to the sinking fund. Any sinking fund moneys not so applied or allocated by the
Trustee (or, if the Corporation is acting as its own Paying Agent, segregated
and held in trust by the Corporation as provided in Section 10.3) for such
series and together with such payment (or such amount so segregated) shall be
applied in accordance with the provisions of this Section 12.3. Any and all
sinking fund moneys with respect to the Securities of any particular series
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held by the Trustee (or if the Corporation is acting as its own Paying Agent,
segregated and held in trust as provided in Section 10.3) on the last sinking
fund payment date with respect to Securities of such series and not held for the
payment or redemption of particular Securities of such series shall be applied
by the Trustee (or by the Corporation if the Corporation is acting as its own
Paying Agent), together with other moneys, if necessary, to be deposited (or
segregated) sufficient for the purpose, to the payment of the principal of the
Securities of such series at Maturity. The Trustee shall select the Securities
to be redeemed upon such sinking fund payment date in the manner specified in
Section 11.3 and cause notice of the redemption thereof to be given in the name
of and at the expense of the Corporation in the manner provided in Section 11.4.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Section 11.6. On or before each
sinking fund payment date, the Corporation shall pay to the Trustee (or, if the
Corporation is acting as its own Paying Agent, the Corporation shall segregate
and hold in trust as provided in Section 10.3) in cash a sum in the currency in
which Securities of such series are payable (except as provided pursuant to
Section 3.1) equal to the principal (and premium, if any) and any interest
(including any Additional Interest) accrued to the Redemption Date for
Securities or portions thereof to be redeemed on such sinking fund payment date
pursuant to this Section 12.3.
Neither the Trustee nor the Corporation shall redeem any Securities of a
series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund for such series during the
continuance of a default in payment of interest, if any, on any Securities of
such series or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph) with respect to the Securities of such
series, except that if the notice of redemption shall have been provided in
accordance with the provisions hereof, the Trustee (or the Corporation, if the
Corporation is then acting as its own Paying Agent) shall redeem such Securities
if cash sufficient for that purpose shall be deposited with the Trustee (or
segregated by the Corporation) for that purpose in accordance with the terms of
this Article XII. Except as aforesaid, any moneys in the sinking fund for such
series at the time when any such default or Event of Default shall occur and any
moneys thereafter paid into such sinking fund shall, during the continuance of
such default or Event of Default, be held as security for the payment of the
Securities and coupons, if any, of such series; provided, however, that in case
such default or Event of Default shall have been cured or waived herein, such
moneys shall thereafter be applied on the next sinking fund payment date for the
Securities of such series on which such moneys may be applied pursuant to the
provisions of this Section 12.3.
ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1. Securities Subordinate to Senior Indebtedness.
The Corporation covenants and agrees, and each Holder of a Security, by
its acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article, the payment of the
principal of (and premium, if any) and interest (including any Additional
Interest) on each and all of the Securities of each and every series are hereby
expressly made subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness.
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SECTION 13.2. No Payment When Senior Indebtedness in Default; Payment Over
of Proceeds Upon Dissolution, Etc.
If the Corporation shall default in the payment of any principal of (or
premium, if any) or interest on any Senior Indebtedness when the same becomes
due and payable, whether at maturity or at a date fixed for prepayment or by
declaration of acceleration or otherwise, then, upon written notice of such
default to the Corporation by the holders of Senior Indebtedness or any trustee
therefor, unless and until such default shall have been cured or waived or shall
have ceased to exist, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) shall be made or agreed to be made on
account of the principal of (or premium, if any) or interest (including any
Additional Interest) on any of the Securities, or in respect of any redemption,
repayment, retirement, purchase or other acquisition of any of the Securities.
In the event of (a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceedings relating
to the Corporation, its creditors or its property, (b) any proceeding for the
liquidation, dissolution or other winding up of the Corporation, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings, (c)
any assignment by the Corporation for the benefit of creditors or (d) any other
marshalling of the assets of the Corporation (each such event, if any, herein
sometimes referred to as a "Proceeding"), all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings) shall
first be paid in full before any payment or distribution, whether in cash,
securities or other property, shall be made to any Holder of any of the
Securities on account thereof. Any payment or distribution, whether in cash,
securities or other property (other than securities of the Corporation or any
other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness evidenced by the
Securities, to the payment of all Senior Indebtedness at the time outstanding
and to any securities issued in respect thereof under any such plan of
reorganization or readjustment), which would otherwise (but for these
subordination provisions) be payable or deliverable in respect of the Securities
of any series shall be paid or delivered directly to the holders of Senior
Indebtedness in accordance with the priorities then existing among such holders
until all Senior Indebtedness (including any interest thereon accruing after the
commencement of any Proceeding) shall have been paid in full.
In the event of any Proceeding, after payment in full of all sums owing
with respect to Senior Indebtedness, the Holders of the Securities, together
with the holders of any obligations of the Corporation ranking on a parity with
the Securities, shall be entitled to be paid from the remaining assets of the
Corporation the amounts at the time due and owing on account of unpaid principal
of (and premium, if any) and interest on the Securities and such other
obligations before any payment or other distribution, whether in cash, property
or otherwise, shall be made on account of any capital stock or any obligations
of the Corporation ranking junior to the Securities and such other obligations.
If, notwithstanding the foregoing, any payment or distribution of any character
or any security, whether in cash, securities or other property (other than
securities of the Corporation or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), shall be
received by
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the Trustee or any Holder in contravention of any of the terms hereof and before
all Senior Indebtedness shall have been paid in full, such payment or
distribution or security shall be received in trust for the benefit of, and
shall be paid over or delivered and transferred to, the holders of the Senior
Indebtedness at the time outstanding in accordance with the priorities then
existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the Trustee or any Holder
to endorse or assign any such payment, distribution or security, each holder of
Senior Indebtedness is hereby irrevocably authorized to endorse or assign the
same.
The Trustee and the Holders shall take such action (including, without
limitation, the delivery of this Indenture to an agent for the holders of Senior
Indebtedness or consent to the filing of a financing statement with respect
hereto) as may, in the opinion of counsel designated by the holders of a
majority in principal amount of the Senior Indebtedness at the time outstanding,
be necessary or appropriate to assure the effectiveness of the subordination
effected by these provisions.
The provisions of this Section 13.2 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Corporation in
respect of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
The securing of any obligations of the Corporation, otherwise ranking on a
parity with the Securities or ranking junior to the Securities, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to the Securities.
SECTION 13.3. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent (a) the Corporation, at any time, except during
the pendency of the conditions described in the first paragraph of Section 13.2
or of any Proceeding referred to in Section 13.2, from making payments at any
time of principal of (and premium, if any) or interest (including any Additional
Interest) on the Securities, or (b) the application by the Trustee of any moneys
deposited with it hereunder to the payment of or on account of the principal of
(and premium, if any) or interest (including any Additional Interest) on the
Securities or the retention of such payment by the Holders, if, at the time of
such application by the Trustee, it did not have knowledge that such payment
would have been prohibited by the provisions of this Article.
SECTION 13.4. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all amounts due or to become due on all
Senior Indebtedness, or the provision for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, the Holders of the Securities shall be subrogated to the extent of
the payments or distributions made to the holders of such Senior Indebtedness
pursuant to the provisions of this Article (equally and ratably with the holders
of all indebtedness of the Corporation that by its express terms is subordinated
to Senior Indebtedness of the Corporation to substantially the same extent as
the Securities are subordinated to the Senior Indebtedness and is entitled to
like rights of subrogation by reason of any payments or distributions made to
holders of such Senior Indebtedness) to the rights
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of the holders of such Senior Indebtedness to receive payments and distributions
of cash, property and securities applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest (including any Additional
Interest) on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as among the Corporation, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment or
distribution by the Corporation to or on account of the Senior Indebtedness.
SECTION 13.5. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Indebtedness on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall (a) impair, as between the Corporation and the Holders of the
Securities, the obligations of the Corporation, which are absolute and
unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any) and interest (including any Additional Interest) on the
Securities as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights against the Corporation of the
Holders of the Securities and creditors of the Corporation other than their
rights in relation to the holders of Senior Indebtedness; or (c) prevent the
Trustee or the Holder of any Security (or to the extent expressly provided
herein, the holder of any Capital Security) from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
including filing and voting claims in any Proceeding, subject to the rights, if
any, under this Article of the holders of Senior Indebtedness to receive cash,
property and securities otherwise payable or deliverable to the Trustee or such
Holder.
SECTION 13.6. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof authorizes and
directs the Trustee on his or her behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
SECTION 13.7. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the
Corporation or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Corporation with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof that any such
holder may have or be otherwise charged with.
Without in any way limiting the generality of the immediately preceding
paragraph, the holders of Senior Indebtedness may, at any time and from to time,
without the consent of or notice to the Trustee or the Holders of the Securities
of any series, without incurring responsibility to such Holders
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of the Securities and without impairing or releasing the subordination provided
in this Article or the obligations hereunder of such Holders of the Securities
to the holders of Senior Indebtedness, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Senior Indebtedness, or otherwise amend or supplement in any
manner Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (iii) release any Person liable in any manner for
the collection of Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Corporation and any other Person.
SECTION 13.8. Notice to Trustee.
The Corporation shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Corporation that would prohibit the
making of any payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts that would prohibit the making of any payment to or by the Trustee in
respect of the Securities, unless and until a Responsible Officer of the Trustee
shall have received written notice thereof from the Corporation or a holder of
Senior Indebtedness or from any trustee, agent or representative therefor;
provided, however, that if the Trustee shall not have received the notice
provided for in this Section at least two Business Days prior to the date upon
which by the terms hereof any monies may become payable for any purpose
(including, the payment of the principal of (and premium, if any, on) or
interest (including any Additional Interest) on any Security), then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such monies and to apply the same to the purpose
for which they were received and shall not be affected by any notice to the
contrary that may be received by it within two Business Days prior to such date.
Subject to the provisions of Section 6.1, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
or herself to be a holder of Senior Indebtedness (or a trustee or
attorney-in-fact therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee or attorney-in-fact therefor). In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 13.9. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Corporation referred to
in this Article, the Trustee, subject to the provisions of Section 6.1, and the
Holders of the Securities shall be entitled to conclusively rely upon any order
or decree entered by any court of competent jurisdiction in which such
Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or
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distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Corporation, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article.
SECTION 13.10. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall
not be liable to any such holders if it shall in good faith mistakenly pay over
or distribute to Holders of Securities or to the Corporation or to any other
Person cash, property or securities to which any holders of Senior Indebtedness
shall be entitled by virtue of this Article or otherwise.
SECTION 13.11. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness that may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
SECTION 13.12. Article Applicable to Paying Agents.
If at any time any Paying Agent other than the Trustee shall have been
appointed by the Corporation and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee.
* * * *
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
CSC HOLDINGS, INC.
By:
-----------------------------------
Name:
Title:
Attest:
-----------------------------
THE BANK OF NEW YORK,
as Trustee and not in its individual
capacity
By:
-----------------------------------
Name:
Title:
<PAGE>
Exhibit 4.15
CSC CAPITAL I
TRUST AGREEMENT
THIS TRUST AGREEMENT, dated as of December 9, 1998, is by and
between CSC Holdings, Inc., a Delaware corporation (the "Depositor"), and Bank
of New York (Delaware), a Delaware banking corporation, as Delaware trustee (the
"Delaware Trustee"). The Depositor and the Delaware Trustee hereby agree as
follows:
1. The trust created hereby (the "Trust") shall be known as "CSC
Capital I".
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Delaware Trustee the sum of $10. The Delaware Trustee hereby acknowledges
receipt of such amount in trust from the Depositor, which amount shall
constitute the initial trust estate. The Delaware Trustee hereby declares that
it will hold the trust estate in trust for the Depositor. It is the intention of
the parties hereto that the Trust created hereby constitute a business trust
under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. ss. 3801 et seq.
(the "Business Trust Act"), and that this document constitute the governing
instrument of the Trust. The Delaware Trustee is hereby authorized and directed
to execute and file a certificate of trust with the Delaware Secretary of State
in accordance with the provisions of the Business Trust Act.
3. The Depositor and the Delaware Trustee will enter into an amended
and restated Trust Agreement, satisfactory to each such party and substantially
in the form to be included as an Exhibit to the Registration Statement referred
to below, to provide for the contemplated operation of the Trust created hereby
and the issuance of the Preferred Securities and Common Securities referred to
therein. Prior to the execution and delivery of such amended and restated Trust
Agreement, the Delaware Trustee shall not have any duty or obligation hereunder
or with respect to the trust estate, except as otherwise required by applicable
law or as may be necessary to obtain prior to such execution and delivery any
licenses, consents or approvals required by applicable law or otherwise.
4. The Depositor and the Delaware Trustee hereby authorize and
direct the Depositor, in each case on behalf of the Trust as the sponsor of the
Trust, (i) to execute and file with the Securities and Exchange Commission (the
"Commission") (a) a Registration Statement on Form S-3 (the "Registration
Statement") and any pre-effective or post-effective amendments to such
Registration Statement, relating to the registration under the Securities Act of
1933, as amended, of the Capital Securities of the Trust, and (b) a Registration
Statement on Form 8-A (the "1934 Act Registration Statement") (including all
pre-effective and post-effective amendments thereto) relating to the
registration of the Capital Securities of the Trust under Section 12(b) of the
Securities Exchange Act of 1934, as amended; (ii) to execute and file with the
New York Stock Exchange, the American Stock Exchange or such other national
securities exchange or the
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<PAGE>
Nasdaq National Market, as the Depositor shall determine, a listing or similar
application and all other applications, statements, certificates, agreements and
other instruments as shall be necessary or desirable to cause the Preferred
Securities to be listed or approved for quotation on the New York Stock
Exchange, the American Stock Exchange or such other national securities exchange
or the Nasdaq National Market; (iii) to execute and file such applications,
reports, surety bonds, irrevocable consents, appointments of attorneys for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities or "Blue
Sky" laws of such jurisdictions as the Depositor on behalf of the Trust, may
deem necessary or desirable and (iv) to execute on behalf of the Trust such
purchase agreements or underwriting agreements relating to the Preferred
Securities as the Depositor may deem necessary or desirable. It is hereby
acknowledged and agreed that in connection with any filing referred to in
clauses (i)-(iii) above, the Delaware Trustee shall not be required to join in
any such filing or execute on behalf of the Trust any such document unless
required by the rules and regulations of the Commission, the New York Stock
Exchange, American Stock Exchange (other national securities exchange) or the
Nasdaq National Market or state securities or "Blue Sky" laws, and in such case
only to the extent so required. In connection with all of the foregoing, the
Depositor hereby constitutes and appoints Andrew Rosengard and John Bier, and
each of them, as its true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for the Depositor in the Depositor's
name, place and stead, in any and all capacities, to sign and file with the
Commission (i) the Registration Statement and the 1934 Act Registration
Statement and any and all amendments (including post-effective amendments) to
the Registration Statement and the 1934 Act Registration Statement with all
exhibits thereto, and other documents in connection therewith, and (ii) a
registration statement and any and all amendments thereto filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended, with all exhibits thereto,
and all other documents in connection therewith, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as the Depositor might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or his substitute or substitutes, shall do or cause to be done by virtue
hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees initially shall be one (1) and thereafter
the number of trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Depositor which may increase or decrease
the number of trustees; provided that to the extent required by the Business
Trust Act, one trustee shall either be a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its principal
place of business in the State of Delaware. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause the Delaware Trustee at
any time. The Delaware Trustee may resign upon thirty days prior notice to the
Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without regard to conflict
of laws principles.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
CSC HOLDINGS, INC.,
as Depositor
By:
--------------------------------------
Name:
Title:
BANK OF NEW YORK (DELAWARE),
as Delaware trustee
By:
--------------------------------------
Name:
Title:
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
CSC HOLDINGS, INC.,
as Depositor
By:
--------------------------------------
Name:
Title:
BANK OF NEW YORK (DELAWARE),
as Delaware trustee
By: /s/ Frederick W. Clark
--------------------------------------
Name: FREDERICK W. CLARK
Title: Authorized Signatory
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
CSC HOLDINGS, INC.,
as Depositor
By: [ILLEGIBLE]
--------------------------------------
Name:
Title:
BANK OF NEW YORK (DELAWARE),
as Delaware trustee
By:
--------------------------------------
Name:
Title:
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<PAGE>
Exhibit 4.16
CSC CAPITAL II
TRUST AGREEMENT
THIS TRUST AGREEMENT, dated as of December 9, 1998, is by and
between CSC Holdings, Inc., a Delaware corporation (the "Depositor"), and Bank
of New York (Delaware), a Delaware banking corporation, as Delaware trustee (the
"Delaware Trustee"). The Depositor and the Delaware Trustee hereby agree as
follows:
1. The trust created hereby (the "Trust") shall be known as "CSC
Capital II".
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Delaware Trustee the sum of $10. The Delaware Trustee hereby acknowledges
receipt of such amount in trust from the Depositor, which amount shall
constitute the initial trust estate. The Delaware Trustee hereby declares that
it will hold the trust estate in trust for the Depositor. It is the intention of
the parties hereto that the Trust created hereby constitute a business trust
under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. ss. 3801 et seq.
(the "Business Trust Act"), and that this document constitute the governing
instrument of the Trust. The Delaware Trustee is hereby authorized and directed
to execute and file a certificate of trust with the Delaware Secretary of State
in accordance with the provisions of the Business Trust Act.
3. The Depositor and the Delaware Trustee will enter into an amended
and restated Trust Agreement, satisfactory to each such party and substantially
in the form to be included as an Exhibit to the Registration Statement referred
to below, to provide for the contemplated operation of the Trust created hereby
and the issuance of the Preferred Securities and Common Securities referred to
therein. Prior to the execution and delivery of such amended and restated Trust
Agreement, the Delaware Trustee shall not have any duty or obligation hereunder
or with respect to the trust estate, except as otherwise required by applicable
law or as may be necessary to obtain prior to such execution and delivery any
licenses, consents or approvals required by applicable law or otherwise.
4. The Depositor and the Delaware Trustee hereby authorize and
direct the Depositor, in each case on behalf of the Trust as the sponsor of the
Trust, (i) to execute and file with the Securities and Exchange Commission (the
"Commission") (a) a Registration Statement on Form S-3 (the "Registration
Statement") and any pre-effective or post-effective amendments to such
Registration Statement, relating to the registration under the Securities Act of
1933, as amended, of the Capital Securities of the Trust, and (b) a Registration
Statement on Form 8-A (the "1934 Act Registration Statement") (including all
pre-effective and post-effective amendments thereto) relating to the
registration of the Capital Securities of the Trust under Section 12(b) of the
Securities Exchange Act of 1934, as amended; (ii) to execute and file with the
New York Stock Exchange, the American Stock Exchange or such other national
securities exchange or the Nasdaq National Market, as the Depositor shall
determine, a listing or similar application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed or approved for
quotation on the New York Stock Exchange, the American Stock Exchange or such
other national securities exchange or the
-1-
<PAGE>
Nasdaq National Market; (iii) to execute and file such applications, reports,
surety bonds, irrevocable consents, appointments of attorneys for service of
process and other papers and documents as shall be necessary or desirable to
register the Preferred Securities under the securities or "Blue Sky" laws of
such jurisdictions as the Depositor on behalf of the Trust, may deem necessary
or desirable and (iv) to execute on behalf of the Trust such purchase agreements
or underwriting agreements relating to the Preferred Securities as the Depositor
may deem necessary or desirable. It is hereby acknowledged and agreed that in
connection with any filing referred to in clauses (i)-(iii) above, the Delaware
Trustee shall not be required to join in any such filing or execute on behalf of
the Trust any such document unless required by the rules and regulations of the
Commission, the New York Stock Exchange, American Stock Exchange (other national
securities exchange) or the Nasdaq National Market or state securities or "Blue
Sky" laws, and in such case only to the extent so required. In connection with
all of the foregoing, the Depositor hereby constitutes and appoints Andrew
Rosengard and John Bier, and each of them, as its true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the Depositor in the Depositor's name, place and stead, in
any and all capacities, to sign and file with the Commission (i) the
Registration Statement and the 1934 Act Registration Statement and any and all
amendments (including post-effective amendments) to the Registration Statement
and the 1934 Act Registration Statement with all exhibits thereto, and other
documents in connection therewith, and (ii) a registration statement and any and
all amendments thereto filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, with all exhibits thereto, and all other documents in
connection therewith, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as the Depositor might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or his substitute or
substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees initially shall be one (1) and thereafter
the number of trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Depositor which may increase or decrease
the number of trustees; provided that to the extent required by the Business
Trust Act, one trustee shall either be a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its principal
place of business in the State of Delaware. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause the Delaware Trustee at
any time. The Delaware Trustee may resign upon thirty days prior notice to the
Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without regard to conflict
of laws principles.
-2-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
CSC HOLDINGS, INC.,
as Depositor
By:
--------------------------------------
Name:
Title:
BANK OF NEW YORK (DELAWARE),
as Delaware trustee
By:
--------------------------------------
Name:
Title:
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
CSC HOLDINGS, INC.,
as Depositor
By:
--------------------------------------
Name:
Title:
BANK OF NEW YORK (DELAWARE),
as Delaware trustee
By: /s/ Frederick W. Clark
--------------------------------------
Name: FREDERICK W. CLARK
Title: Authorized Signatory
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
CSC HOLDINGS, INC.,
as Depositor
By:/s/ [ILLEGIBLE]
--------------------------------------
Name:
Title:
BANK OF NEW YORK (DELAWARE),
as Delaware trustee
By:
--------------------------------------
Name:
Title:
-3-
<PAGE>
Exhibit 4.17
CSC CAPITAL III
TRUST AGREEMENT
THIS TRUST AGREEMENT, dated as of December 9, 1998, is by and
between CSC Holdings, Inc., a Delaware corporation (the "Depositor"), and Bank
of New York (Delaware), a Delaware banking corporation, as Delaware trustee (the
"Delaware Trustee"). The Depositor and the Delaware Trustee hereby agree as
follows:
1. The trust created hereby (the "Trust") shall be known as "CSC
Capital III".
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Delaware Trustee the sum of $10. The Delaware Trustee hereby acknowledges
receipt of such amount in trust from the Depositor, which amount shall
constitute the initial trust estate. The Delaware Trustee hereby declares that
it will hold the trust estate in trust for the Depositor. It is the intention of
the parties hereto that the Trust created hereby constitute a business trust
under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. ss. 3801 et seq.
(the "Business Trust Act"), and that this document constitute the governing
instrument of the Trust. The Delaware Trustee is hereby authorized and directed
to execute and file a certificate of trust with the Delaware Secretary of State
in accordance with the provisions of the Business Trust Act.
3. The Depositor and the Delaware Trustee will enter into an amended
and restated Trust Agreement, satisfactory to each such party and substantially
in the form to be included as an Exhibit to the Registration Statement referred
to below, to provide for the contemplated operation of the Trust created hereby
and the issuance of the Preferred Securities and Common Securities referred to
therein. Prior to the execution and delivery of such amended and restated Trust
Agreement, the Delaware Trustee shall not have any duty or obligation hereunder
or with respect to the trust estate, except as otherwise required by applicable
law or as may be necessary to obtain prior to such execution and delivery any
licenses, consents or approvals required by applicable law or otherwise.
4. The Depositor and the Delaware Trustee hereby authorize and
direct the Depositor, in each case on behalf of the Trust as the sponsor of the
Trust, (i) to execute and file with the Securities and Exchange Commission (the
"Commission") (a) a Registration Statement on Form S-3 (the "Registration
Statement") and any pre-effective or post-effective amendments to such
Registration Statement, relating to the registration under the Securities Act of
1933, as amended, of the Capital Securities of the Trust, and (b) a Registration
Statement on Form 8-A (the "1934 Act Registration Statement") (including all
pre-effective and post-effective amendments thereto) relating to the
registration of the Capital Securities of the Trust under Section 12(b) of the
Securities Exchange Act of 1934, as amended; (ii) to execute and file with the
New York Stock Exchange, the American Stock Exchange or such other national
securities exchange or the
-1-
<PAGE>
Nasdaq National Market, as the Depositor shall determine, a listing or similar
application and all other applications, statements, certificates, agreements and
other instruments as shall be necessary or desirable to cause the Preferred
Securities to be listed or approved for quotation on the New York Stock
Exchange, the American Stock Exchange or such other national securities exchange
or the Nasdaq National Market; (iii) to execute and file such applications,
reports, surety bonds, irrevocable consents, appointments of attorneys for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities or "Blue
Sky" laws of such jurisdictions as the Depositor on behalf of the Trust, may
deem necessary or desirable and (iv) to execute on behalf of the Trust such
purchase agreements or underwriting agreements relating to the Preferred
Securities as the Depositor may deem necessary or desirable. It is hereby
acknowledged and agreed that in connection with any filing referred to in
clauses (i)-(iii) above, the Delaware Trustee shall not be required to join in
any such filing or execute on behalf of the Trust any such document unless
required by the rules and regulations of the Commission, the New York Stock
Exchange, American Stock Exchange (other national securities exchange) or the
Nasdaq National Market or state securities or "Blue Sky" laws, and in such case
only to the extent so required. In connection with all of the foregoing, the
Depositor hereby constitutes and appoints Andrew Rosengard and John Bier, and
each of them, as its true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for the Depositor in the Depositor's
name, place and stead, in any and all capacities, to sign and file with the
Commission (i) the Registration Statement and the 1934 Act Registration
Statement and any and all amendments (including post-effective amendments) to
the Registration Statement and the 1934 Act Registration Statement with all
exhibits thereto, and other documents in connection therewith, and (ii) a
registration statement and any and all amendments thereto filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended, with all exhibits thereto,
and all other documents in connection therewith, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as the Depositor might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or his substitute or substitutes, shall do or cause to be done by virtue
hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees initially shall be one (1) and thereafter
the number of trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Depositor which may increase or decrease
the number of trustees; provided that to the extent required by the Business
Trust Act, one trustee shall either be a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its principal
place of business in the State of Delaware. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause the Delaware Trustee at
any time. The Delaware Trustee may resign upon thirty days prior notice to the
Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without regard to conflict
of laws principles.
-2-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
CSC HOLDINGS, INC.,
as Depositor
By:
--------------------------------------
Name:
Title:
BANK OF NEW YORK (DELAWARE),
as Delaware trustee
By:
--------------------------------------
Name:
Title:
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
CSC HOLDINGS, INC.,
as Depositor
By:
--------------------------------------
Name:
Title:
BANK OF NEW YORK (DELAWARE),
as Delaware trustee
By: /s/ Frederick W. Clark
--------------------------------------
Name: FREDERICK W. CLARK
Title: Authorized Signatory
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
CSC HOLDINGS, INC.,
as Depositor
By:/s/ [ILLEGIBLE]
--------------------------------------
Name:
Title:
BANK OF NEW YORK (DELAWARE),
as Delaware trustee
By:
--------------------------------------
Name:
Title:
-3-
<PAGE>
Exhibit 4.18
S&C Draft of March 26, 1999
================================================================================
AMENDED AND RESTATED TRUST AGREEMENT
among
CSC HOLDINGS, INC.,
as Depositor
THE BANK OF NEW YORK,
as Property Trustee
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
and the several Holders of the Trust Securities
------------------
Dated as of [ ], 1999
------------------
CSC CAPITAL I
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINED TERMS
SECTION 1.1. Definitions......................................................1
ARTICLE II.
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name............................................................12
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business.....13
SECTION 2.3. Initial Contribution of Trust Property; Organizational Expenses.13
SECTION 2.4. Issuance of the Capital Securities..............................13
SECTION 2.5. Issuance of the Common Securities;
Subscription and Purchase of Debentures....................13
SECTION 2.6. Continuation of Trust...........................................14
SECTION 2.7. Authorization to Enter into Certain Transactions................14
SECTION 2.8. Assets of Trust.................................................18
SECTION 2.9. Title to Trust Property.........................................18
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.................................................18
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions...................................................19
SECTION 4.2. Redemption......................................................20
SECTION 4.3. Subordination of Common Securities..............................22
SECTION 4.4. Payment Procedures..............................................23
SECTION 4.5. Withholding Tax.................................................24
i
<PAGE>
SECTION 4.6. Tax Returns and Reports.........................................24
SECTION 4.7. Payment of Taxes, Duties, Etc. of the Issuer Trust..............24
SECTION 4.8. Payments under Indenture or Pursuant to Direct Actions..........24
SECTION 4.9. Liability of the Holder of Common Securities....................25
SECTION 4.10. Other Purchases of Preferred Securities.........................25
ARTICLE V.
SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership...............................................25
SECTION 5.2. The Securities Certificates.....................................25
SECTION 5.3. Execution and Delivery of Securities Certificates...............26
SECTION 5.4. Book-Entry Capital Securities...................................26
SECTION 5.5. Registration of Transfer and Exchange of Capital Securities
Certificates...................................................28
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Securities Certificates....30
SECTION 5.7. Persons Deemed Holders..........................................30
SECTION 5.8. Access to List of Holders' Names and Addresses..................30
SECTION 5.9. Maintenance of Office or Agency.................................31
SECTION 5.10. Appointment of Paying Agents....................................31
SECTION 5.11. Ownership of Common Securities by Depositor.....................31
SECTION 5.12. Notices to Clearing Agency......................................32
SECTION 5.13. Rights of Holders; Waivers of Past Defaults.....................32
ii
<PAGE>
ARTICLE VI.
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights....................................34
SECTION 6.2. Notice of Meetings..............................................35
SECTION 6.3. Meetings of Holders of the Capital Securities...................35
SECTION 6.4. Voting Rights...................................................36
SECTION 6.5. Proxies, etc....................................................36
SECTION 6.6. Holder Action by Written Consent................................36
SECTION 6.7. Record Date for Voting and Other Purposes.......................37
SECTION 6.8. Acts of Holders.................................................37
SECTION 6.9. Inspection of Records...........................................38
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property
Trustee and the Delaware Trustee.............................38
SECTION 7.2. Representations and Warranties of Depositor.....................40
ARTICLE VIII.
THE ISSUER TRUSTEES; THE ADMINISTRATORS
SECTION 8.1. Certain Duties and Responsibilities.............................40
SECTION 8.2. Certain Notices.................................................43
SECTION 8.3. Certain Rights of Property Trustee..............................43
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities..........45
SECTION 8.5. May Hold Securities.............................................45
SECTION 8.6. Compensation; Indemnity; Fees...................................46
SECTION 8.7. Corporate Property Trustee Required;
Eligibility of Issuer Trustees and Administrators..........47
SECTION 8.8. Conflicting Interests...........................................48
SECTION 8.9. Co-Trustees and Separate Trustee................................48
SECTION 8.10. Resignation and Removal; Appointment of Successor...............49
SECTION 8.11. Acceptance of Appointment by Successor..........................51
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business.....51
SECTION 8.13. Preferential Collection of Claims Against Depositor
or Issuer Trust ...........................................52
SECTION 8.14. Property Trustee May File Proofs of Claim.......................52
SECTION 8.15. Reports by Property Trustee.....................................53
SECTION 8.16. Reports to the Property Trustee.................................53
SECTION 8.17. Evidence of Compliance with Conditions Precedent................54
SECTION 8.18. Number of Issuer Trustees.......................................54
SECTION 8.19. Delegation of Power.............................................54
SECTION 8.20. Appointment of Administrators...................................54
ARTICLE IX.
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date................................55
SECTION 9.2. Early Dissolution...............................................55
SECTION 9.3. Termination.....................................................56
-iii-
<PAGE>
SECTION 9.4. Liquidation.....................................................56
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of Issuer Trust...............................57
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders................................59
SECTION 10.2. Agreed Tax Treatment of Issuer Trust and Trust Securities......59
SECTION 10.3. Amendment......................................................59
SECTION 10.4. Separability...................................................61
SECTION 10.5. Governing Law..................................................61
SECTION 10.6. Payments Due on Non-Business Day...............................62
SECTION 10.7. Successors.....................................................62
SECTION 10.8. Headings.......................................................62
SECTION 10.9. Reports, Notices and Demands...................................62
SECTION 10.10. Agreement Not to Petition......................................63
SECTION 10.11. Trust Indenture Act; Conflict with Trust Indenture Act.........63
SECTION 10.12. Acceptance of Terms of Trust Agreement,
Guarantee Agreement and Indenture............................64
Exhibit A Certificate of Trust of CSC I Capital
Exhibit B Form of Letter of Representations
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Expense Agreement
Exhibit E Form of Capital Securities Certificate
iv
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of [ ], 1999, among
(i) CSC Holdings, Inc., a Delaware corporation (including any successors or
assigns, the "Depositor"), (ii) The Bank of New York, a New York banking
corporation, as property trustee (in such capacity, the "Property Trustee",
(iii) The Bank of New York (Delaware), a Delaware banking corporation, as
Delaware trustee (in such capacity, the "Delaware Trustee") (the Property
Trustee and the Delaware Trustee being referred to collectively as the "Issuer
Trustees"), and (iv) the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor and the Delaware Trustee have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by entering into a Trust Agreement, dated as of December __, 1998 (the
"Original Trust Agreement"), and by the execution and filing by the Delaware
Trustee with the Secretary of State of the State of Delaware of the Certificate
of Trust, filed on December 9, 1998, attached as Exhibit A; and
WHEREAS, the Depositor and the Issuer Trustees desire to amend and restate
the Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Issuer
Trust to the Depositor, (ii) the issuance and sale of the Capital Securities by
the Issuer Trust pursuant to the Underwriting Agreement, (iii) the acquisition
by the Issuer Trust from the Depositor of all of the right, title and interest
in the Debentures, and (iv) the appointment of the Administrators;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I.
DEFINED TERMS
SECTION 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
<PAGE>
(b) All other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) The words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles;
(e) Unless the context otherwise requires, any reference to an
"Article", a "Section" or an "Exhibit" refers to an Article, a Section or
an Exhibit, as the case may be, of or to this Trust Agreement; and
(f) The words "hereby", "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and not
to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Additional Taxes" has the meaning specified in Section 1.1 of the
Indenture.
"Administrators" means each Person appointed in accordance with Section
8.20 solely in such Person's capacity as Administrator of the Issuer Trust
heretofore created and continued hereunder and not in such Person's individual
capacity, or any successor Administrator appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Book-Entry Capital Security, the rules and procedures of the
Clearing Agency for such Book-
2
<PAGE>
Entry Capital Security, in each case to the extent applicable to such
transaction and as in effect from time to time.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in the
premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such Person under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law, or appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of such Person or of any
substantial part of its property or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law, or the consent by it to the filing of any such petition
or to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or similar official) of such Person or of any substantial
part of its property, or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due and its willingness to be
adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.10.
"Board of Directors" means the board of directors of the Depositor or the
Executive Committee of the board of directors of the Depositor (or any other
committee of the board of directors of the Depositor performing similar
functions) or a committee designated by the board of directors of the Depositor
(or any such committee), comprised of two or more members of the board of
directors of the Depositor or officers of the Depositor, or both.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Depositor to have been duly adopted by the
Depositor's Board of Directors, or officers of the Depositor to which authority
to act on behalf of the Board of Directors has been delegated and to be in full
force and effect on the date of such certification, and delivered to the Issuer
Trustees.
"Book-Entry Capital Security" means a Capital Security, the ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 5.4.
3
<PAGE>
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a day
on which banking institutions in The City of New York are authorized or required
by law or executive order to remain closed or (c) a day on which the Property
Trustee's Corporate Trust Office or the Corporate Trust Office of the Debenture
Trustee is closed for business.
"Capital Security" means an undivided beneficial interest in the assets of
the Issuer Trust, having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution to the extent provided herein.
"Capital Securities Certificate" means a certificate evidencing ownership
of Capital Securities, substantially in the form attached as Exhibit E.
"Cedel" means Cedel Bank, societe anonyme (or any successor securities
clearing agency).
"Certificate Depository Agreement" means the agreement among the Issuer
Trust, the Depositor and DTC, as the initial Clearing Agency, dated as of the
Closing Date, substantially in the form attached as Exhibit B, as the same may
be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act. DTC will be the initial Clearing
Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the Time of Delivery, which date is also the date of
execution and delivery of this Trust Agreement.
"Code" means the United States Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Securities and Exchange Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing ownership
of Common Securities, substantially in the form attached as Exhibit C.
4
<PAGE>
"Common Security" means an undivided beneficial interest in the assets of
the Issuer Trust, having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution to the extent provided herein.
"Common Securities Default" has the meaning specified in Section 4.3(b).
"Corporate Trust Office" means (i) when used with respect to the Property
Trustee, the principal corporate trust office of the Property Trustee located in
the City of New York, which at the time of the execution of this Trust Agreement
is located at 101 Barclay Street, Floor 21 West, New York, New York 10286;
Attention: Corporate Trust Administration.
"Debenture Event of Default" means any "Event of Default" specified in
Section 5.1 of the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption of such Debentures
under the Indenture, including any date fixed for redemption pursuant to the
exercise by the Depositor of its optional right to redeem the Debentures prior
to their stated maturity either (i) in whole or in part after a certain date
specified in the applicable prospectus supplement or (ii) in whole but not in
part after the occurrence of a Tax Event or an Investment Company Act Event.
"Debenture Trustee" means the Person identified as the "Trustee" in the
Indenture, solely in its capacity as Trustee pursuant to the Indenture and not
in its individual capacity, or its successor in interest in such capacity, or
any successor Trustee appointed as provided in the Indenture.
"Debentures" means the Depositor's [ ]% Junior Subordinated Debentures
issued pursuant to the Indenture.
"Definitive Capital Securities Certificates" means either or both (as the
context requires) of (i) Capital Securities Certificates issued as Global
Capital Securities as provided in Section 5.2 or 5.4, and (ii) Capital
Securities Certificates issued in certificated, fully registered form as
provided in Section 5.2, 5.4 or 5.5.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code ss. 3801 et seq., or any successor statute thereto, in each
case as amended from time to time.
"Delaware Trustee" means the Person identified as the "Delaware Trustee"
in the preamble to this Trust Agreement, solely in its capacity as Delaware
Trustee of the trust heretofore created and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor Delaware trustee appointed as herein provided.
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"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust Securities
as provided in Section 4.1.
"DTC" means The Depository Trust Company or any successor thereto.
"Early Dissolution Event" has the meaning specified in Section 9.2.
"ERISA" means the Employee Retirement Income Security Act of 1974, and any
successor statute thereto, in each case as amended from time to time.
"Euroclear" means the Euroclear Clearance System (or any successor
securities clearing agency), as operated by Morgan Guaranty Trust Company of New
York, Brussels office.
"European Capital Securities" means Capital Securities that are sold to
investors in Europe and settled through Euroclear and Cedel.
"Event of Default" means any one of the following events (whatever the
reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Issuer Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of
30 days; or
(c) default by the Issuer Trust in the payment of any Redemption Price of
any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Issuer Trustees in this Trust Agreement (other
than those specified in clause (b) or (c) above) and continuation of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Issuer Trustees and to the Depositor
by the Holders of at least 25% in aggregate Liquidation Amount of the
Outstanding Capital Securities a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
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(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee if a successor Property Trustee has not been appointed within 90
days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, and any
successor statute thereto, in each case as amended from time to time.
"Expense Agreement" means the Agreement as to Expenses and Liabilities,
dated as of the Closing Date, between the Depositor, in its capacity as holder
of the Common Securities, and the Issuer Trust, substantially in the form
attached as Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Extension Period" has the meaning specified in Section 3.12. of the
Indenture.
"Global Capital Security" means a Capital Securities Certificate
evidencing ownership of Book-Entry Capital Securities.
"Guarantee Agreement" means the Guarantee Agreement executed and delivered
by the Depositor and The Bank of New York, as guarantee trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the holders of the Capital Securities, as amended from time to
time.
"Holder" means a Person in whose name a Trust Security or Trust Securities
are registered in the Securities Register; any such Person shall be deemed to be
a beneficial owner within the meaning of the Delaware Business Trust Act.
"Indenture" means the Junior Subordinated Indenture, dated as of April 1,
1999, between the Depositor and the Debenture Trustee, as trustee, as amended or
supplemented from time to time.
"Investment Company Act" means the Investment Company Act of 1940, or any
successor statute thereto, in each case as amended from time to time.
"Investment Company Act Event" means the receipt by the Issuer Trust of an
Opinion of Counsel experienced in such matters to the effect that, as a result
of the occurrence of a change in law or regulation or a written change
(including any announced prospective change) in interpretation or application of
law or regulation by any legislative body, court, governmental agency or
regulatory authority, there is more than an insubstantial risk that the Issuer
Trust is or will be considered an "investment company" that is required to be
registered under the Investment Company Act, which change or prospective change
becomes effective or would become effective, as the case may be, on or after the
date of the issuance of the Capital Securities.
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"Issuer Trust" means the Delaware business trust known as "CSC Capital I"
which was formed on December 9, 1998 under the Delaware Business Trust Act
pursuant to the Original Trust Agreement and the filing of the Certificate of
Trust, and continued pursuant to this Trust Agreement.
"Issuer Trustees" has the meaning specified in the preamble to this Trust
Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of any Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Debentures to be contemporaneously redeemed in accordance with the
Indenture, the proceeds of which will be used to pay the Redemption Price of
such Trust Securities, (b) with respect to a distribution of Debentures to
Holders of Trust Securities in connection with a dissolution or liquidation of
the Issuer Trust, Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such Debentures are
distributed, and (c) with respect to any distribution of Additional Amounts to
Holders of Trust Securities, Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities in respect of which such distribution
is made.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date of liquidation of the Issuer Trust
pursuant to Section 9.4.
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Majority in Liquidation Amount of the Capital Securities" or "Majority in
Liquidation Amount of the Common Securities" means, except as provided by the
Trust Indenture Act, Capital Securities or Common Securities, as the case may
be, representing more than 50% of the aggregate Liquidation Amount of all then
Outstanding Capital Securities or Common Securities, as the case may be.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman, the Chief Executive Officer, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Depositor, and delivered to the Issuer Trustees. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Trust Agreement shall include:
(a) a statement by each officer signing the Officers' Certificate that
such officer has read the covenant or condition and the definitions
relating thereto;
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(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers'
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Depositor or any Affiliate of the Depositor.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee
or any Paying Agent; provided that, if such Trust Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Trust Agreement; and
(c) Trust Securities that have been paid or in exchange for or in lieu of
which other Trust Securities have been executed and delivered pursuant to
Sections 5.4, 5.5, 5.6 and 5.11;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Capital Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Capital
Securities owned by the Depositor, any Issuer Trustee, any Administrator or any
Affiliate of the Depositor, any Issuer Trustee or any Administrator shall be
disregarded and deemed not to be Outstanding, except that (a) in determining
whether any Issuer Trustee or any Administrator shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Capital Securities that a Responsible Officer of such Issuer
Trustee or such Administrator, as the case may be, actually knows to be so owned
shall be so disregarded, and (b) the foregoing shall not apply at any time when
all of the Outstanding Capital Securities are owned by the Depositor, one or
more of the Issuer Trustees, one or more of the Administrators and/or any such
Affiliate. Capital Securities so owned that have been pledged in good faith may
be regarded as Outstanding
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if the pledgee establishes to the satisfaction of the Administrators the
pledgee's right so to act with respect to such Capital Securities and that the
pledgee is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of Book-Entry
Capital Securities as reflected in the records of the Clearing Agency or, if a
Clearing Agency Participant is not the Owner, then as reflected in the records
of a Person maintaining an account with such Clearing Agency (directly or
indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.10 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee in its trust department for the
benefit of the Holders in which all amounts paid in respect of the Debentures
will be held and from which the Property Trustee, through the Paying Agent,
shall make payments to the Holders in accordance with Sections 4.1 and 4.2.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, company,
limited liability company, trust, unincorporated association, or government or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"Property Trustee" means the Person identified as the "Property Trustee"
in the preamble to this Trust Agreement, solely in its capacity as Property
Trustee of the trust heretofore formed and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the stated maturity
of the Debentures shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debentures.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Responsible Officer", when used with respect to the Property Trustee or
Issuer Trustee, means any officer assigned to the Corporate Trust Office,
including any vice president, assistant vice president, assistant treasurer,
assistant secretary or any other officer of the Property Trustee
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customarily performing functions similar to those performed by any of the above
designated officers and having direct responsibility for the administration of
this Trust Agreement, and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge of
and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, and any successor
statute thereto, in each case as amended from time to time.
"Securities Certificate" means any one of the Common Securities
Certificates or the Capital Securities Certificates.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.5.
"Successor Capital Securities" of any particular Capital Securities
Certificate means every Capital Securities Certificate issued after, and
evidencing all or a portion of the same beneficial interest in the Issuer Trust
as that evidenced by, such particular Capital Securities Certificate; and, for
the purposes of this definition, any Capital Securities Certificate executed and
delivered under Section 5.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Capital Securities Certificate shall be deemed to
evidence the same beneficial interest in the Issuer Trust as the mutilated,
destroyed, lost or stolen Capital Securities Certificate.
"Tax Event" means the receipt by the Issuer Trust of an Opinion of Counsel
experienced in such matters to the effect that, as a result of (a) any amendment
to or change (including any announced prospective change) in the laws or any
regulations thereunder of the United States or any political subdivision or
taxing authority thereof or therein, or (b) any judicial decision or any
official administrative pronouncement (including any private letter ruling,
technical advice memorandum or field service advice) or regulatory procedure (an
"Administrative Action"), regardless of whether such judicial decision or
Administrative Action is issued to or in connection with a proceeding involving
the Corporation or the Issuer Trust and whether or not subject to review or
appeal, which amendment, change, Administrative Action or decision is enacted,
promulgated or announced, in each case, on or after the date hereof, there is
more than an insubstantial risk that (i) the Issuer Trust is, or will be within
90 days of the date of such opinion, subject to United States federal income tax
with respect to income received or accrued on the Junior Subordinated
Debentures, (ii) interest payable by the Corporation or original issue discount
accruing on the Junior Subordinated Debentures is not, or within 90 days of the
date of such opinion, will not be, deductible by the Corporation, in whole or in
part, for United States federal income tax purposes, or (iii) the Issuer Trust
is, or will be within 90 days of the date of such opinion, subject to more than
a de minimis amount of other taxes, duties or other governmental charges.
"Time of Delivery" has the meaning specified in the Underwriting
Agreement.
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"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including (i) all exhibits, and (ii) for all purposes of this
Trust Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Trust Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that if
the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture
Act" means, to the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) any cash on deposit in, or
owing to, the Payment Account, and (c) all proceeds and rights in respect of the
foregoing and any other property and assets for the time being held or deemed to
be held by the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the Capital
Securities.
"Underwriting Agreement" means the Pricing Agreement, dated as of [ ],
1999, among the Issuer Trust, the Depositor and the Underwriters named therein,
as the same may be amended from time to time and includes the Underwriting
Agreement incorporated therein by reference.
"Vice President," when used with respect to the Depositor, means any duly
appointed vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
ARTICLE II.
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name.
The trust continued hereby shall be known as "CSC Capital I", as such name
may be modified from time to time by the Administrators following written notice
to the Holders of Trust Securities and the Issuer Trustees, in which name the
Administrators and the Trustees may conduct the business of the Issuer Trust,
make and execute contracts and other instruments on behalf of the Issuer Trust
and sue and be sued.
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SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is The Bank
of New York (Delaware), White Clay Center, Route 273 Newark, Delaware 19711;
Attention: Lisa Wilkins, or such other address in the State of Delaware as the
Delaware Trustee may designate by written notice to the Holders, the Depositor,
the Property Trustee and the Administrators. The principal executive office of
the Issuer Trust is 1111 Stewart Avenue Bethpage, New York 11714, Attention:
Secretary.
SECTION 2.3. Initial Contribution of Trust Property; Organizational
Expenses.
The Property Trustee acknowledges receipt from the Depositor in connection
with the Original Trust Agreement of the sum of $[ ], which constituted the
initial Trust Property. The Depositor shall pay organizational expenses of the
Issuer Trust as they arise or shall, upon request of any Issuer Trustee,
promptly reimburse such Issuer Trustee for any such expenses paid by such Issuer
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
SECTION 2.4. Issuance of the Capital Securities.
On [ ], 1999, the Depositor, both on its own behalf and on behalf of the
Issuer Trust pursuant to the Original Trust Agreement, executed and delivered
the Underwriting Agreement. Contemporaneously with the execution and delivery of
this Trust Agreement, an Administrator, on behalf of the Issuer Trust, shall
manually execute in accordance with Sections 5.3 and 8.9(a) and the Property
Trustee shall deliver to the underwriters, Capital Securities Certificates,
registered in the names requested by the underwriters, evidencing an aggregate
of [ ] Capital Securities having an aggregate Liquidation Amount of $[ ],
against receipt of the aggregate purchase price of such Capital Securities of
$[ ] by the Property Trustee.
SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase
of Debentures.
Contemporaneously with the execution and delivery of this Trust Agreement,
an Administrator, on behalf of the Issuer Trust, shall execute in accordance
with Sections 5.2 and 5.3 and the Property Trustee shall deliver to the
Depositor Common Securities Certificates, registered in the name of the
Depositor, evidencing an aggregate of [ ] Common Securities having an
aggregate Liquidation Amount of $[ ], against receipt of the aggregate
purchase price of such Common Securities of $[ ], to the Property Trustee.
Contemporaneously therewith, an Administrator, on behalf of the Issuer Trust,
shall subscribe for and purchase from the Depositor Debentures, registered in
the name of the Property Trustee, not in its individual capacity but solely as
Property Trustee, on behalf of the Issuer Trust and having an aggregate
principal amount equal to $[ ], and, in satisfaction of the purchase price
for such Debentures, the Property Trustee, on behalf of the Issuer Trust, shall
deliver to the Depositor the sum of
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$[ ] (being the sum of the amounts delivered to the Property Trustee pursuant to
(i) the second sentence of Section 2.4, and (ii) the first sentence of this
Section 2.5).
SECTION 2.6. Continuation of Trust.
The exclusive purposes and functions of the Issuer Trust are (a) to issue
and sell Trust Securities and use the proceeds from such sale to acquire the
Debentures, and (b) to engage in only those activities necessary, or incidental
thereto. The Depositor hereby appoints the Issuer Trustees as trustees of the
Issuer Trust, to have all the rights, powers and duties to the extent set forth
herein, and the Issuer Trustees hereby accept such appointment. The Property
Trustee hereby declares that it will hold the Trust Property upon and subject to
the conditions set forth herein for the benefit of the Issuer Trust and the
Holders. The Administrators shall have only those ministerial duties set forth
herein with respect to accomplishing the purposes of the Issuer Trust and shall
not be trustees or, to the fullest extent permitted by law, fiduciaries with
respect to the Issuer Trust or the Holders. The Property Trustee shall have the
right and power to perform those duties assigned to the Administrators. The
Delaware Trustee shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities, of the Property
Trustee or the Administrators set forth herein. The Delaware Trustee shall be
one of the trustees of the Issuer Trust for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware Business Trust Act
and for taking such actions as are required to be taken by a Delaware trustee
under the Delaware Business Trust Act.
SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees and the Administrators shall conduct the affairs
of the Issuer Trust in accordance with the terms of this Trust Agreement.
Subject to the limitations set forth in paragraph (b) of this Section, and in
accordance with the following provisions (i) and (ii), the Issuer Trustees and
the Administrators shall have the authority to enter into all transactions and
agreements determined by the Issuer Trustees or the Administrators to be
appropriate in exercising the authority, express or implied, otherwise granted
to the Issuer Trustees or the Administrators, as the case may be, under this
Trust Agreement, and to perform all acts in furtherance thereof, including the
following:
(i) Each Administrator shall have the power and authority to act on
behalf of the Issuer Trust with respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Issuer Trust to enter into, and to execute,
deliver and perform on behalf of the Issuer Trust, the Expense
Agreement and the Certificate Depository Agreement and such other
agreements as may be necessary or desirable in connection with the
purposes and function of the Issuer Trust;
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(C) assisting in the registration of the Capital Securities
under the Securities Act, and under applicable state securities or
blue sky laws and the qualification of this Trust Agreement as a
trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Capital Securities upon
such securities exchange or exchanges as shall be determined by the
Depositor, with the registration of the Capital Securities under the
Exchange Act, and with the preparation and filing of all periodic
and other reports and other documents pursuant to the foregoing;
(E) assisting in the sending of notices (other than notices of
default) and other information regarding the Trust Securities and
the Debentures to the Holders in accordance with this Trust
Agreement;
(F) the consent to the appointment of a Paying Agent,
authenticating agent and Securities Registrar in accordance with
this Trust Agreement (which consent shall not be unreasonably
withheld);
(G) execution of the Trust Securities on behalf of the Trust
in accordance with this Trust Agreement;
(H) execution and delivery of closing certificates, if any,
pursuant to the Underwriting Agreement and application for a
taxpayer identification number for the Issuer Trust;
(I) unless otherwise determined by the Property Trustee or
Holders of at least a Majority in Liquidation Amount of the Capital
Securities or as otherwise required by the Delaware Business Trust
Act or the Trust Indenture Act, to execute on behalf of the Issuer
Trust (either acting alone or together with any or all of the
Administrators) any documents that the Administrators have the power
to execute pursuant to this Trust Agreement; and
(J) the taking of any action incidental to the foregoing as
the Issuer Trustees may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power, duty and authority
to act on behalf of the Issuer Trust with respect to the following
matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
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(C) the collection of interest, principal and any other
payments made in respect of the Debentures and the holding of such
amounts in the Payment Account;
(D) the distribution through the Paying Agent of amounts
distributable to the Holders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges
of a holder of the Debentures;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the Holders in
accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Issuer Trust and
the preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default (other than under paragraph (b),
(c), (d) or (e) of the definition of such term if such Event of
Default is by or with respect to the Property Trustee) the taking of
any action incidental to the foregoing as the Property Trustee may
from time to time determine is necessary or advisable to give effect
to the terms of this Trust Agreement and protect and conserve the
Trust Property for the benefit of the Holders (without consideration
of the effect of any such action on any particular Holder); and
(J) any of the duties, liabilities, powers or the authority of
the Administrators set forth in Section 2.7(a)(i)(E), (F) and (J)
herein; and in the event of a conflict between the action of the
Administrators and the action of the Property Trustee, the action of
the Property Trustee shall prevail.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust
(or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust)
shall not undertake any business, activities or transaction except as expressly
provided herein or contemplated hereby. In particular, neither the Issuer
Trustees nor the Administrators, acting on behalf of the Issuer Trust, shall (i)
acquire any investments or engage in any activities not authorized by this Trust
Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or
otherwise dispose of any of the Trust Property or interests therein, including
to Holders, except as expressly provided herein, (iii) take any action that
would reasonably be expected to cause the Issuer Trust to
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become taxable as a corporation or classified as other than a grantor trust for
United States federal income tax purposes, (iv) take or consent to any action
that would cause the Junior Subordinated Debentures to be treated as other than
indebtedness of the Corporation for United States federal income tax purposes,
(v) incur any indebtedness for borrowed money or issue any other debt, or (vi)
take or consent to any action that would result in the placement of a Lien on
any of the Trust Property. The Property Trustee shall defend all claims and
demands of all Persons at any time claiming any Lien on any of the Trust
Property adverse to the interest of the Issuer Trust or the Holders in their
capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities, the
Depositor shall have the right and responsibility to assist the Issuer Trust
with respect to, or effect on behalf of the Issuer Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Issuer Trust with the
Commission and the execution on behalf of the Issuer Trust of a
registration statement on the appropriate form in relation to the Capital
Securities, including any amendments thereto and the taking of any action
necessary or desirable to sell the Capital Securities in a transaction or
a series of transactions pursuant thereto;
(ii) the determination of the States or other jurisdictions, if any,
in which to take appropriate action to qualify or register for sale all or
part of the Capital Securities and the determination of any and all such
acts, other than actions that must be taken by or on behalf of the Issuer
Trust, and the advice to the Issuer Trust of actions they must take on
behalf of the Issuer Trust, and the preparation for execution and filing
of any documents to be executed and filed by the Issuer Trust or on behalf
of the Issuer Trust, as the Depositor deems necessary or advisable in
order to comply with the applicable laws of any such States in connection
with the sale of the Capital Securities;
(iii) the preparation for filing by the Issuer Trust and execution
on behalf of the Issuer Trust of any application to the New York Stock
Exchange or any other national stock exchange or the Nasdaq National
Market for listing upon notice of issuance of any Capital Securities;
(iv) the preparation for filing by the Issuer Trust with the
Commission and the execution on behalf of the Issuer Trust of any
registration statement on Form 8-A relating to Capital Securities under
Section 12(b) or 12(g) of the Exchange Act, including any amendments
thereto;
(v) the negotiation of the terms of, and the execution and delivery
of, the Underwriting Agreement providing for the sale of the Capital
Securities; and
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(vi) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrators and the Issuer Trustees are authorized and directed to conduct
the affairs of the Issuer Trust and to operate the Issuer Trust so that the
Issuer Trust will not be deemed to be an "investment company" required to be
registered under the Investment Company Act, and will not be taxable as a
corporation or classified as other than a grantor trust for United States
federal income tax purposes and so that the Debentures will be treated as
indebtedness of the Depositor for United States federal income tax purposes. In
this connection, each Administrator, the Property Trustee and the Holders of at
least a Majority in Liquidation Amount of the Common Securities are authorized
to take any action, not inconsistent with applicable law, the Certificate of
Trust or this Trust Agreement, that such Administrator, the Property Trustee or
Holders of Common Securities determine in their discretion to be necessary or
desirable for such purposes, as long as such action does not adversely affect in
any material respect the interests of the Holders of the Outstanding Capital
Securities. In no event shall the Administrator take any action pursuant to the
preceding sentence or any other provision herein that would constitute
discretionary control over the assets of the Trust for purposes of ss. 3(21) of
ERISA. In no event shall the Administrators or the Issuer Trustees be liable to
the Issuer Trust or the Holders for any failure to comply with this section that
results from a change in law or regulation or in the interpretation thereof.
SECTION 2.8.Assets of Trust.
The assets of the Issuer Trust shall consist of the Trust Property.
SECTION 2.9.Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee in trust for the benefit of the Issuer Trust and the
Holders in accordance with this Trust Agreement.
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and its agents shall have exclusive
control and sole right of withdrawal with respect to the Payment Account for the
purpose of making deposits in and withdrawals from the Payment Account in
accordance with this Trust Agreement. All monies and other property deposited or
held from time to time in the Payment Account shall be held by
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the Property Trustee in the Payment Account for the exclusive benefit of the
Holders and for distribution as herein provided, including (and subject to) any
priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in the
Trust Property, and Distributions (including of Additional Amounts) will be made
on the Trust Securities at the rate and on the dates that payments of interest
(including any Additional Interest, as defined in the Indenture) are made on the
Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative, and
shall accumulate whether or not there are funds of the Trust available for
the payment of Distributions. Distributions shall accumulate from [ ],
1999, and, except as provided in clause (ii) below, shall be payable
quarterly in arrears on March 31, June 30, September 30 and December 31 of
each year, commencing on [ ], 1999. If any date on which a
Distribution is otherwise payable on the Trust Securities is not a
Business Day, then the payment of such Distribution shall be made on the
next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business
Day is in the next succeeding calendar year, such payment shall be made on
the immediately preceding Business Day, in each case with the same force
and effect as if made on the date on which such payment was originally
payable (each date on which distributions are payable in accordance with
this Section 4.1(a), a "Distribution Date").
(ii) In the event (and to the extent) of an Extension Period,
quarterly Distributions on the Capital Securities shall continue to
accumulate but shall be deferred. Any Distributions that would otherwise
become due and payable during such deferral will not become due and
payable until the day after the period ends.
(iii) Distributions shall accumulate in respect of the Capital
Securities at a rate of [ ]% per annum of the Liquidation Amount of the
Trust Securities. The amount of Distributions payable for any period less
than a full Distribution period shall be computed
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on the basis of a 360-day year of twelve 30-day months and the actual
number of days elapsed in a partial month in a period. Distributions
payable for each full Distribution period will be computed by dividing the
rate per annum by four. The amount of Distributions payable for any period
shall include any Additional Amounts in respect of such period.
(iv) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Issuer Trust has funds then
on hand and available in the Payment Account for the payment of such
Distributions.
(b) Distributions on the Trust Securities with respect to a Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities at the close of business on the relevant
record date, which shall be at the close of business on the fifteenth day
(whether or not a Business Day) next preceding the relevant Distribution Date.
SECTION 4.2. Redemption.
(a) On each Debenture Redemption Date and on the stated maturity of the
Debentures, the Issuer Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. Notwithstanding the
aforementioned sentence, if the redemption results from the acceleration of the
maturity of the Debentures and the Property Trustee cannot reasonably give such
notice of redemption within the prescribed period, then the notice will be given
as soon as practicable. All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided pursuant to (and as defined in)
the Indenture together with a statement that it is an estimate and that
the actual Redemption Price will be calculated on the third Business Day
prior to the Redemption Date (and if an estimate is provided, a further
notice shall be sent of the actual Redemption Price on the date that such
Redemption Price is calculated);
(iii) the CUSIP number or CUSIP numbers of the Capital Securities
affected;
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(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the aggregate Liquidation Amount of the
particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will become due
and payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accumulate on and after said date,
except as provided in Section 4.2(d) below; and
(vi) the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price.
The Issuer Trust in issuing the Trust Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Property Trustee shall indicate the
"CUSIP" numbers of the Trust Securities in notices of redemption and related
materials as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Trust Securities or as contained in any notice of redemption and
related materials.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made and
the Redemption Price shall be payable on each Redemption Date only to the extent
that the Issuer Trust has funds then on hand and available in the Payment
Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of any
Capital Securities, then, by 12:00 noon, New York City time, on the Redemption
Date, subject to Section 4.2(c), the Property Trustee will, with respect to
Book-Entry Capital Securities, irrevocably deposit with the Clearing Agency for
such Book-Entry Capital Securities, to the extent available therefor, funds
sufficient to pay the applicable Redemption Price and will give such Clearing
Agency irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Capital Securities. With respect to Capital Securities that are
not Book-Entry Capital Securities, the Property Trustee, subject to Section
4.2(c), will irrevocably deposit with the Paying Agent or Paying Agents, to the
extent available therefor, funds sufficient to pay the applicable Redemption
Price and will give the Paying Agent or Paying Agents irrevocable instructions
and authority to pay the Redemption Price to the Holders of the Capital
Securities upon surrender of their Capital Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register on the relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited as required, then
upon the date of such deposit, all rights of Holders holding Trust Securities so
called for redemption will cease, except the right of such Holders to receive
the Redemption Price and any Distribution payable in respect
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of the Trust Securities on or prior to the Redemption Date, but without
interest, and such Securities will cease to be Outstanding. In the event that
any date on which any Redemption Price is payable is not a Business Day, then
payment of the Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (without any interest or other payment in
respect of any such delay), except that, if such Business Day falls in the next
calendar year, such payment will be made on the immediately preceding Business
Day, in each case, with the same force and effect as if made on such date. In
the event that payment of the Redemption Price in respect of any Trust
Securities called for redemption is improperly withheld or refused and not paid
either by the Issuer Trust or by the Depositor pursuant to the Guarantee
Agreement, Distributions on such Trust Securities will continue to accumulate,
as set forth in Section 4.1, from the Redemption Date originally established by
the Issuer Trust for such Trust Securities to the date such Redemption Price is
actually paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the Redemption Price.
(e) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated pro
rata to the Common Securities and the Capital Securities based upon the relative
Liquidation Amounts of such classes. The particular Capital Securities to be
redeemed shall be selected by the Property Trustee based upon any method of
selection that it deems to be fair and appropriate (which may be by lot),
including any method that involves the redemption of a portion of the aggregate
Liquidation Amount of any particular holder's Capital Securities not more than
60 days prior to the Redemption Date from the Outstanding Capital Securities not
previously called for redemption, provided that so long as the Capital
Securities are in book-entry-only form, such selection shall be made in
accordance with the customary procedures for the Clearing Agency for the Capital
Securities. The Property Trustee shall promptly notify the Securities Registrar
in writing of the Capital Securities selected for redemption and, in the case of
any Capital Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of Capital
Securities shall relate, in the case of any Capital Securities redeemed or to be
redeemed only in part, to the portion of the aggregate Liquidation Amount of
Capital Securities that has been or is to be redeemed.
SECTION 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including any Additional Amounts) on, the
Redemption Price of, and the Liquidation Distribution in respect of the Trust
Securities, as applicable, shall be made, subject to Section 4.2(e), pro rata
among the Common Securities and the Capital Securities based on the Liquidation
Amount of the Trust Securities; provided, however, that if on any Distribution
Date, Redemption Date or Liquidation Date any Event of Default shall have
occurred and be continuing, no payment of any Distribution (including any
Additional Amounts) on, Redemption Price of, or Liquidation Distribution in
respect of any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common
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Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions (including any Additional Amounts) on all Outstanding
Capital Securities for all Distribution periods terminating on or prior thereto,
or in the case of payment of the Redemption Price the full amount in cash of
such Redemption Price on all Outstanding Capital Securities then called for
redemption, or in the case of payment of the Liquidation Distribution the full
amount of such Liquidation Distribution on all Outstanding Capital Securities,
shall have been made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in cash of all
Distributions (including any Additional Amounts) on, or the Redemption Price of,
the Capital Securities then due and payable.
(b) In the case of the occurrence of any Event of Default, the Holders of
the Common Securities shall have no right to act with respect to any such Event
of Default under this Trust Agreement until the effect of all such Events of
Default with respect to the Capital Securities have been cured, waived or
otherwise eliminated. Until all such Events of Default under this Trust
Agreement with respect to the Capital Securities have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Capital Securities and not on behalf of the Holders of the Common
Securities, and only the Holder of all the Capital Securities will have the
right to direct the Property Trustee to act on their behalf. Notwithstanding the
foregoing, the holders of Common Securities may act with respect to an Event of
Default that results solely from a default in the payment of any amount due and
payable on the Common Securities, or from a default or breach under any covenant
herein made solely for the benefit of the holders of Common Securities (a
"Common Securities Default"), subject to the following conditions. The action of
the Common Securities holders must not adversely affect the interests of the
holders of Capital Securities and no Event of Default (and no event or condition
that after the passage of time or giving of notice would result in an Event of
Default) that is not a Common Securities Default may have occurred and be
continuing.
The Issuer Trust will not make any payment or other distribution in
respect of the Common Securities (including on account of any purchase or other
acquisition) while the Capital Securities are outstanding, other than
Distributions, the Redemption Price and the Liquidation Distribution on the
terms set forth herein.
SECTION 4.4. Payment Procedures.
Payments of Distributions (including any Additional Amounts) or of the
Redemption Price, Liquidation Amount or any other amounts in respect of the
Capital Securities shall be made at the option of the Issuer Trust, either at
the offices of any Paying Agent or by check mailed to the address of the Person
entitled thereto as such address shall appear on the Securities Register or, if
the Capital Securities are held by a Clearing Agency, such Distributions shall
be made to the Clearing Agency in immediately available funds. Payments in
respect of the Common Securities shall be made in such manner as shall be
mutually agreed between the Property Trustee and the Holder of all the Common
Securities.
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SECTION 4.5. Withholding Tax.
The Issuer Trust and the Administrators shall comply with all withholding
and backup withholding tax requirements under United States federal, state and
local law. The Issuer Trust shall request, and the Holders shall provide to the
Issuer Trust, such forms or certificates as are necessary to establish an
exemption from withholding and backup withholding tax with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Issuer Trust to assist it in determining the extent of, and in fulfilling,
its withholding and backup withholding tax obligations. The Administrators shall
file required forms with applicable jurisdictions and, unless an exemption from
withholding and backup withholding tax is properly established by a Holder,
shall remit amounts withheld with respect to the Holder to applicable
jurisdictions. To the extent that the Issuer Trust is required to withhold and
pay over any amounts to any authority with respect to Distributions or
allocations to any Holder, the amount withheld shall be deemed to be a
Distribution in the amount of the withholding to the Holder. In the event of any
claimed overwithholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Issuer Trust may reduce subsequent
Distributions by the amount of such required withholding.
SECTION 4.6. Tax Returns and Reports.
The Administrators shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Issuer Trust. In this regard, the Administrators shall (a) prepare and file (or
cause to be prepared and filed) all Internal Revenue Service forms and returns
required to be filed in respect of the Issuer Trust in each taxable year of the
Issuer Trust, and (b) prepare and furnish (or cause to be prepared and
furnished) to each Holder all Internal Revenue Service forms and returns
required to be provided by the Issuer Trust. The Administrators shall provide
the Depositor and the Property Trustee with a copy of all such returns and
reports promptly after such filing or furnishing.
SECTION 4.7. Payment of Taxes, Duties, Etc. of the Issuer Trust.
Upon receipt under the Debentures of Additional Sums, the Property Trustee
shall promptly pay any Additional Taxes imposed on the Issuer Trust by the
United States or any other taxing authority.
SECTION 4.8. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Capital Securities (or any
Owner with respect thereto) shall be reduced by the amount of any corresponding
payment such Holder (or
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Owner) has directly received pursuant to Section 5.8 of the Indenture or Section
5.13 of this Trust Agreement.
SECTION 4.9. Liability of the Holder of Common Securities.
Any Holder of the Common Securities shall be liable for the debts and
obligations of the Issuer Trust in the manner and to the extent set forth with
respect to the Corporation (as defined in the Expense Agreement) and agrees that
it shall be subject to all liabilities to which the Corporation may be subject,
and shall make all payments that the Corporation is required to make, under the
terms of the Expense Agreement.
SECTION 4.10 Other Purchases of Preferred Securities.
Subject to applicable law (including United States federal securities
laws), the Issuer Trust may purchase Outstanding Preferred Securities by tender,
in the open market or by private agreement. These purchases may occur at any
time and from time to time other than during an Extension Period.
ARTICLE V.
SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the formation of the Issuer Trust and the contribution by the
Depositor referred to in Section 2.3 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are Outstanding,
the Depositor shall be the sole beneficial owner of the Issuer Trust.
SECTION 5.2. The Securities Certificates.
(a) The Capital Securities Certificates shall be issued in minimum
denominations of $25 Liquidation Amount and integral multiples of $25 in excess
thereof, and the Common Securities Certificates shall be issued in denominations
of $25 Liquidation Amount and integral multiples thereof. The Securities
Certificates shall be executed on behalf of the Issuer Trust by manual signature
of at least one Administrator. Securities Certificates bearing the manual
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Issuer Trust, shall be validly
issued and entitled to the benefits of this Trust Agreement, notwithstanding
that such individuals or any of them shall have ceased to be so authorized prior
to the delivery of such Securities Certificates or did not hold such offices at
the date of delivery of such Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Holder, and shall be entitled to the
rights and subject to the obligations
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of a Holder hereunder, upon due registration of such Trust Securities
Certificate in such transferee's name pursuant to Section 5.5.
(b) Upon their original issuance, Capital Securities Certificates may be
issued in whole or in part in the form of one or more Global Capital Securities
registered in the name of DTC, as Clearing Agency, or its nominee and deposited
with DTC or a custodian for DTC for credit by DTC to the respective accounts of
the Owners thereof (or such other accounts as they may direct), provided that
upon deposit all European Trust Securities shall be credited to or through
accounts maintained at DTC by or on behalf of Euroclear or Cedel.
(c) Upon their original issuance, Capital Securities Certificates may be
issued in whole or in part in the form of one or more Definitive Capital
Securities Certificates registered in the name of holders as designated by the
underwriters in a particular offering.
(d) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION 5.3. Execution and Delivery of Securities Certificates.
At the Time of Delivery, the Administrators shall cause Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.4 and
2.5, to be executed on behalf of the Issuer Trust and delivered to or upon the
written order of the Depositor, executed by an authorized officer thereof,
without further corporate action by the Depositor, in authorized denominations.
SECTION 5.4. Book-Entry Capital Securities.
(a) Each Global Capital Security issued under this Agreement shall be
registered in the name of the Clearing Agency or a nominee thereof and delivered
to such Clearing Agency or a nominee thereof or custodian therefor, and each
such Global Capital Security shall constitute a single Capital Securities
Certificate for all purposes of this Agreement.
(b) Notwithstanding any other provision in this Trust Agreement, no Global
Capital Security may be exchanged in whole or in part for Capital Securities
Certificates registered, and no transfer of a Global Capital Security in whole
or in part may be registered, in the name of any Person other than the Clearing
Agency for such Global Capital Security or a nominee thereof unless (i) the
Clearing Agency advises the Property Trustee in writing that the Clearing Agency
is no longer willing or able to properly discharge its responsibilities with
respect to the Global Capital Security, and the Property Trustee is unable to
locate a qualified successor, (ii) the Issuer Trust at its option advises the
Depositary in writing that it elects to terminate the book-entry system through
the Clearing Agency, or (iii) an Event of Default has occurred and is continuing
and a holder of Capital Securities notifies the Property Trustee in writing that
it wishes to receive a Definitive Capital Securities Certificate. Upon the
occurrence of any event specified in clause
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(i), (ii) or (iii) above, the Administrators shall notify the Clearing Agency
and instruct the Clearing Agency to notify all Owners of Book-Entry Capital
Securities, the Delaware Trustee and the Administrators of the occurrence of
such event and of the availability of the Definitive Capital Securities
Certificates to Owners of the Capital Securities requesting the same.
(c) If any Global Capital Security is to be exchanged for other Capital
Securities Certificates or canceled in part, or if any other Capital Securities
Certificate is to be exchanged in whole or in part for Book-Entry Capital
Securities represented by a Global Capital Security, then either (i) such Global
Capital Security shall be so surrendered for exchange or cancellation as
provided in this Article V or (ii) the aggregate Liquidation Amount represented
by such Global Capital Security shall be reduced, subject to Section 5.2, or
increased by an amount equal to the Liquidation Amount represented by that
portion of the Global Capital Security to be so exchanged or canceled, or equal
to the Liquidation Amount represented by such other Capital Securities
Certificates to be so exchanged for Book-Entry Capital Securities represented
thereby, as the case may be, by means of an appropriate adjustment made on the
records of the Securities Registrar, whereupon the Property Trustee, in
accordance with the Applicable Procedures, shall instruct the Clearing Agency or
its authorized representative to make a corresponding adjustment to its records.
Upon surrender to the Administrators or the Securities Registrar of the Global
Capital Security or Securities by the Clearing Agency, accompanied by
registration instructions, the Administrators, or any one of them, shall execute
the Definitive Capital Securities Certificates in accordance with the
instructions of the Clearing Agency. None of the Securities Registrar, the
Issuer Trustees or the Administrators shall be liable for any delay in delivery
of such instructions and may conclusively rely on, and shall be fully protected
in relying on, such instructions. Upon the issuance of Definitive Capital
Securities Certificates, the Issuer Trustees and Administrators shall recognize
the Holders of the Definitive Capital Securities Certificates as Holders. The
Definitive Capital Securities Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Administrators, as evidenced by the execution thereof by the Administrators
or any one of them.
(d) Every Capital Securities Certificate executed and delivered upon
registration or transfer of, or in exchange for or in lieu of, a Global Capital
Security or any portion thereof, whether pursuant to this Article V or Article
IV or otherwise, shall be executed and delivered in the form of, and shall be, a
Global Capital Security, unless such Capital Securities Certificate is
registered in the name of a Person other than the Clearing Agency for such
Global Capital Security or a nominee thereof.
(e) The Clearing Agency or its nominee, as registered owner of a Global
Capital Security, shall be the Holder of such Global Capital Security for all
purposes under this Agreement and the Global Capital Security, and Owners with
respect to a Global Capital Security shall hold such interests pursuant to the
Applicable Procedures. The Securities Registrar and the Property Trustee shall
be entitled to deal with the Clearing Agency for all purposes of this Trust
Agreement relating to the Global Capital Securities (including the payment of
the Liquidation Amount of and Distributions on the Book-Entry Capital Securities
represented
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thereby and the giving of instructions or directions by Owners of Book-Entry
Capital Securities represented thereby) as the sole Holder of the Book-Entry
Capital Securities represented thereby and shall have no obligations to the
Owners thereof. None of the Property Trustee nor the Securities Registrar shall
have any liability in respect of any transfers effected by the Clearing Agency.
The rights of the Owners of the Book-Entry Capital Securities shall be
exercised only through the Clearing Agency and shall be limited to those
established by law, the Applicable Procedures and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants, provided that,
solely for the purpose of determining whether the Holders of the requisite
amount of Capital Securities have voted on any matter provided for in this Trust
Agreement, so long as Definitive Capital Security Certificates have not been
issued, the Issuer Trustees may conclusively rely on, and shall be fully
protected in relying on, any written instrument (including a proxy) delivered to
the Property Trustee by the Clearing Agency setting forth the Owners' votes or
assigning the right to vote on any matter to any other Persons either in whole
or in part. Pursuant to the Certificate Depository Agreement, unless and until
Definitive Capital Securities Certificates are issued pursuant to Section
5.4(b), the initial Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and transmit payments on the Capital
Securities to such Clearing Agency Participants, and none of the Depositor, the
Administrators or the Issuer Trustees shall have any responsibility or
obligation with respect thereto.
SECTION 5.5. Registration of Transfer and Exchange of Capital Securities
Certificates.
(a) The Property Trustee shall keep or cause to be kept, at its Corporate
Trust Office, a register or registers (the "Securities Register") in which the
registrar and transfer agent with respect to the Trust Securities (the
"Securities Registrar"), subject to such reasonable regulations as it may
prescribe, shall provide for the registration of Capital Securities Certificates
and Common Securities Certificates (subject to Section 5.11 in the case of the
Common Securities Certificates) and registration of transfers and exchanges of
Capital Securities Certificates as herein provided. The Property Trustee is
hereby appointed Securities Registrar for the purpose of registering Capital
Securities Certificates and (subject to Section 5.11) Common Securities
Certificates and transfers and exchanges thereof as provided herein.
Upon surrender for registration of transfer of any Capital Securities
Certificate at the office or agency maintained pursuant to Section 5.9, the
Administrators or any one of them shall execute and deliver to the Property
Trustee, and the Property Trustee shall deliver, in the name of the designated
transferee or transferees, one or more new Capital Securities Certificates in
authorized denominations of a like aggregate Liquidation Amount as may be
required by this Trust Agreement dated the date of execution by such
Administrator.
The Securities Registrar shall not be required, (i) to issue, register the
transfer of or exchange any Capital Security during a period beginning at the
opening of business 15 days
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before the day of selection for redemption of such Capital Securities pursuant
to Article IV and ending at the close of business on the day of mailing of the
notice of redemption, or (ii) to register the transfer of or exchange any
Capital Security so selected for redemption in whole or in part, except, in the
case of any such Capital Security to be redeemed in part, any portion thereof
not to be redeemed.
Every Capital Securities Certificate presented or surrendered for
registration of transfer or exchange shall be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Securities
Registrar duly executed by the Holder or such Holder's attorney duly authorized
in writing. Each Capital Securities Certificate surrendered for registration of
transfer or exchange shall be canceled and subsequently disposed of by the
Property Trustee in accordance with such Person's customary practice.
No service charge shall be made for any registration of transfer or
exchange of Capital Securities Certificates, but the Issuer Trust may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Capital Securities
Certificates.
(b) Notwithstanding any other provision of this Agreement, transfers and
exchanges of Capital Securities Certificates and beneficial interests in a
Global Capital Security of the kinds specified in this Section 5.5(b) shall be
made only in accordance with this Section 5.5(b).
(i) Non-Global Capital Security to Global Capital Security. If the
Holder of a Capital Securities Certificate (other than a Global Capital
Security) wishes at any time to transfer all or any portion of such
Capital Securities Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in a Global Capital Security,
such transfer may be effected only in accordance with the provisions of
this clause (b)(i) and subject to the Applicable Procedures. Upon receipt
by the Securities Registrar of (A) such Capital Securities Certificate as
provided in Section 5.5(a) and instructions satisfactory to the Securities
Registrar directing that a beneficial interest in the Global Capital
Security of a specified number of Capital Securities not greater than the
number of Capital Securities represented by such Capital Securities
Certificate be credited to a specified Clearing Agency Participant's
account, then the Securities Registrar shall cancel such Capital
Securities Certificate (and issue a new Capital Securities Certificate in
respect of any untransferred portion thereof) as provided in Section
5.5(a) and increase the aggregate Liquidation Amount of the Global Capital
Security by the Liquidation Amount represented by such Capital Securities
so transferred as provided in Section 5.4(c).
(ii) Non-Global Capital Security to Non-Global Capital Security. A
Capital Securities Certificate that is not a Global Capital Security may
be transferred, in whole or in part, to a Person who takes delivery in the
form of another Capital Securities Certificate that is not a Global
Capital Security as provided in Section 5.5(a).
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(iii) Exchanges between Global Capital Security and Non-Global
Capital Security. A beneficial interest in a Global Capital Security may
be exchanged for a Capital Securities Certificate that is not a Global
Capital Security as provided in Section 5.4 .
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Securities Certificates.
If (a) any mutilated Securities Certificate shall be surrendered to the
Securities Registrar, or if the Securities Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of any Securities
Certificate, and (b) there shall be delivered to the Securities Registrar and
the Administrators such security or indemnity as may be required by them to save
each of them harmless, then in the absence of notice that such Securities
Certificate shall have been acquired by a bona fide purchaser, the
Administrators, or any one of them, on behalf of the Issuer Trust shall execute
and make available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Securities Certificate, a new Securities
Certificate of like class, tenor and denomination. In connection with the
issuance of any new Securities Certificate under this Section 5.6, the
Administrators or the Securities Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Securities Certificate issued pursuant to
this Section 5.6 shall constitute conclusive evidence of an undivided beneficial
interest in the assets of the Issuer Trust corresponding to that evidenced by
the lost, stolen or destroyed Securities Certificate, as if originally issued,
whether or not the lost, stolen or destroyed Securities Certificate shall be
found at any time.
SECTION 5.7. Persons Deemed Holders.
The Issuer Trustees, the Administrators and the Securities Registrar shall
each treat the Person in whose name any Securities Certificate shall be
registered in the Securities Register as the owner of such Securities
Certificate for the purpose of receiving Distributions and for all other
purposes whatsoever, and none of the Issuer Trustees, the Administrators and the
Securities Registrar shall be bound by any notice to the contrary.
SECTION 5.8. Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold the
Depositor, the Property Trustee, the Delaware Trustee or the Administrators
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
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SECTION 5.9. Maintenance of Office or Agency.
The Property Trustee shall designate, with the consent of the
Administrators, which consent shall not be unreasonably withheld, an office or
offices or agency or agencies where Capital Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Issuer Trustees in respect of the Trust Securities
Certificates may be served. The Property Trustee initially designates the
Corporate Trust Office, Attention: Corporate Trust Administration, as its office
and agency for such purposes. The Property Trustee shall give prompt written
notice to the Depositor, the Administrators and to the Holders of any change in
the location of the Securities Register or any such office or agency.
SECTION 5.10 Appointment of Paying Agents.
The Paying Agent or Paying Agents shall make Distributions to Holders from
the Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrators. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account solely for the
purpose of making the Distributions referred to above. The Property Trustee may
revoke such power and remove the Paying Agent in its sole discretion. The Paying
Agent shall initially be the Property Trustee. Any Person acting as Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Administrators and the Property Trustee. If the Property Trustee shall no longer
be the Paying Agent or a successor Paying Agent shall resign or its authority to
act be revoked, the Property Trustee shall appoint a successor (which shall be a
bank or trust company) that is reasonably acceptable to the Administrators to
act as Paying Agent. Such successor Paying Agent or any additional Paying Agent
shall execute and deliver to the Issuer Trustees an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Issuer
Trustees that as Paying Agent, such successor Paying Agent or additional Paying
Agent will hold all sums, if any, held by it for payment to the Holders in trust
for the benefit of the Holders entitled thereto until such sums shall be paid to
such Holders. The Paying Agent shall return all funds remaining unclaimed for
two years to the Property Trustee and upon removal of a Paying Agent such Paying
Agent shall also return all funds in its possession to the Property Trustee. The
provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to the Property
Trustee also in its role as Paying Agent, for so long as the Property Trustee
shall act as Paying Agent and, to the extent applicable, to any other paying
agent appointed hereunder. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
SECTION 5.11 Ownership of Common Securities by Depositor.
At the Time of Delivery, the Depositor shall acquire, and thereafter shall
retain, beneficial and record ownership of the Common Securities. Neither the
Depositor nor any successor Holder of the Common Securities may transfer less
than all the Common Securities, and the Depositor or any such successor Holder
may transfer the Common Securities only (i) in connection with a consolidation
or merger of the Depositor into another corporation, or any conveyance, transfer
or
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lease by the Depositor of its properties and assets substantially as an entirety
to any Person, pursuant to Section 8.1 of the Indenture, or (ii) to the
Depositor or an Affiliate of the Depositor in compliance with applicable law
(including the Securities Act, and applicable state securities and blue sky
laws), and in either case only upon an effective assignment and delegation by
the Holder of all the Common Securities to its transferee of all of its rights
and obligations under the Expense Agreement. To the fullest extent permitted by
law, any attempted transfer of the Common Securities other than as set forth in
the immediately preceding sentence shall be void. The Administrators shall cause
each Common Securities Certificate issued to the Depositor to contain a legend
stating substantially "THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE
DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND
SECTION 5.11 OF THE TRUST AGREEMENT AND ONLY IN CONNECTION WITH A SIMULTANEOUS
DELEGATION AND ASSIGNMENT OF THE EXPENSE AGREEMENT REFERRED TO THEREIN."
SECTION 5.12 Notices to Clearing Agency.
To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Capital Securities are
represented by a Global Capital Security, the Administrators and the Issuer
Trustee shall give all such notices and communications specified herein to be
given to the Clearing Agency, and shall have no obligations to the Owners.
SECTION 5.13 Rights of Holders; Waivers of Past Defaults.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Holders shall not have any right or title therein other than the undivided
beneficial interest in the assets of the Issuer Trust conferred by their Trust
Securities and they shall have no right to call for any partition or division of
property, profits or rights of the Issuer Trust except as described below. The
Trust Securities shall be personal property giving only the rights specifically
set forth therein and in this Trust Agreement. The Trust Securities shall have
no preemptive or similar rights and when issued and delivered to Holders against
payment of the purchase price therefor will be fully paid and nonassessable by
the Issuer Trust. Subject to the provisions of Section 4.8, the Holders of the
Trust Securities, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
(b) For so long as any Capital Securities remain Outstanding, if, upon a
Debenture Event of Default, the Debenture Trustee fails or the holders of not
less than 25% in principal amount of the outstanding Debentures fail to declare
the principal of all of the Debentures to be immediately due and payable, the
Holders of at least 25% in Liquidation Amount of the Capital Securities then
Outstanding shall have the right to make such declaration by a notice in writing
to the Property Trustee, the Depositor and the Debenture Trustee.
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At any time after a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as provided in the
Indenture, if the Property Trustee fails to annul any such declaration and waive
such default, the Holders of at least a Majority in Liquidation Amount of the
Capital Securities, by written notice to the Property Trustee, the Depositor and
the Debenture Trustee, may rescind and annul such declaration and its
consequences if:
(i) the recission would not conflict with any judgement or decree of
a court of competent jurisdiction and
(ii) all Events of Default with respect to the Debentures, other
than the non-payment of the principal of the Debentures that has become
due solely by such acceleration, have been cured or waived as provided in
Section 5.13 of the Indenture.
The Holders of at least a Majority in Liquidation Amount of the Capital
Securities may, on behalf of the Holders of all the Capital Securities, waive
any past default or Event of Default under the Indenture, except a default or
Event of Default in the payment of principal or interest (and any Additional
Sum) (unless such default or Event of Default has been cured and a sum
sufficient to pay all matured installments of interest and principal (and any
Additional Sum) due otherwise than by acceleration has been deposited with the
Debenture Trustee) or a default or Event of Default in respect of a covenant or
provision that under the Indenture cannot be modified or amended without the
consent of the holder of each outstanding Debenture. No such rescission shall
affect any subsequent default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of any part of the
Capital Securities a record date shall be established for determining Holders of
Outstanding Capital Securities entitled to join in such notice, which record
date shall be at the close of business on the day the Property Trustee receives
such notice. The Holders on such record date, or their duly designated proxies,
and only such Persons, shall be entitled to join in such notice, whether or not
such Holders remain Holders after such record date; provided, that, unless such
declaration of acceleration, or rescission and annulment, as the case may be,
shall have become effective by virtue of the requisite percentage having joined
in such notice prior to the day that is 90 days after such record date, such
notice of declaration of acceleration, or rescission and annulment, as the case
may be, shall automatically and without further action by any Holder be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder, or a
proxy of a Holder, from giving, after expiration of such 90-day period, a new
written notice of declaration of acceleration, or rescission and annulment
thereof, as the case may be, that is identical to a written notice that has been
canceled pursuant to the proviso to the preceding sentence, in which event a new
record date shall be established pursuant to the provisions of this Section
5.13(b).
(c) For so long as any Capital Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a
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Debenture Event of Default specified in Section 5.1(1) or 5.1(2) of the
Indenture, any Holder of Capital Securities shall have the right to institute a
proceeding directly against the Depositor, pursuant to Section 5.8 of the
Indenture, for enforcement of payment to such Holder of any amounts payable in
respect of Debentures having an aggregate principal amount equal to the
aggregate Liquidation Amount of the Capital Securities of such Holder (a "Direct
Action"). Except as set forth in Section 5.13(b) and this Section 5.13(c), the
Holders of Capital Securities shall have no right to exercise directly any right
or remedy available to the holders of, or in respect of, the Debentures.
(d) Except as otherwise provided in paragraphs (a), (b) and (c) of this
Section 5.13, the Holders of at least a Majority in Liquidation Amount of the
Capital Securities may, on behalf of the Holders of all the Capital Securities,
waive any past default or Event of Default and its consequences. Upon such
waiver, any such default or Event of Default shall cease to exist, and any
default or Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Trust Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
ARTICLE VI.
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights.
(a) Except as expressly provided in this Trust Agreement and in the
Indenture and as otherwise required by law, no Holder of Capital Securities
shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Issuer Trust or the obligations
of the parties hereto, nor shall anything herein set forth, or contained in the
terms of the Securities Certificates, be construed so as to constitute the
Holders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee on behalf
of the Issuer Trust, the Property Trustee shall not (i) direct the time, method
and place of conducting any proceeding for any remedy available to the Debenture
Trustee, or execute any trust or power conferred on the Property Trustee with
respect to the Debentures, (ii) waive any past default that may be waived under
Section 5.13 of the Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Debentures shall be due and payable,
or (iv) consent to any amendment, modification or termination of the Indenture
or the Debentures, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of at least a Majority in
Liquidation Amount of the Capital Securities, provided, however, that where a
consent under the Indenture would require the consent of each Holder of
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior written consent of each Holder of Capital Securities.
The Property Trustee shall not revoke any action previously
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authorized or approved by a vote of the Holders of the Capital Securities,
except by a subsequent vote of the Holders of the Capital Securities. The
Property Trustee shall notify all Holders of the Capital Securities of any
notice of default actually received by a Responsible Officer with respect to the
Debentures. In addition to obtaining the foregoing approvals of the Holders of
the Capital Securities, prior to taking any of the foregoing actions, the Issuer
Trustees shall, at the expense of the Depositor, be provided with an Opinion of
Counsel experienced in such matters to the effect that such action shall not
cause the Issuer Trust to be taxable as a corporation, or classified as other
than a grantor trust, or cause the Debentures to be treated as other than
indebtedness of the Issuer Trust, for United States federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or the
Issuer Trustees otherwise propose to effect, (i) any action that would adversely
affect in any material respect the powers, preferences or special rights of the
Capital Securities, whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination of the Issuer
Trust, other than pursuant to the terms of this Trust Agreement, then the
Holders of Outstanding Capital Securities as a class will be entitled to vote on
such amendment or proposal and such amendment or proposal shall not be effective
except with the approval of each Holder of the Capital Securities.
Notwithstanding any other provision of this Trust Agreement, no amendment to
this Trust Agreement may be made if, as a result of such amendment, it would
cause the Issuer Trust to be taxable as a corporation or classified as other
than a grantor trust, or cause the Debentures to be treated other than
indebtedness of the Issuer Trust, for United States federal income tax purposes.
SECTION 6.2. Notice of Meetings.
Notice of all meetings of the Holders of the Capital Securities, stating
the time, place and purpose of the meeting, shall be given by the Property
Trustee pursuant to Section 10.8 to each Holder of Capital Securities, at such
Holder's registered address, at least 15 days and not more than 90 days before
the meeting. At any such meeting, any business properly before the meeting may
be so considered whether or not stated in the notice of the meeting. Any
adjourned meeting may be held as adjourned without further notice.
SECTION 6.3. Meetings of Holders of the Capital Securities.
No annual meeting of Holders is required to be held. The Property Trustee,
however, shall call a meeting of the Holders of the Capital Securities to vote
on any matter upon the written request of the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Capital Securities and the
Administrators or the Property Trustee may, at any time in their discretion,
call a meeting of the Holders of the Capital Securities to vote on any matters
as to which such Holders are entitled to vote.
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The Holders of at least a Majority in Liquidation Amount of the Capital
Securities, present in person or by proxy, shall constitute a quorum at any
meeting of the Holders of the Capital Securities.
If a quorum is present at a meeting, an affirmative vote by the Holders
present, in person or by proxy, holding Capital Securities representing at least
a majority of the aggregate Liquidation Amount of the Capital Securities held by
the Holders present, either in person or by proxy, at such meeting shall
constitute the action of the Holders of the Capital Securities, unless this
Trust Agreement requires a greater number of affirmative votes.
SECTION 6.4. Voting Rights.
Holders shall be entitled to one vote for each $25 of Liquidation Amount
represented by their Outstanding Trust Securities in respect of any matter as to
which such Holders are entitled to vote.
SECTION 6.5. Proxies, etc.
At any meeting of Holders, any Holder entitled to vote thereat may vote by
proxy, provided that no proxy shall be voted at any meeting unless it shall have
been placed on file with the Property Trustee, or with such other officer or
agent of the Issuer Trust as the Property Trustee may direct, for verification
prior to the time at which such vote shall be taken. Pursuant to a resolution of
the Property Trustee, proxies may be solicited in the name of the Property
Trustee or one or more officers of the Property Trustee. Only Holders of record
shall be entitled to vote. When Trust Securities are held jointly by several
persons, any one of them may vote at any meeting in person or by proxy in
respect of such Trust Securities, but if more than one of them shall be present
at such meeting in person or by proxy, and such joint owners or their proxies so
present disagree as to any vote to be cast, such vote shall not be received in
respect of such Trust Securities. A proxy purporting to be executed by or on
behalf of a Holder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger. No
proxy shall be valid more than three years after its date of execution.
SECTION 6.6. Holder Action by Written Consent.
Any action that may be taken by Holders at a meeting may be taken without
a meeting if Holders holding at least a Majority in Liquidation Amount of all
Capital Securities entitled to vote in respect of such action (or such larger
proportion thereof as shall be required by any other provision of this Trust
Agreement) shall consent to the action in writing. Any action that may be taken
by the Holders of all the Common Securities may be taken if such Holders shall
consent to the action in writing.
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SECTION 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Holders who are entitled to notice of
and to vote at any meeting or by written consent, or to participate in any
distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Administrators or Property Trustee may from time to time fix a date,
not more than 90 days prior to the date of any meeting of Holders or the payment
of a distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such purposes.
SECTION 6.8. Acts of Holders.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be given, made or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as otherwise expressly provided herein, such
action shall become effective when such instrument or instruments are delivered
to the Property Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Trust Agreement and (subject to Section 8.1) conclusive
in favor of the Issuer Trustees and the Administrators, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than such signer's individual capacity, such
certificate or affidavit shall also constitute sufficient proof of such signer's
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner that any Issuer Trustee or Administrator receiving the same deems
sufficient.
The ownership of Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Trust Security shall bind every future Holder of
the same Trust Security and the Holder of every Trust Security issued upon the
registration or transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Issuer Trustees,
the Administrators or the Issuer Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
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Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise among the Holders, the Administrators or the
Issuer Trustees with respect to the authenticity, validity or binding nature of
any request, demand, authorization, direction, consent, waiver or other Act of
such Holder or Issuer Trustee under this Article VI, then the determination of
such matter by the Property Trustee shall be conclusive with respect to such
matter.
SECTION 6.9. Inspection of Records.
Upon reasonable prior written notice to the Administrators and the
Property Trustee, the records of the Issuer Trust shall be open to inspection by
any Holder during normal business hours for any purpose reasonably related to
such Holder's interest as a Holder.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and
the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf of
and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Holders that:
(a) the Property Trustee is a New York banking corporation, duly
organized, validly existing and in good standing under the laws of the
State of New York;
(b) the Property Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware banking corporation;
(d) the Delaware Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
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(e) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and constitutes
the valid and legally binding agreement of each of the Property Trustee
and the Delaware Trustee enforceable against each of them in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(f) the execution, delivery and performance of this Trust Agreement
has been duly authorized by all necessary corporate or other action on the
part of the Property Trustee and the Delaware Trustee and does not require
any approval of stockholders of the Property Trustee and the Delaware
Trustee and such execution, delivery and performance will not (i) violate
the Charter or By-laws of the Property Trustee or the Delaware Trustee,
(ii) to the best of each of the Property Trustee's and the Delaware
Trustee's knowledge without any independent investigation, violate any
provision of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation or imposition of, any Lien on any
properties included in the Trust Property pursuant to the provisions of,
any indenture, mortgage, credit agreement, license or other agreement or
instrument to which the Property Trustee or the Delaware Trustee is a
party or by which it is bound, or (iii) violate any applicable law,
governmental rule or regulation of the United States or the State of
Delaware, as the case may be, governing the banking, trust or general
powers of the Property Trustee or the Delaware Trustee (as appropriate in
context) or any order, judgment or decree applicable to the Property
Trustee or the Delaware Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Property Trustee or the
Delaware Trustee (as appropriate in context) contemplated herein requires
the consent or approval of, the giving of notice to, the registration with
or the taking of any other action with respect to any governmental
authority or agency under any existing law of the United States or the
State of Delaware governing the banking, trust or general powers of the
Property Trustee or the Delaware Trustee, as the case may be; and
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge without any
independent investigation, threatened against or affecting the Property
Trustee or the Delaware Trustee in any court or before any governmental
authority, agency or arbitration board or tribunal that, individually or
in the aggregate, would materially and adversely affect the Issuer Trust
or would question the right, power and authority of the Property Trustee
or the Delaware Trustee, as the case may be, to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
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SECTION 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Holders that:
(a) the Securities Certificates issued at the Time of Delivery on
behalf of the Issuer Trust have been duly authorized and will have been
duly and validly executed, issued and delivered by the Issuer Trustees
pursuant to the terms and provisions of, and in accordance with the
requirements of, this Trust Agreement and the Holders will be, as of each
such date, entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable
by the Issuer Trust (or the Issuer Trustees on behalf of the Issuer Trust)
under the laws of the State of Delaware or any political subdivision
thereof in connection with the execution, delivery and performance by
either Issuer Trustee of this Trust Agreement.
ARTICLE VIII.
THE ISSUER TRUSTEES; THE ADMINISTRATORS
SECTION 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Issuer Trustees and the
Administrators shall be as provided by this Trust Agreement and, in the case of
the Property Trustee, by the Trust Indenture Act. Notwithstanding the foregoing,
but subject to Section 8.1(c), no provision of this Trust Agreement shall
require any of the Issuer Trustees or Administrators to expend or risk its or
their own funds or otherwise incur any financial liability in the performance of
any of its or their duties hereunder, or in the exercise of any of its or their
rights or powers, if it or they shall have reasonable grounds for believing that
repayment of such funds or indemnity reasonably satisfactory to it against such
risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to the Issuer
Trustees or the Administrators shall be subject to the provisions of this
Section 8.1. Nothing in this Trust Agreement shall be construed to release an
Administrator from liability for his or her own negligent action, its own
negligent failure to act, or his or her own wilful misconduct. To the extent
that, at law or in equity, an Issuer Trustee or Administrator has duties and
liabilities relating to the Issuer Trust or to the Holders, such Issuer Trustee
or Administrator shall not be liable to the Issuer Trust or to any Holder for
such Issuer Trustee's or Administrator's good faith reliance on the provisions
of this Trust Agreement. The provisions of this Trust Agreement, to the extent
that they restrict the duties and liabilities of the Issuer Trustees and
Administrators otherwise existing at law or in equity, are agreed by the
Depositor and the Holders to replace such other duties and liabilities of the
Issuer Trustees and Administrators.
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(b) All payments made by the Property Trustee or a Paying Agent in respect
of the Trust Securities shall be made only from the revenue and proceeds from
the Trust Property and only to the extent that there shall be sufficient revenue
or proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Holder, by its
acceptance of a Trust Security, agrees that it will look solely to the revenue
and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that neither the Issuer Trustees nor
the Administrators are personally liable to it for any amount distributable in
respect of any Trust Security or for any other liability in respect of any Trust
Security. This Section 8.1(b) does not limit the liability of the Issuer
Trustees expressly set forth elsewhere in this Trust Agreement or, in the case
of the Property Trustee, in the Trust Indenture Act.
(c) If an Event of Default has occurred and is continuing, the Property
Trustee shall enforce this Trust Agreement for the benefit of the Holders.
(d) The Property Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Trust Agreement (including pursuant to Section 10.10), and no implied covenants
shall be read into this Trust Agreement against the Property Trustee. If an
Event of Default has occurred (that has not been cured or waived pursuant to
Section 5.13), the Property Trustee shall exercise such of the rights and powers
vested in it by this Trust Agreement and use the same degree of care and skill
in its exercise thereof as a prudent person would exercise or use in the conduct
of his or her own affairs.
(e) No provision of this Trust Agreement shall be construed to relieve the
Property Trustee or the Delaware Trustee from liability for its own negligent
action, its own negligent failure to act, or its own wilful misconduct, except
that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Property Trustee shall
be determined solely by the express provisions of this Trust
Agreement (including pursuant to Section 10.10), and the Property
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Trust
Agreement (including pursuant to Section 10.10); and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Trust Agreement;
but in the case of any such certificates or opinions that by any
provision hereof or of the Trust Indenture Act are specifically
required to be
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furnished to the Property Trustee, the Property Trustee shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Trust Agreement (but need not
confirm or investigate the accuracy of any mathematical calculations
or other facts stated therein).
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of at least a Majority in Liquidation Amount
of the Capital Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon the Property
Trustee under this Trust Agreement;
(iv) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Debentures and the Payment
Account shall be to deal with such Property in a similar manner as the
Property Trustee deals with similar property for its own account, subject
to the protections and limitations on liability afforded to the Property
Trustee under this Trust Agreement and the Trust Indenture Act;
(v) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree with the Depositor;
and money held by the Property Trustee need not be segregated from other
funds held by it except in relation to the Payment Account maintained by
the Property Trustee pursuant to Section 3.1 and except to the extent
otherwise required by law;
(vi) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrators or the Depositor with their
respective duties under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of any other Issuer
Trustee, the Administrators or the Depositor; and
(vii) Subject to Section 8.1(c), no provision of this Trust
Agreement shall require the Property Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or powers, if
the Property Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably assured to it under
the terms of this Trust Agreement or indemnity reasonably satisfactory to
it against such risk or liability is not reasonably assured to it.
(f) The Administrators shall not be responsible for monitoring the
compliance by the Issuer Trustees or the Depositor with their respective duties
under this Trust Agreement, nor shall
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either Administrator be liable for the default or misconduct of any other
Administrator, the Issuer Trustees or the Depositor.
SECTION 8.2. Certain Notices.
Within five Business Days after the occurrence of any Event of Default
actually known to a Responsible Officer of the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
10.8, notice of such Event of Default to the Holders and the Administrators,
unless such Event of Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the Depositor's
exercise of its right to defer the payment of interest on the Debentures
pursuant to the Indenture, the Property Trustee shall transmit, in the manner
and to the extent provided in Section 10.8, notice of such exercise to the
Holders and the Administrators, unless such exercise shall have been revoked.
The Property Trustee shall not be deemed to have knowledge of any Event of
Default unless the Property Trustee shall have received written notice or a
Responsible Officer of the Property Trustee charged with the administration of
this Trust Agreement shall have obtained actual knowledge of such Event of
Default.
SECTION 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written representation of a
Holder or transferee, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond, debenture, note, other evidence of indebtedness or other
paper or document (whether in its original or facsimile form) believed by
it to be genuine and to have been signed or presented by the proper party
or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of
action, (ii) in construing any of the provisions of this Trust Agreement
the Property Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein, or (iii) the Property Trustee is unsure
of the application of any provision of this Trust Agreement, then, except
as to any matter as to which the Holders of the Capital Securities are
entitled to vote under the terms of this Trust Agreement, the Property
Trustee shall deliver a notice to the Depositor requesting the Depositor's
opinion as to the course of action to be taken and the Property Trustee
shall take such action, or refrain from taking such action, as the
Property Trustee shall deem advisable and in the best interests of the
Holders, in which event the Property
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Trustee shall have no liability except for its own bad faith, negligence
or wilful misconduct;
(c) any direction or act of the Depositor contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officers' Certificate;
(d) any direction or act of an Administrator contemplated by this
Trust Agreement shall be sufficiently evidenced by a certificate executed
by such Administrator and setting forth such direction or act;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or re-registration thereof;
(f) the Property Trustee may consult with counsel of its own
selection (which counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees) and the advice of such
counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon and in accordance with such advice; the Property
Trustee shall have the right at any time to seek instructions concerning
the administration of this Trust Agreement from any court of competent
jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Trust Agreement at the
request or direction of any of the Holders pursuant to this Trust
Agreement, unless such Holders shall have offered to the Property Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities that might be incurred by it in compliance with such request
or direction; provided that, nothing contained in this Section 8.3(g)
shall be taken to relieve the Property Trustee, upon the occurrence of an
Event of Default, of its obligation to exercise the rights and powers
vested in it by this Trust Agreement;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to do
so by one or more Holders, but the Property Trustee may make such further
inquiry or investigation into such facts or matters as it may see fit at
the expense of the Depositor and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents, attorneys, custodians or nominees, provided that the Property
Trustee shall be responsible for its
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own negligence, bad faith or wilful misconduct with respect to selection
of any agent, attorney, custodian or nominee appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request instructions from the
Holders (which instructions may only be given by the Holders of the same
proportion in Liquidation Amount of the Trust Securities as would be
entitled to direct the Property Trustee under the terms of the Trust
Securities in respect of such remedy, right or action), (ii) may refrain
from enforcing such remedy or right or taking such other action until such
instructions are received and (iii) shall be fully protected in acting in
accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust Agreement,
the Property Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Trust Agreement.
(l) when the Property Trustee incurs expenses or renders services in
connection with a Bankruptcy Event, such expenses (including legal fees
and expenses of its counsel) and the compensation for such services are
intended to constitute expenses of administration under any bankruptcy law
or law relating to creditors rights generally.
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on any Issuer Trustee or Administrator to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which such Person shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to any Issuer Trustee or Administrator
shall be construed to be a duty.
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities Certificates shall be
taken as the statements of the Issuer Trust, and the Issuer Trustees and the
Administrators do not assume any responsibility for their correctness. The
Issuer Trustees and the Administrators shall not be accountable for the use or
application by the Depositor of the proceeds of the Debentures.
SECTION 8.5. May Hold Securities.
The Administrators, any Issuer Trustee or any other agent of any Issuer
Trustee or the Issuer Trust, in its individual or any other capacity, may become
the owner or pledgee of Trust Securities and, subject to Sections 8.8 and 8.13,
and except as provided in the definition of the
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term "Outstanding" in Article I, may otherwise deal with the Issuer Trust with
the same rights it would have if it were not an Administrator, Issuer Trustee or
such other agent.
SECTION 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to each Issuer Trustee and Paying Agent from time to time
such reasonable compensation for all services rendered by them hereunder
as may be agreed upon from time to time in writing by the Depositor and
such Issuer Trustee or Paying Agent, as the case may be, from time to time
(which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse each
Issuer Trustee upon request for all reasonable expenses, disbursements and
advances incurred or made by each Issuer Trustee and Paying Agent in
accordance with any provision of this Trust Agreement (including the
reasonable compensation and the expenses and disbursements of their agents
and counsel), except any such expense, disbursement or advance as may be
attributable to their negligence or wilful misconduct; and
(c) to the fullest extent permitted by applicable law, to fully
indemnify and hold harmless (i) each Issuer Trustee, (ii) each
Administrator, (iii) each Paying Agent, (iv) any Affiliate of any Issuer
Trustee, (v) any officer, director, shareholder, employee, representative
or agent of any Issuer Trustee, and (vi) any employee or agent of the
Issuer Trust (referred to herein as an "Indemnified Person") from and
against any and all loss, damage, liability, tax (other than income,
franchise or other taxes imposed on amounts paid pursuant to (a) or (b)
hereof), penalty, expense or claim of any kind or nature whatsoever
incurred by such Indemnified Person by reason of the creation, operation
or termination of the Issuer Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Issuer
Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this
Trust Agreement, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of negligence, bad faith or wilful misconduct
with respect to such acts or omissions.
The provisions of this Section 8.6 shall survive the termination of this
Trust Agreement and the removal or resignation of any Issuer Trustee.
No Issuer Trustee or Paying Agent may claim any Lien on any Trust Property
as a result of any amount due pursuant to this Section 8.6.
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The Depositor, any Administrator, any Issuer Trustee and any Paying Agent
may engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Issuer Trust, and the Issuer Trust and the Holders of Trust Securities
shall have no rights by virtue of this Trust Agreement in and to such
independent ventures or the income or profits derived therefrom, and the pursuit
of any such venture, even if competitive with the business of the Issuer Trust,
shall not be deemed wrongful or improper. Neither the Depositor, any
Administrator, any Paying Agent nor any Issuer Trustee shall be obligated to
present any particular investment or other opportunity to the Issuer Trust even
if such opportunity is of a character that, if presented to the Issuer Trust,
could be taken by the Issuer Trust, and the Depositor, any Administrator, any
Issuer Trustee or any Paying Agent shall have the right to take for its own
account (individually or as a partner or fiduciary) or to recommend to others
any such particular investment or other opportunity. Any Issuer Trustee or
Paying Agent may engage or be interested in any financial or other transaction
with the Depositor or any Affiliate of the Depositor, or may act as depository
for, trustee or agent for, or act on any committee or body of holders of,
securities or other obligations of the Depositor or its Affiliates.
In the event that the Property Trustee is also acting as Paying Agent or
Securities Registrar hereunder, the rights and protections afforded to the
Property Trustee pursuant to this Article VIII shall also be afforded to such
Paying Agent or Securities Registrar.
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Issuer
Trustees and Administrators.
(a) There shall at all times be a Property Trustee hereunder with respect
to the Trust Securities. The Property Trustee shall be a Person that is a
national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such, and that has at the time of such appointment a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
8.7 and to the extent permitted by the Trust Indenture Act, the combined capital
and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Property Trustee with respect to the Trust Securities shall cease
to be eligible in accordance with the provisions of this Section 8.7, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article. At the time of appointment, the Property Trustee must have
securities rated in one of the three highest rating categories by a nationally
recognized statistical rating organization.
(b) There shall at all times be one or more Administrators hereunder with
respect to the Trust Securities. Each Administrator shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a
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resident of the State of Delaware, or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law and that shall act through one or more
persons authorized to bind such entity.
SECTION 8.8. Conflicting Interests.
(a) If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
(b) The Guarantee Agreement and the Indenture shall be deemed to be
specifically described in this Trust Agreement for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at any
time or times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust Property may
at the time be located, the Property Trustee shall have power to appoint, and
upon the written request of the Property Trustee, the Depositor and the
Administrators shall for such purpose join with the Property Trustee in the
execution, delivery, and performance of all instruments and agreements necessary
or proper to appoint, one or more Persons approved by the Property Trustee
either to act as co-trustee, jointly with the Property Trustee, of all or any
part of such Trust Property, or to the extent required by law to act as separate
trustee of any such property, in either case with such powers as may be provided
in the instrument of appointment, and to vest in such Person or Persons in the
capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section 8.9. Any co-trustee
or separate trustee appointed pursuant to this Section 8.9 shall either be (i) a
natural person who is at least 21 years of age and a resident of the United
States, or (ii) a legal entity with its principal place of business in the
United States that shall act through one or more persons authorized to bind such
entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed by one or more
Administrators, and the Trust Securities shall be delivered by the
Property Trustee, and all rights, powers,
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duties, and obligations hereunder in respect of the custody of securities,
cash and other personal property held by, or required to be deposited or
pledged with, the Property Trustee specified hereunder shall be exercised
solely by the Property Trustee and not by such co-trustee or separate
trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by
such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property Trustee and such
co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except to the
extent that under any law of any jurisdiction in which any particular act
is to be performed, the Property Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers,
duties and obligations shall be exercised and performed by such co-trustee
or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept
the resignation of or remove any co-trustee or separate trustee appointed
under this Section 8.9, and, in case a Debenture Event of Default has
occurred and is continuing, the Property Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or separate
trustee without the concurrence of the Depositor. Upon the written request
of the Property Trustee, the Depositor shall join with the Property
Trustee in the execution, delivery and performance of all instruments and
agreements necessary or proper to effectuate such resignation or removal.
A successor to any co-trustee or separate trustee so resigning or removed
may be appointed in the manner provided in this Section 8.9.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee or any
other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of
a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate
trustee.
SECTION 8.10 Resignation and Removal; Appointment of Successor.
No resignation or removal of any Issuer Trustee (the "Relevant Trustee")
and no appointment of a successor Issuer Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Issuer
Trustee in accordance with the applicable requirements of Section 8.11.
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Subject to the immediately preceding paragraph, the Relevant Trustee may
resign at any time by giving written notice thereof to the Holders and by
appointing a successor Relevant Trustee. The Relevant Trustee shall appoint a
successor by requesting from at least three Persons meeting the eligibility
requirements its expenses and charges to serve as the Relevant Trustee on a form
provided by the Administrators, and selecting the Person who agrees to the
lowest expenses and charges. If no Person agrees to serve as successor Relevant
Trustee, the Relevant Trustee may petition at the expense of the Depositor any
court of competent jurisdiction for the appointment of a successor Relevant
Trustee.
The Property Trustee or the Delaware Trustee, or both of them, may be
removed by Act of the Holders of at least a Majority in Liquidation Amount of
the Capital Securities, delivered to the Relevant Trustee (in its individual
capacity and, in the case of the Property Trustee, on behalf of the Issuer
Trust) (i) for cause (including upon the occurrence of an Event of Default
described in subparagraph (d) of the definition thereof with respect to the
Relevant Trustee), or (ii) if a Debenture Event of Default shall have occurred
and be continuing at any time.
If a resigning Issuer Trustee shall fail to appoint a successor, or if an
Issuer Trustee shall be removed or become incapable of acting as Issuer Trustee,
or if a vacancy shall occur in the office of any Issuer Trustee for any cause,
the Holders of the Capital Securities, by Act of the Holders of not less than
25% in aggregate Liquidation Amount of the Capital Securities then Outstanding
delivered to such Relevant Trustee, may appoint a successor Relevant Trustee or
Trustees, and such successor Issuer Trustee shall comply with the applicable
requirements of Section 8.11. If no successor Relevant Trustee shall have been
so appointed by the Holders of the Capital Securities and accepted appointment
in the manner required by Section 8.11, any Holder, on behalf of such Holder and
all others similarly situated, or any other Issuer Trustee, may petition at the
expense of the Depositor any court of competent jurisdiction for the appointment
of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of an Issuer Trustee and each appointment of a successor Issuer Trustee
to all Holders in the manner provided in Section 10.8 and shall give notice to
the Depositor and to the Administrators. Each notice shall include the name of
the successor Relevant Trustee and the address of its Corporate Trust Office if
it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, if any Delaware Trustee who is a natural person dies or becomes, in
the opinion of the Holders of the Common Securities, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by the Property Trustee following the procedures regarding expenses
and charges set forth above (with the successor being a Person who satisfies the
eligibility requirement for the Delaware Trustee set forth in Section 8.7).
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SECTION 8.11 Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant Trustee, the
retiring Relevant Trustee and each successor Relevant Trustee with respect to
the Trust Securities shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Issuer Trust, and (b) shall add to or change any of the
provisions of this Trust Agreement as shall be necessary to provide for or
facilitate the administration of the Issuer Trust by more than one Relevant
Trustee, it being understood that nothing herein or in such amendment shall
constitute such Relevant Trustees co-trustees and upon the execution and
delivery of such amendment the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee; but, on request of the Issuer Trust or any successor Relevant
Trustee such retiring Relevant Trustee shall (after being paid all amounts due
it and its agents and counsel) duly assign, transfer and deliver to such
successor Relevant Trustee all Trust Property, all proceeds thereof and money
held by such retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Issuer Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be.
No successor Relevant Trustee shall accept its appointment unless at the
time of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article.
SECTION 8.12 Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person, succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided that such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
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SECTION 8.13 Preferential Collection of Claims Against Depositor or Issuer
Trust.
If and when the Property Trustee shall be or become a creditor of the
Depositor or the Issuer Trust (or any other obligor upon the Capital
Securities), the Property Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Depositor or
the Issuer Trust (or any such other obligor).
SECTION 8.14 Property Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Issuer Trust or any other obligor upon the Trust
Securities or the property of the Issuer Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable and irrespective of whether
the Property Trustee shall have made any demand on the Issuer Trust for the
payment of any past due Distributions) shall be entitled and empowered, to the
fullest extent permitted by law, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Property Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Property Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement adjustment or compensation affecting the Trust
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
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SECTION 8.15 Reports by Property Trustee.
(a) Not later than May 1 of each year commencing with May 1, 2000, the
Property Trustee shall transmit to all Holders in accordance with Section 10.9,
and to the Depositor, a brief report, dated as of the immediately preceding
December 31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if to the
best of its knowledge it has continued to be eligible under said Section,
a written statement to such effect;
(ii) a statement that the Property Trustee has complied with all of
its obligations under this Trust Agreement during the twelve-month period
(or, in the case of the initial report, the period since the Closing Date)
ending with such December 31 or, if the Property Trustee has not complied
in any material respect with such obligations, a description of such
noncompliance; and
(iii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken by
the Property Trustee in the performance of its duties hereunder which it
has not previously reported and which in its opinion materially affects
the Trust Securities.
(b) In addition the Property Trustee shall transmit to Holders such
reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Property Trustee with each national stock exchange, the
Nasdaq National Market or such other interdealer quotation system or
self-regulatory organization upon which the Trust Securities are listed or
traded, if any, with the Commission and with the Depositor.
SECTION 8.16 Reports to the Property Trustee.
Each of the Depositor and the Administrators on behalf of the Issuer Trust
shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act. The Depositor and the Administrators shall annually file with the Property
Trustee a certificate specifying whether such Person is in compliance with all
of the terms and covenants applicable to such Person hereunder.
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SECTION 8.17 Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrators shall provide to the Property
Trustee such evidence of compliance with any conditions precedent, if any,
provided for in this Trust Agreement that relate to any of the matters set forth
in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) of the Trust
Indenture Act shall be given in the form of an Officers' Certificate.
SECTION 8.18 Number of Issuer Trustees.
(a) The number of Issuer Trustees shall be two, provided that the Property
Trustee and the Delaware Trustee may be the same Person.
(b) If an Issuer Trustee ceases to hold office for any reason, a vacancy
shall occur. The vacancy shall be filled with an Issuer Trustee appointed in
accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy, incompetence
or incapacity to perform the duties of an Issuer Trustee shall not operate to
annul, dissolve or terminate the Issuer Trust.
SECTION 8.19 Delegation of Power.
(a) Any Administrator may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purpose of executing any documents contemplated in Section 2.7(a),
including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) The Administrators shall have power to delegate from time to time to
such of their number the doing of such things and the execution of such
instruments either in the name of the Issuer Trust or the names of the
Administrators or otherwise as the Administrators may deem expedient, to the
extent such delegation is not prohibited by applicable law or contrary to the
provisions of this Trust Agreement.
SECTION 8.20 Appointment of Administrators.
(a) The Administrators shall initially be [ ] and [ ], and their
successors shall be appointed by the Holders of a Majority in Liquidation Amount
of the Common Securities and may resign or be removed by the Holders of a
Majority in Liquidation Amount of the Common Securities at any time. Upon any
resignation or removal, the Depositor shall appoint a successor Administrator.
Each Administrator shall sign an agreement agreeing to comply with the terms of
this Trust Agreement. If at any time there is no Administrator, the Property
Trustee or any Holder who has been a Holder of Trust Securities for at least six
months
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may petition any court of competent jurisdiction for the appointment of one or
more Administrators.
(b) Whenever a vacancy in the number of Administrators shall occur, until
such vacancy is filled by the appointment of an Administrator in accordance with
this Section 8.20, the Administrators in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrators and shall discharge all the duties imposed
upon the Administrators by this Trust Agreement.
(c) Notwithstanding the foregoing or any other provision of this Trust
Agreement, if any Administrator who is a natural person dies or becomes, in the
opinion of the Holder of a Majority in Liquidation Amount the Common Securities,
incompetent or incapacitated, the vacancy created by such death, incompetence or
incapacity may be filled by the unanimous act of the remaining Administrators,
if there were at least two of them prior to such vacancy, and by the Depositor,
if there were not two such Administrators immediately prior to such vacancy
(with the successor being a Person who satisfies the eligibility requirement for
Administrators set forth in Section 8.7).
ARTICLE IX.
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Issuer Trust shall automatically dissolve,
and its affairs be wound up, on [55 years from the date of formation] (the
"Expiration Date"), and the Trust Property shall be distributed in accordance
with Section 9.4.
SECTION 9.2. Early Dissolution.
The first to occur of any of the following events is an "Early Dissolution
Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor, in its capacity as the
Holder of the Common Securities, unless the Depositor shall transfer the
Common Securities as provided by Section 5.11, in which case this
provision shall refer instead to any such successor Holder of the Common
Securities;
(b) the written direction to the Property Trustee from the Holder of
the Common Securities at any time to dissolve the Issuer Trust and to
distribute the Debentures to Holders in exchange for the Capital
Securities (which direction is optional and wholly within the discretion
of the Holder of the Common Securities);
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(c) the redemption of all of the Trust Securities in connection with
the redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Issuer Trust by a
court of competent jurisdiction.
SECTION 9.3. Termination.
The respective obligations and responsibilities of the Issuer Trustees,
the Administrators and the Issuer Trust created and continued hereby shall
terminate upon the latest to occur of the following: (a) the distribution by the
Property Trustee to Holders of all amounts required to be distributed hereunder
upon the liquidation of the Issuer Trust pursuant to Section 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2; (b) the
payment of any expenses owed by the Issuer Trust; (c) the discharge of all
administrative duties of the Administrators, including the performance of any
tax reporting obligations with respect to the Issuer Trust or the Holders; and
(d) the filing by either of the Issuer Trustees (each of whom is authorized
hereby to file such certificate) of a certificate of cancellation of the Issuer
Trust in the Office of the Secretary of State of the State of Delaware.
SECTION 9.4. Liquidation.
(a) If an Early Dissolution Event specified in clause (a), (b) or (d) of
Section 9.2 occurs or upon the Expiration Date, the Issuer Trust shall be
liquidated by the Property Trustee as expeditiously as the Property Trustee
determines to be possible by distributing, after satisfaction of liabilities to
creditors of the Issuer Trust as provided by applicable law, to each Holder a
Like Amount of Debentures, subject to Section 9.4(d). Notice of liquidation
shall be given by the Property Trustee by first-class mail, postage prepaid
mailed not less than 30 nor more than 60 days prior to the Liquidation Date to
each Holder of Trust Securities at such Holder's address appearing in the
Securities Register. All such notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Securities
Certificates not surrendered for exchange will be deemed to represent a
Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Securities Certificates for Debentures, or if
Section 9.4(d) applies receive a Liquidation Distribution, as the Property
Trustee (after consultation with the Administrators) shall deem
appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Issuer Trust and distribution of the Debentures to Holders,
the Property Trustee, either itself
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acting as exchange agent or through the appointment of a separate exchange
agent, shall establish a record date for such distribution (which shall be the
15th day (whether or not a business day) prior to the Liquidation Date) and,
establish such procedures as it shall deem appropriate to effect the
distribution of Debentures in exchange for the Outstanding Securities
Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation
Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii)
certificates representing a Like Amount of Debentures will be issued to Holders
of Securities Certificates, upon surrender of such Certificates to the exchange
agent for exchange, (iii) Securities Certificates not so surrendered for
exchange will be deemed to represent a Like Amount of Debentures bearing accrued
and unpaid interest in an amount equal to the accumulated and unpaid
Distributions on such Securities Certificates until such certificates are so
surrendered (and until such certificates are so surrendered, no payments of
interest or principal will be made to Holders of Securities Certificates with
respect to such Debentures) and (iv) all rights of Holders holding Trust
Securities will cease, except the right of such Holders to receive Debentures
upon surrender of Securities Certificates.
(d) If, notwithstanding the other provisions of this Section 9.4, whether
because of an order for dissolution entered by a court of competent jurisdiction
or otherwise, distribution of the Debentures in the manner provided herein is
determined by the Property Trustee not to be practical, or if an Early
Dissolution Event specified in clause (c) of Section 9.2 occurs, the Trust
Property shall be liquidated, and the Issuer Trust shall be dissolved by the
Property Trustee in such manner as the Property Trustee determines. In such
event, on the date of the dissolution of the Issuer Trust, Holders will be
entitled to receive out of the assets of the Issuer Trust available for
distribution to Holders, after satisfaction of liabilities to creditors of the
Issuer Trust as provided by applicable law, an amount equal to the Liquidation
Amount per Trust Security plus accumulated and unpaid Distributions thereon to
the date of payment (such amount being the "Liquidation Distribution"). If, upon
any such dissolution, the Liquidation Distribution can be paid only in part
because the Issuer Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Issuer Trust on the Trust Securities shall
be paid on a pro rata basis (based upon Liquidation Amounts). The Holder of the
Common Securities will be entitled to receive Liquidation Distributions upon any
such dissolution pro rata (determined as aforesaid) with Holders of all
Securities, except that, if an Event of Default has occurred and is continuing,
the Capital Securities shall have a priority over the Common Securities as
provided in Section 4.3.
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of
Issuer Trust.
The Issuer Trust may not merge with or into, consolidate, amalgamate, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except pursuant
to this Article IX. At the request of the Holders of the Common Securities and
without the consent of any Holder of the Capital Securities or any Issuer
Trustee or Administrator, the Issuer Trust may merge with or into, consolidate,
amalgamate, or be
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replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to a trust organized as such under the laws of any State;
provided, that (i) such successor entity either (A) expressly assumes all of the
obligations of the Issuer Trust with respect to the Capital Securities, or (B)
substitutes for the Capital Securities other securities having substantially the
same terms as the Capital Securities (the "Successor Securities") so long as the
Successor Securities have the same priority as the Capital Securities with
respect to distributions and payments upon liquidation, redemption and
otherwise, (ii) a trustee of such successor entity possessing the same powers
and duties as the Property Trustee is appointed to hold the Debentures, (iii)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not cause the Capital Securities (including any Successor Securities)
to be downgraded by any nationally recognized statistical rating organization
that then assigns a rating to the Capital Securities, (iv) the Successor
Securities are listed, or any Successor Securities will be listed upon notice of
issuance, on any national securities exchange or other organization on which the
Capital Securities are then listed, if any, (v) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of the Capital
Securities (including any Successor Securities) in any material respect, (vi)
such successor entity has a purpose substantially identical to that of the
Issuer Trust, (vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Property Trustee has received an
Opinion of Counsel to the effect that (A) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of the Capital
Securities (including any Successor Securities) in any material respect, and (B)
following such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, neither the Issuer Trust nor such successor entity will be
required to register as an "investment company" under the Investment Company
Act, and (viii) the Depositor or its permitted transferee owns all of the Common
Securities of such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to the extent provided
by the Guarantee Agreement. Notwithstanding the foregoing, the Issuer Trust
shall not, except with the consent of holders of all of the Capital Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Issuer Trust or the successor
entity to be taxable as a corporation or classified as other than a grantor
trust for United States federal income tax purposes or cause the Junior
Subordinated Debentures or any security succeeding such Debentures to be treated
as other than indebtedness of the Corporation for United States federal income
tax purposes unless Issuer Trust first obtains the consent of all Holders of
Outstanding Capital Securities.
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ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.1 Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death or incapacity of any person
having an interest, beneficial or otherwise, in Trust Securities shall not
operate to terminate this Trust Agreement, nor entitle the legal representatives
or heirs of such person or any Holder for such person, to claim an accounting,
take any action or bring any proceeding in any court for a partition or winding
up of the arrangements contemplated hereby, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
SECTION 10.2 Agreed Tax Treatment of Issuer Trust and Trust Securities.
The parties hereto and, by its acceptance or acquisition of a Trust
Security or a beneficial interest therein the Holder of, and any person that
acquires a beneficial interest in, such Trust Security intend and agree to treat
the Issuer Trust as a grantor trust for United States federal, state and local
tax purposes, and to treat the Trust Securities (including but not limited to
all payments and proceeds with respect to such Trust Securities) as undivided
beneficial ownership interests in the Trust Property (and payments and proceeds
therefrom, respectively) for United States federal, state and local tax
purposes. The provisions of this Trust Agreement shall be interpreted to further
this intention and agreement of the parties.
SECTION 10.3 Amendment.
(a) This Trust Agreement may be amended from time to time by the Property
Trustee and the Holder of all the Common Securities, without the consent of any
Holder of the Capital Securities, (i) to cure any ambiguity, correct or
supplement any provision herein that may be inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this Trust Agreement, which shall not be inconsistent
with the other provisions of this Trust Agreement, or (ii) to modify, eliminate
or add to any provisions of this Trust Agreement to such extent as shall be
necessary to ensure that the Issuer Trust will not be taxable as a corporation
or will be classified as other than a grantor trust for United States federal
income tax purposes at all times that any Trust Securities are Outstanding or to
ensure that the Junior Subordinated Debentures are treated as indebtedness of
the Corporation for United States federal income tax purposes, or to ensure that
the Issuer Trust will not be required to register as an "investment company"
under the Investment Company Act; provided, however, that in the case of either
clauses (i) or (ii) such action shall not adversely affect in any material
respect the interests of any Holder and does not become effective until notice
of the amendment is given to the Holders of Outstanding Capital Securities.
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(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Property Trustee, the Delaware Trustee and
the Holder of all of the Common Securities and with (i) the consent of Holders
of at least a Majority in Liquidation Amount of the Capital Securities, and (ii)
receipt by the Issuer Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Issuer Trustees or the
Administrators in accordance with such amendment will not cause the Issuer Trust
to be taxable as a corporation or classified as other than a grantor trust for
United States federal income tax purposes or affect the treatment of the Junior
Subordinated Debentures as indebtedness of the Corporation for United States
federal income tax purposes or affect the Issuer Trust's exemption from status
as an "investment company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Holder (such consent being
obtained in accordance with Section 6.3 or 6.6 hereof), this Trust Agreement may
not be amended to (i) change the amount or timing of any Distribution on the
Trust Securities or otherwise adversely affect the amount of any Distribution
required to be made in respect of the Trust Securities as of a specified date,
or (ii) restrict the right of a Holder to institute suit for the enforcement of
any such payment on or after such date; and notwithstanding any other provision
herein, without the unanimous consent of the Holders (such consent being
obtained in accordance with Section 6.3 or 6.6 hereof), this paragraph (c) of
this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Issuer Trustee shall enter into or consent to any amendment to this Trust
Agreement that would cause the Issuer Trust to fail or cease to qualify for the
exemption from status as an "investment company" under the Investment Company
Act or to be taxable as a corporation or to be classified as other than a
grantor trust for United States federal income tax purposes or that would cause
the Junior Subordinated Debentures to fail or cease to be treated as
indebtedness of the Corporation for United States federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor and the Administrators, this Trust
Agreement may not be amended in a manner that imposes any additional obligation
on the Depositor or the Administrators.
(f) If any amendment to this Trust Agreement is made, the Administrators
or the Property Trustee shall promptly provide to the Depositor a copy of such
amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement that affects its
own rights, duties or immunities under this Trust Agreement. The Property
Trustee shall be provided with an Opinion of Counsel and an Officers'
Certificate stating that any amendment to this Trust Agreement is in compliance
with this Trust Agreement and all conditions precedent herein provided for
relating to such action have been met.
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SECTION 10.4 Separability.
If any provision in this Trust Agreement or in the Securities Certificates
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 10.5 Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
HOLDERS, THE ISSUER TRUST, THE DEPOSITOR, THE ISSUER TRUSTEES AND THE
ADMINISTRATORS WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES
SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE AND ALL RIGHTS, REMEDIES AND OBLIGATIONS SHALL BE GOVERNED BY SUCH LAWS
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS OF THE STATE OF DELAWARE OR
ANY OTHER JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAW OF ANY
JURISDICTION OTHER THAN THE STATE OF DELAWARE; PROVIDED, HOWEVER, THAT THERE
SHALL NOT BE APPLICABLE TO ANY OF THE AFOREMENTIONED PARTIES OR THIS TRUST
AGREEMENT OR THE TRUST SECURITIES ANY PROVISION OF THE LAWS (STATUTORY OR
COMMON) OF THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT RELATE TO OR
REGULATE, IN A MANNER INCONSISTENT WITH THE TERMS HEREOF (A) THE FILING WITH ANY
COURT OR GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE
FEES AND CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST BONDS FOR TRUSTEES,
OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY FOR OBTAINING COURT
OR OTHER GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION, HOLDING OR
DISPOSITION OF REAL OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO
TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF
RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL, (F) RESTRICTIONS OR
LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR CONCENTRATION OF TRUST
INVESTMENTS OR REQUIREMENTS RELATING TO THE TITLING, STORAGE OR OTHER MANNER OF
HOLDING OR INVESTING TRUST ASSETS OR (G) THE ESTABLISHMENT OF FIDUCIARY OR OTHER
STANDARDS OF RESPONSIBILITY OR LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES
THAT ARE INCONSISTENT WITH THE LIMITATIONS OR LIABILITIES OR AUTHORITIES AND
POWERS OF THE TRUSTEES HEREUNDER AS SET FORTH OR REFERENCED IN THIS TRUST
AGREEMENT. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THE
ISSUER TRUST.
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SECTION 10.6 Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day that is a Business Day (except as
otherwise provided in Sections 4.1(a) and 4.2(d)), with the same force and
effect as though made on the date fixed for such payment, and no Distributions
shall accumulate on such unpaid amount for the period after such date.
SECTION 10.7 Successors.
This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Depositor, the Issuer Trust, the Administrators and any
Issuer Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article VIII of the Indenture and pursuant to which the assignee
agrees in writing to perform the Depositor's obligations hereunder, the
Depositor shall not assign its obligations hereunder.
SECTION 10.8 Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
SECTION 10.9 Reports, Notices and Demands.
Any report, notice, demand or other communication that by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
any Holder or the Depositor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a Holder
of Capital Securities, to such Holder as such Holder's name and address may
appear on the Securities Register; and (b) in the case of the Holder of all the
Common Securities or the Depositor, to CSC Holdings, Inc., 1111 Stewart Avenue,
Bethpage, New York 11714, Attention: Secretary, facsimile no.: [ ], or to
such other address as may be specified in a written notice by the Holder of all
the Common Securities or the Depositor, as the case may be, to the Property
Trustee. Such notice, demand or other communication to or upon a Holder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission. Such notice, demand or other communication to
or upon the Depositor shall be deemed to have been sufficiently given or made
only upon actual receipt of the writing by the Depositor.
Any notice, demand or other communication that by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Issuer, the Property Trustee, the Delaware Trustee, the Administrators or the
Trust shall be given in writing by deposit thereof, first-class postage prepaid,
in the U.S. mail, hand delivery or facsimile
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transmission, addressed to such Person as follows: (a) with respect to the
Property Trustee to The Bank of New York, 101 Barclay Street, Floor 21 West, New
York, New York 10286; Attention: Corporate Trust Administration, facsimile no.:
(212) 815-5915; (b) with respect to the Delaware Trustee, to The Bank of New
York (Delaware), [ ], Attention: [ ]; (c) with respect
to the Administrators, to them at the address above for notices to the
Depositor, marked "Attention: Administrators of CSC Capital I"; and (d) with
respect to the Issuer Trust, to its principal office specified in Section 2.1,
with a copy to the Property Trustee. Such notice, demand or other communication
to or upon the Issuer Trust, the Property Trustee or the Administrators shall be
deemed to have been sufficiently given or made only upon actual receipt of the
writing by the Issuer Trust, the Property Trustee or such Administrator.
SECTION 10.10. Agreement Not to Petition.
Each of the Issuer Trustees and the Depositor agree for the benefit of the
Holders that, until at least one year and one day after the Issuer Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Issuer Trust under any bankruptcy,
insolvency, reorganization or other similar law (including the United States
Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in the
commencement of any proceeding against the Issuer Trust under any Bankruptcy
Law. If the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Holders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Issuer
Trust or the commencement of such action and raise the defense that the
Depositor has agreed in writing not to take such action and should be estopped
and precluded therefrom and such other defenses, if any, as counsel for the
Issuer Trustee or the Issuer Trust may assert.
SECTION 10.11. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions of the Trust Indenture
Act.
(b) The Property Trustee shall be the only Issuer Trustee that is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act through
operation of Section 318(c) thereof, such imposed duties shall control. If any
provision of this Trust Agreement modifies or excludes any provision of the
Trust Indenture Act which may be so modified or excluded, the latter provision
shall be deemed to apply to this Trust Agreement as so modified or excluded, as
the case may be.
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(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Issuer Trust.
SECTION 10.12. Acceptance of Terms of Trust Agreement, Guarantee Agreement
and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY
OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE AGREEMENT
AND THE INDENTURE, AND AGREEMENT TO THE SUBORDINATION PROVISIONS, THE TAX
TREATMENT PROVISION AND OTHER TERMS OF THE GUARANTEE AGREEMENT AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE ISSUER TRUST, SUCH HOLDER
AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE
BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE ISSUER TRUST AND SUCH HOLDER AND
SUCH OTHERS.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Trust Agreement as of the day and year first above written.
CSC HOLDINGS, INC.,
as Depositor
By:
--------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Property Trustee
By:
--------------------------------------
Name:
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee and not
its individual capacity
By:
--------------------------------------
Name:
Title: Vice President
<PAGE>
Exhibit A
CERTIFICATE OF TRUST
OF
CSC CAPITAL I
This Certificate of Trust is being executed as of [ ], 199[ ] for
the purposes of organizing a business trust pursuant to the Delaware Business
Trust Act, 12 Del. C. Section 3801 et seq. (the "Act").
The undersigned hereby certifies as follows:
1. NAME. The name of the business trust is CSC Capital I (the
"Trust").
2. DELAWARE TRUSTEE. The name and business address of the
Delaware resident trustee of the Trust meeting the requirements of Section 3807
of the Act are as follows:
The Bank of New York (Delaware)
[ ]
[ ]
3. EFFECTIVE DATE. This Certificate of Trust shall be effective
immediately upon filing in the Office of the Secretary of State of the State of
Delaware.
IN WITNESS WHEREOF, the undersigned, as trustee of the Trust, has
duly executed this Certificate of Trust as of the day and year first above
written.
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but solely
as Delaware Trustee
By:
--------------------------------------
Name:
Title:
A-1
<PAGE>
Exhibit B
[FORM OF LETTER OF REPRESENTATIONS]
[ ] __, 1999
The Depository Trust Company,
55 Water Street, 49th Floor,
New York, New York 10041-0099.
Attention: General Counsel's Office
Re: CSC Capital I
___% Capital Securities, Series I
CUSIP No.
---------------------------------
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters relating
to the issuance and deposit with The Depository Trust Company ("DTC") of the
book-entry-only portion of the ____% Capital Securities, Series I (the "Capital
Securities"), of CSC Capital I, a statutory business trust formed under the laws
of the State of Delaware (the "Issuer"), governed by the Amended and Restated
Trust Agreement, dated as of [ ] __, 1999 (the "Amended and Restated Trust
Agreement"), between CSC Holdings, Inc. (the "Corporation"), as Depositor, The
Bank of New York, as Property Trustee, The Bank of New York (Delaware), as
Delaware Trustee and Several Holders as defined therein. The payment of
distributions on the Capital Securities and payments due upon liquidation of the
Issuer or redemption of the Capital Securities, to the extent the Issuer has
funds available for the payment thereof, are guaranteed by the Corporation to
the extent set forth in a Guarantee Agreement, dated as of [ ] __, 1999,
between the Corporation and The Bank of New York, as Guarantee Trustee with
respect to the Capital Securities. The Corporation and the Issuer propose to
sell the Capital Securities to the Underwriters (the "Underwriters") pursuant to
a Pricing Agreement, dated as of [ ] __, 1999, by and among the Underwriters,
the Issuer and the Corporation, and the Underwriting Agreement, dated as of [ ]
__, 1999, by and among the Underwriters, the Issuer and the Corporation, and the
Underwriters wish to take delivery of the Capital Securities through DTC. The
Bank of New York is acting as transfer agent and registrar with respect to the
Capital Securities (the "Transfer Agent and Registrar").
To induce DTC to accept the Capital Securities as eligible for
deposit at DTC, and to act in accordance with DTC's rules with respect to the
Capital Securities, the Issuer and the Transfer Agent and Registrar make the
following representations to DTC:
B-1
<PAGE>
1. Prior to the closing of the sale of the Capital Securities to the
Underwriters on [ ] __, 1999, there shall be deposited with, or held by the
Transfer Agent and Registrar as custodian for, DTC one or more global
certificates (individually and collectively, the "Global Certificate")
registered in the name of DTC's nominee, Cede & Co., representing an aggregate
of 20,000,000 Capital Securities and bearing the following legend:
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
2. The Amended and Restated Trust Agreement of the Issuer provides
for the voting by holders (with no provision for revocation of consents or votes
by subsequent holders) of the Capital Securities under certain limited
circumstances. The Issuer shall establish a record date for such purposes and
shall, to the extent possible, give DTC notice of such record date not less than
15 calendar days in advance of such record date.
3. In the event of a stock split, conversion, recapitalization,
reorganization or any other similar transaction resulting in the cancellation of
all or any part of the Series A Capital Securities outstanding, the Issuer or
the Transfer Agent and Registrar shall send DTC a notice of such event as soon
as possible but, at least 5 business days prior to the effective date of such
event.
4. In the event of any distribution on, or an offering or issuance
of rights with respect to, the Capital Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice specifying: (a) the amount
of and conditions, if any, applicable to the payment of any such distribution or
any such offering or issuance of rights; (b) any applicable expiration or
deadline date, or any date by which any action on the part of the holders of
Capital Securities is required; and (c) the date any required notice is to be
mailed by or on behalf of the Issuer to holders of Capital Securities or
published by or on behalf of the Issuer (whether by mail or publication, the
"Publication Date"). Such notice shall be sent to DTC by a secure means (e.g.,
legible telecopy, registered or certified mail, overnight delivery) in a timely
manner designed to assure that such notice is in DTC's possession no later than
the close of business on the business day before the Publication Date. The
Issuer or the Transfer Agent and Registrar will forward such notice either in a
separate secure transmission for each CUSIP number or in a secure transmission
of multiple CUSIP numbers (if applicable) that includes a manifest or list of
each CUSIP number submitted in that transmission. (The party sending such notice
shall have a
B-2
<PAGE>
method to verify subsequently the use of such means and the timeliness of such
notice.) The Publication Date shall be not less than 30 calendar days nor more
than 60 calendar days prior to the payment of any such distribution or any such
offering or issuance of rights with respect to the Capital Securities. After
establishing the amount of payment to be made on the Capital Securities, the
Issuer or the Transfer Agent and Registrar will notify DTC's Dividend Department
of such payment 5 business days prior to payment date. Notices to DTC's Dividend
Department by telecopy shall be sent to (212) 709-1723. Such notices by mail or
by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
The Issuer or the Transfer Agent and Registrar shall confirm DTC's
receipt of such telecopy by telephoning the Dividend Department at (212)
709-1270.
5. In the event of a redemption by the Issuer of the Capital
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Issuer or the Transfer Agent and
Registrar to DTC not less than 30 calendar days prior to such event by a secure
means in the manner set forth in paragraph 4. Such redemption notice shall be
sent to DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190,
and receipt of such notice shall be confirmed by telephoning (516) 227-4070.
Notice by mail or by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the Capital Securities,
notice specifying the terms of the tender and the Publication Date of such
notice shall be sent by the Issuer or the Transfer Agent and Registrar to DTC by
a secure means and in a timely manner as described in paragraph 4. Notices to
DTC pursuant to this paragraph and notices of other corporate actions (including
mandatory tenders, exchanges and capital changes), shall be sent, unless
notification to another department is expressly provided for herein, by telecopy
to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094 and
receipt of such notice shall be confirmed by telephoning (212) 709-6884, or by
mail or any other means to:
B-3
<PAGE>
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advices sent to DTC shall contain the
CUSIP number or numbers of the Capital Securities and the accompanying
designation of the Capital Securities, which, as of the date of this letter, is
"CSC Capital I, ___% Capital Securities. Series I".
8. Distribution payments or other cash payments with respect to the
Capital Securities shall be governed by DTC's current Principal and Income
Payments Rider, a copy of which is attached hereto as Annex I. For purposes of
this letter, the term "Agent" used in Annex I shall be deemed to refer to The
Bank of New York or any successor Property Trustee under the Amended and
Restated Trust Agreement.
9. DTC may direct the Issuer and the Transfer Agent and Registrar to
use any other telecopy number or address of DTC as the number or address to
which notices or payments may be sent.
10. In the event of a conversion, redemption, or any other similar
transaction (e.g., tender made and accepted in response to the Issuer's or the
Transfer Agent and Registrar's invitation) necessitating a reduction in the
aggregate number of Capital Securities outstanding evidenced by the Global
Certificate, DTC, in its discretion: (a) may request the Issuer or the Transfer
Agent and Registrar to issue and countersign a new Global Certificate; or (b)
may make an appropriate notation on the Global Certificate indicating the date
and amount of such reduction.
11. DTC may discontinue its services as a securities depositary with
respect to the Capital Securities at any time by giving reasonable prior written
notice to the Issuer and the Transfer Agent and Registrar (at which time DTC
will confirm with the Issuer or the Transfer Agent and Registrar the aggregate
number of Capital Securities deposited with it) and discharging its
responsibilities with respect thereto under applicable law. Under such
circumstances, the Issuer may determine to make alternative arrangements for
book-entry settlement for the Capital Securities, make available one or more
separate global certificates evidencing Capital Securities to any Participant
having Capital Securities credited to its DTC account, or issue definitive
Capital Securities to the beneficial holders thereof, and in any such case, DTC
agrees to cooperate fully with the Issuer and the Transfer Agent and Registrar
and to return the Global Certificate, duly endorsed for transfer as directed by
the Issuer or the Transfer Agent and Registrar, together with any other
documents of transfer reasonably requested by the Issuer or the Transfer Agent
and Registrar.
B-4
<PAGE>
12. In the event that the Issuer determines that beneficial owners
of Capital Securities shall be able to obtain definitive Capital Securities, the
Issuer or the Transfer Agent and Registrar shall notify DTC of the availability
of certificates. In such event, the Issuer or the Transfer Agent and Registrar
shall issue, transfer and exchange certificates in appropriate amounts, as
required by DTC and others, and DTC agrees to cooperate fully with the Issuer
and the Transfer Agent and Registrar and to return the Global Certificate, duly
endorsed for transfer as directed by the Issuer or the Transfer Agent and
Registrar, together with any other documents of transfer reasonably requested by
the Issuer or the Transfer Agent and Registrar.
13. This letter may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
B-5
<PAGE>
Nothing herein shall be deemed to require the Transfer Agent and Registrar
to advance funds on behalf of CSC Capital Trust I.
Very truly yours,
CSC Capital I
(As Issuer)
By:
-----------------------------
Administrator
THE BANK OF NEW YORK
(As Transfer Agent and Registrar)
By:
-----------------------------
Name:
Title:
RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By:
-----------------------------
Authorized Officer
B-6
<PAGE>
Exhibit C
[FORM OF COMMON SECURITIES CERTIFICATE]
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR AN
AFFILIATE OF THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND
SECTION 5.11 OF THE TRUST AGREEMENT AND ONLY IN CONNECTION WITH A
SIMULTANEOUS DELEGATION AND ASSIGNMENT OF THE EXPENSE AGREEMENT
REFERRED TO THEREIN
Certificate Number Number of Common Securities
C-
Certificate Evidencing Common Securities
of
CSC Capital I
___% Common Securities
(liquidation amount $25 per Common Security)
CSC Capital I, a statutory business trust formed under the laws of the
State of Delaware (the "Issuer Trust"), hereby certifies that [NAME OF HOLDER]
(the "Holder") is the registered owner of common securities of the
Issuer Trust representing undivided common beneficial interests in the assets of
the Issuer Trust and designated the ___% Common Securities (liquidation amount
$25 per Common Security) (the "Common Securities"). Except in accordance with
Section 5.11 of the Trust Agreement (as defined below) the Common Securities are
not transferable and any attempted transfer hereof other than in accordance
therewith shall be void. The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities are set
forth in, and this certificate and the Common Securities represented hereby are
issued and shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Issuer Trust, dated as of [ ],
1999, as the same may be amended from time to time (the "Trust Agreement"),
among CSC Holdings, Inc., as Depositor, The Bank of New York, as Property
Trustee, The Bank of New York (Delaware), as Delaware Trustee, and the Holders
of Trust Securities, including the designation of the terms of the Common
Securities as set forth therein. The Issuer Trust will furnish a copy of the
Trust Agreement to the Holder without charge upon written request to the Issuer
Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
This Common Securities Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
C-1
<PAGE>
Terms used but not defined herein have the meanings set forth in the Trust
Agreement.
IN WITNESS WHEREOF, one of the Administrators of the Issuer Trust has
executed this certificate this __ day of [ ], 1999.
CSC CAPITAL I
By:
-----------------------------
Name:
Administrator
C-2
<PAGE>
[FORM OF EXPENSE AGREEMENT]
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES, dated as of [ ], 1999, between
CSC Holdings, Inc., a New York corporation, as holder of the Common Securities
and issuer of Debentures (the "Corporation"), and CSC Capital I, a Delaware
business trust (the "Issuer Trust").
WHEREAS, the Issuer Trust intends to issue its Common Securities (the
"Common Securities") to and acquire Debentures from the Corporation and to issue
and sell ____% Capital Securities (the "Capital Securities") with such powers,
preferences and special rights and restrictions as are set forth in the Amended
and Restated Trust Agreement, dated as of [ ], 1999, among CSC Holdings, Inc.,
as Depositor, The Bank of New York, as Property Trustee, The Bank of New York
(Delaware), as Delaware Trustee, and the Holders of Trust Securities, as the
same may be amended from time to time (the "Trust Agreement");
WHEREAS, the Corporation will directly or indirectly own all of the Common
Securities of the Trust and will issue the Debentures;
WHEREAS, capitalized terms used but not defined herein have the meanings
set forth in the Trust Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
SECTION 1.1. Guarantee by the Corporation. The Corporation hereby agrees
to assume any and all Obligations (as hereinafter defined) of the Issuer Trust
and, in the event any such Obligation is not so assumed, subject to the terms
and conditions hereof, the Corporation hereby irrevocably and unconditionally
guarantees to each person or entity to whom the Issuer Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries") the full payment, when and as
due, of any and all Obligations (as hereinafter defined) to such Beneficiaries.
As used herein, "Obligations" means any costs, expenses or liabilities (but not
including liabilities relating to taxes) of the Issuer Trust, other than
obligations of the Issuer Trust to pay to holders of any Trust Securities the
amounts due such holders pursuant to the terms of the Trust Securities. This
Agreement is intended to be for the benefit of, and to be enforceable by, all
such Beneficiaries, whether or not such Beneficiaries have received notice
hereof.
SECTION 1.2. Subordination of Guarantee. The guarantee and other
liabilities and obligations of the Corporation under this Agreement shall
constitute unsecured obligations of the Corporation
D-1
<PAGE>
and shall rank subordinate and junior in right of payment to all Senior
Indebtedness (as defined in the Indenture) of the Corporation to the extent and
in the manner set forth in the Indenture with respect to the Debentures, and the
provisions of Article XIII of the Indenture will apply, mutatis mutandis, to the
obligations of the Corporation hereunder. The obligations of the Corporation
hereunder do not constitute Senior Indebtedness (as defined in the Indenture) of
the Corporation.
SECTION 1.3. Term of Agreement. This Agreement shall terminate and be of
no further force and effect upon the later of (a) the date on which full payment
has been made of all amounts payable to all holders of all the Capital
Securities (whether upon redemption, liquidation, exchange or otherwise) and (b)
the date on which the Debentures shall have been distributed to the Holders of
the Trust Securities as provided in Article IX of the Trust Agreement; provided,
however, that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any holder of Capital Securities
or any Beneficiary must restore payment of any sums paid under the Capital
Securities, under any Obligation, under the Guarantee Agreement dated the date
hereof by the Corporation and The Bank of New York, as guarantee trustee, or
under this Agreement for any reason whatsoever. This Agreement is continuing,
irrevocable, unconditional and absolute.
SECTION 1.4. Waiver of Notice. The Corporation hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Corporation hereby waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 1.5. No Impairment. The obligations, covenants, agreements and
duties of the Corporation under this Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Issuer Trust of all or
any portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Issuer Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer Trust or any of the assets of
the Issuer Trust (other than the dissolution of the Trust in accordance with the
terms thereof).
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Corporation with respect to the happening of any of the
foregoing.
D-2
<PAGE>
SECTION 1.6. Enforcement. A Beneficiary may enforce this Agreement
directly against the Corporation and the Corporation waives any right or remedy
to require that any action be brought against the Issuer Trust or any other
person or entity before proceeding against the Corporation.
SECTION 1.7. Subrogation. The Corporation shall be subrogated to all
rights (if any) of any Beneficiary against the Issuer Trust in respect of any
amounts paid to the Beneficiaries by the Corporation under this Agreement;
provided, however, that the Corporation shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Agreement, if,
at the time of any such payment, any amounts are due and unpaid under this
Agreement.
ARTICLE II
SECTION 2.1. Assignment. This Agreement may not be assigned by either
party hereto without the consent of the other, and any purported assignment
without such consent shall be void; provided, however, that, upon any transfer
of the Common Securities, this Agreement shall be assigned and delegated by the
Corporation to its successor with such transfer without any action by either
party hereto.
SECTION 2.2. Binding Effect. All guarantees and agreements contained in
this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Corporation and shall inure to the benefit of the
Beneficiaries.
SECTION 2.3. Amendment. So long as there remains any Beneficiary or any
Capital Securities are outstanding, this Agreement shall not be modified or
amended in any manner adverse to such Beneficiary or to the holders of the
Capital Securities without the consent of such Beneficiary or the holders of the
Capital Securities, as the case may be.
SECTION 2.4. Notices. Any notice, request or other communication required
or permitted to be given hereunder shall be given in writing by delivering the
same against receipt therefor by facsimile transmission (confirmed by mail),
telex or by registered or certified mail, addressed as follows (and if so given,
shall be deemed
D-3
<PAGE>
given when mailed or upon receipt of an answer-back, if sent by telex):
CSC Capital I
c/o The Bank of New York
[ ]
[ ]
[ ]
Facsimile No.: [ ]
Attention: Corporate Trust and Agency Services
With a copy to:
CSC Holdings, Inc.
1111 Stewart Avenue
Bethpage, New York 11714
Facsimile No.: ______________
Attention: Secretary
SECTION 2.5. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
D-4
<PAGE>
THIS AGREEMENT is executed as of the day and year first above written.
CSC HOLDINGS, INC.
By:
--------------------------------
Name:
Title:
CSC CAPITAL I
By:
--------------------------------
Name:
Title: Administrator
D-5
<PAGE>
Exhibit E
[FORM OF CAPITAL SECURITIES CERTIFICATE]
[IF THE CAPITAL SECURITIES CERTIFICATE IS TO BE EVIDENCED BY A GLOBAL
CAPITAL SECURITY, INSERT--This Capital Securities Certificate is a Global
Capital Security within the meaning of the Trust Agreement hereinafter referred
to and is registered in the name of a Depositary or a nominee of a Depositary.
This Capital Securities Certificate is exchangeable for Capital Securities
Certificates registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Trust Agreement and
may not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary, except in the limited circumstances described in the
Trust Agreement.
Unless this Capital Security Certificate is presented by an authorized
representative of The Depository Trust Company, a New York Corporation ("DTC"),
to CSC Capital I or its agent for registration of transfer, exchange or payment,
and any Capital Security Certificate issued is registered in the name of Cede &
Co. or such other name as is requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or to such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO A PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.]
E-1
<PAGE>
Certificate Number Number of Capital Securities
CAI-
CUSIP NO.
---------------
Certificate Evidencing Capital Securities
of
CSC Capital I
____% Capital Securities, Series I
(liquidation amount $25 per Capital Security)
CSC Capital I, a statutory business trust formed under the laws of the State of
Delaware (the "Issuer Trust"), hereby certifies that ____________ (the "Holder")
is the registered owner of___________________( )__ Capital Securities of the
Trust representing an undivided preferred beneficial interest in the assets of
the Trust and designated the CSC Capital __ ____% Capital Securities, Series I
(liquidation amount $25 per Capital Security) (the "Capital Securities"). The
Capital Securities are transferable on the books and records of the Issuer
Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as provided in Section
5.5 of the Trust Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Capital Securities are set forth in, and this certificate and the Capital
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Issuer Trust, dated as of [ ], 1999, as the same may be amended from time to
time (the "Trust Agreement"), among CSC Holdings, Inc., as Depositor, The Bank
of New York, as Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee, and the Holders of Trust Securities, including the designation of the
terms of the Capital Securities as set forth therein. The Holder is entitled to
the benefits of the Guarantee Agreement entered into by CSC Holdings, Inc., a
Delaware corporation, and The Bank of New York, as Guarantee Trustee, dated as
of [ ], 1999 (the "Guarantee Agreement"), to the extent provided therein. The
Trust will furnish a copy of the Issuer Trust Agreement and the Guarantee
Agreement to the Holder without charge upon written request to the Property
Trustee at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
E-2
<PAGE>
This Capital Securities Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
All capitalized terms used but not defined in this Capital Securities
Certificate are used with the meanings specified in the Trust Agreement,
including the Exhibits thereto.
IN WITNESS WHEREOF, one of the Administrators of the Issuer Trust has
executed this certificate this __ day of [ ], 1999.
CSC CAPITAL
By:
--------------------------------
Name:
Administrator
E-3
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital
Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Capital Security Certificate on the books of the Issuer
Trust. The agent may substitute another to act for him or her.
Date: ________________
Signature: ___________________________________________________________________
(Sign exactly as your name appears on the other side of this Capital
Security Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
E-4
<PAGE>
Exhibit 4.20
S&C Draft of 3/26/99
================================================================================
GUARANTEE AGREEMENT
by and between
CSC Holdings, Inc.,
as Guarantor
and
The Bank of New York,
as Guarantee Trustee
relating to
CSC Capital I
------------------
Dated as of [ ], 1999
------------------
================================================================================
<PAGE>
CROSS REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
- ------------------- -------------------
310(a)............................................................4.1(a)
310(b).......................................................4.1(c), 2.8
310(c)......................................................Inapplicable
311(a)............................................................2.2(b)
311(b)............................................................2.2(b)
311(c)......................................................Inapplicable
312(a)............................................................2.2(a)
312(b)............................................................2.2(b)
313..................................................................2.3
314(a)...............................................................2.4
314(b)......................................................Inapplicable
314(c)...............................................................2.5
314(d)......................................................Inapplicable
314(e).....................................................1.1, 2.5, 3.2
314(f)..........................................................2.1, 3.2
315(a)............................................................3.1(d)
315(b)...............................................................2.7
315(c)...............................................................3.1
315(d)............................................................3.1(d)
316(a).....................................................1.1, 2.6, 5.4
316(b)...............................................................5.3
316(c)...............................................................8.2
317(a)......................................................Inapplicable
317(b)......................................................Inapplicable
318(a)...............................................................2.1
318(b)...............................................................2.1
318(c)...............................................................2.1
- --------
* This Cross Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.....................................................1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application................................4
SECTION 2.2. List of Holders.................................................5
SECTION 2.3. Reports by the Guarantee Trustee................................5
SECTION 2.4. Periodic Reports to the Guarantee Trustee.......................5
SECTION 2.5. Evidence of Compliance with Conditions Precedent................6
SECTION 2.6. Events of Default; Waiver.......................................6
SECTION 2.7. Event of Default; Notice........................................6
SECTION 2.8. Conflicting Interests...........................................6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee......................7
SECTION 3.2. Certain Rights of Guarantee Trustee.............................8
SECTION 3.3. Compensation; Indemnity; Fees..................................10
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee; Eligibility.................................10
SECTION 4.2. Appointment, Removal and Resignation of the Guarantee Trustee..11
ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee......................................................12
SECTION 5.2. Waiver of Notice and Demand....................................12
SECTION 5.3. Obligations Not Affected.......................................12
-i-
<PAGE>
Page
SECTION 5.4. Rights of Holders..............................................13
SECTION 5.5. Guarantee of Payment...........................................13
SECTION 5.6. Subrogation....................................................13
SECTION 5.7. Independent Obligations........................................14
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.1. Subordination..................................................15
SECTION 6.2. Pari Passu Guarantees..........................................15
ARTICLE VII
TERMINATION
SECTION 7.1. Termination....................................................15
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Successors and Assigns.........................................16
SECTION 8.2. Amendments.....................................................16
SECTION 8.3. Notices........................................................16
SECTION 8.4. Benefit........................................................17
SECTION 8.5. Governing Law..................................................17
SECTION 8.6. Counterparts...................................................17
-ii-
<PAGE>
GUARANTEE AGREEMENT, dated as of [ ], 1999, between CSC HOLDINGS,
INC., a Delaware corporation (the "Guarantor"), having its principal office at
1111 Stewart Avenue, Bethpage, New York 11714, and THE BANK OF NEW YORK, a New
York banking corporation, as trustee (the "Guarantee Trustee"), for the benefit
of the Holders (as defined herein) from time to time of the Capital Securities
(as defined herein) of CSC Capital I, a Delaware statutory business trust (the
"Issuer Trust").
RECITALS OF THE CORPORATION
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as of
[ ], 1999 (the "Trust Agreement"), among CSC Holdings, Inc., as Depositor,
the Property Trustee and the Delaware Trustee named therein and the holders from
time to time of undivided beneficial interests in the assets of the Issuer
Trust, the Issuer Trust is issuing $500,000,000 aggregate Liquidation Amount (as
defined in the Trust Agreement) of its [ ]% Capital Securities, Series A
(liquidation amount $25 per capital security) (the "Capital Securities"),
representing preferred undivided beneficial interests in the assets of the
Issuer Trust and having the terms set forth in the Trust Agreement; and
WHEREAS, the Capital Securities will be issued by the Issuer Trust and the
proceeds thereof, together with the proceeds from the issuance of the Issuer
Trust's Common Securities (as defined herein), will be used to purchase the
Debentures (as defined in the Trust Agreement) of the Guarantor, which
Debentures will be deposited with The Bank of New York, as Property Trustee
under the Trust Agreement, as trust assets; and
WHEREAS, as an incentive for the Holders to purchase Capital Securities,
the Guarantor desires irrevocably and unconditionally to agree, as described
herein, to pay to the Holders of the Capital Securities the Guarantee Payments
(as defined herein) and to make certain other payments on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase of Capital Securities by
each Holder, which purchase the Guarantor hereby acknowledges shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the
benefit of the Holders from time to time.
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.
For all purposes of this Guarantee Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned to them
in this Article, and include the plural as well as the singular;
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(b) All other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) The words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted accounting
principles;
(e) Unless the context otherwise requires, any reference to an "Article"
or a "Section" refers to an Article or a Section, as the case may be, of this
Guarantee Agreement; and
(f) The words "hereby", "herein", "hereof" and "hereunder" and other words
of similar import refer to this Guarantee Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Board of Directors" means the board of directors of the Guarantor or the
Executive Committee of the board of directors of the Guarantor (or any other
committee of the board of directors of the Guarantor performing similar
functions) or a committee designated by the board of directors of the Guarantor
(or such committee), comprised of two or more members of the board of directors
of the Guarantor or officers of the Guarantor, or both.
"Capital Securities" has the meaning specified in the recitals to this
Guarantee Agreement.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer Trust.
"Event of Default" means (i) a default by the Guarantor in any of its
payment obligations under this Guarantee Agreement or (ii) a default by the
Guarantor in any other obligation hereunder that remains unremedied for 30 days.
"Guarantee Agreement" means this Guarantee Agreement, as modified, amended
or supplemented from time to time.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Capital Securities, to the extent not
paid or made by or on behalf of the Issuer Trust: any accumulated and unpaid
Distributions (as defined in the Trust Agreement) required to be paid on the
Capital Securities, to the extent the Issuer Trust shall have funds on hand
available therefor at such time; the Redemption Price (as defined in the Trust
Agreement) with respect to any Capital Securities
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called for redemption by the Issuer Trust, to the extent the Issuer Trust shall
have funds on hand available therefor at such time; and (iii) upon a voluntary
or involuntary termination, winding-up or liquidation of the Issuer Trust,
unless Debentures are distributed to the Holders, the lesser of (a) the
Liquidation Distribution (as defined in the Trust Agreement) with respect to the
Capital Securities, to the extent that the Issuer Trust shall have funds on hand
available therefor at such time and (b) the amount of assets of the Issuer Trust
remaining available for distribution to Holders on liquidation of the Issuer
after satisfaction of liabilities to creditors of the Trust as required by
applicable law.
"Guarantee Trustee" means The Bank of New York, solely in its capacity as
Guarantee Trustee and not in its individual capacity, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement, and thereafter means each such
Successor Guarantee Trustee.
"Guarantor" has the meaning specified in the first paragraph of this
Guarantee Agreement.
"Holder" means any Holder (as defined in the Trust Agreement) of any
Capital Securities; provided, however, that in determining whether the holders
of the requisite percentage of Capital Securities have given any request,
notice, consent or waiver hereunder, "Holder" shall not include the Guarantor,
the Guarantee Trustee, or any Affiliate of the Guarantor or the Guarantee
Trustee.
"Indenture" means the Junior Subordinated Indenture, dated as of July 16,
1998, between CSC Holdings, Inc. and The Bank of New York, as trustee, as the
same may be modified, amended or supplemented from time to time.
"Issuer Trust" has the meaning specified in the first paragraph of this
Guarantee Agreement.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Capital Securities" means, except
as provided by the Trust Indenture Act, Capital Securities representing more
than 50% of the aggregate Liquidation Amount (as defined in the Trust Agreement)
of all Capital Securities then Outstanding (as defined in the Trust Agreement).
"Officers' Certificate" means, with respect to any Person, a certificate
signed by the Chairman or a Vice Chairman of the Board of Directors of such
Person or the Chief Executive Officer, President or a Vice President of such
Person, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Guarantor, and delivered to the Guarantee Trustee.
Any Officers' Certificate delivered with respect to compliance with a condition
or covenant provided for in this Guarantee Agreement shall include:
(a) a statement by each officer signing the Officers' Certificate that
such officer has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers' Certificate;
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(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, company,
limited liability company, trust, business trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer or
Assistant Trust Officer or any officer assigned to the Corporate Trust Office,
including any vice president, assistant vice president, assistant treasurer or
assistant secretary of the Guarantee Trustee and also means, with respect to a
particular matter, any other officer to whom such matter is referred because of
that officer's knowledge of and familiarity with the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Agreement" means the Amended and Restated Trust Agreement of the
Issuer Trust referred to in the recitals to this Guarantee Agreement, as
modified, amended or supplemented from time to time.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this Guarantee Agreement was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Vice President", when used with respect to the Corporation, means any
duly appointed vice president, whether or not designated by a number or a word
or words added before or after the title "vice president."
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
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(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act through operation of Section 318(c)
thereof, such imposed duties shall control. If any provision of this Guarantee
Agreement modifies or excludes any provision of the Trust Indenture Act which
may be so modified or excluded, the latter provision shall be deemed to apply to
this Guarantee Agreement as so modified or to be excluded, as the case may be.
SECTION 2.2. List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the Guarantee
Trustee (a) semiannually, on or before June 30 and December 31 of each year, a
list, in such form as the Guarantee Trustee may reasonably require, of the names
and addresses of the Holders (a "List of Holders") as of a date not more than 15
days prior to the delivery thereof, and (b) at such other times as the Guarantee
Trustee may request in writing, within 30 days after the receipt by the
Guarantor of any such request, a List of Holders as of a date not more than 15
days prior to the time such list is furnished, in each case to the extent such
information is in the possession or control of the Guarantor and has not
otherwise been received by the Guarantee Trustee in its capacity as such. The
Guarantee Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with the requirements of Section
311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by the Guarantee Trustee.
Not later than [May 15] of each year, commencing [May 15, 2000], the
Guarantee Trustee shall provide to the Holders such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the Securities and
Exchange Commission and the Holders such documents, reports and information, if
any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
If the Guarantee Trustee is also acting as the Property Trustee under the Trust
Agreement or the Indenture Trustee under the Indenture, then such reports will
not be required hereunder.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Corporation's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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SECTION 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer of the Guarantor pursuant to Section 314(c)(1) may be given
in the form of an Officers' Certificate.
SECTION 2.6. Events of Default; Waiver.
The Holders of at least a Majority in Liquidation Amount of the Capital
Securities may, by vote, on behalf of the Holders of all the Capital Securities,
waive any past default or Event of Default and its consequences. Upon such
waiver, any such default or Event of Default shall cease to exist, and any
default or Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Guarantee Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of an
Event of Default actually known to a Responsible Officer of the Guarantee
Trustee, transmit by mail, first class postage prepaid, to the Holders, notice
of any such Event of Default, unless such Event of Default has been cured before
the giving of such notice, provided that, except in the case of a default in the
payment of a Guarantee Payment, the Guarantee Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Guarantee Trustee in good faith determines that the withholding of such notice
is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer charged with the administration of this
Guarantee Agreement shall have obtained actual knowledge, of such Event of
Default.
SECTION 2.8. Conflicting Interests.
The Trust Agreement and the Indenture shall be deemed to be specifically
described in this Guarantee Agreement for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
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ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for
the benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Guarantee Trustee hereunder. The right, title and interest of the Guarantee
Trustee, as such, hereunder shall automatically vest in any Successor Guarantee
Trustee, upon acceptance by such Successor Guarantee Trustee of its appointment
hereunder, and such vesting and cessation of title shall be effective whether or
not conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Guarantee Agreement, and no implied covenants shall be read into this Guarantee
Agreement against the Guarantee Trustee. If an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6), the Guarantee
Trustee shall exercise such of the rights and powers vested in it by this
Guarantee Agreement, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use in the conduct of his or her
own affairs.
(d) No provision of this Guarantee Agreement shall be construed to relieve
the Guarantee Trustee from liability for its own negligent action, its own
negligent failure to act or its own wilful misconduct, except that:
(i) Prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall
be determined solely by the express provisions of this Guarantee
Agreement (including pursuant to Section 2.1), and the Guarantee
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Guarantee Agreement; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Guarantee Trustee and conforming to the requirements of this
Guarantee Agreement; but in the case of any such certificates or
opinions that by any provision hereof or of the Trust Indenture Act
are specifically required to be furnished to the Guarantee Trustee,
the Guarantee Trustee shall be under a duty to examine the
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same to determine whether or not they conform to the requirements of
this Guarantee Agreement but need not confirm or investigate the
accuracy of any mathematical calculations or other facts stated
therein.
(ii) The Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment was
made.
(iii) The Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the written direction of the Holders of not less than a Majority in
Liquidation Amount of the Capital Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement.
(iv) Subject to Section 3.1(b), no provision of this Guarantee
Agreement shall require the Guarantee Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or powers, if
the Guarantee Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably assured to it under
the terms of this Guarantee Agreement or indemnity reasonably satisfactory
to it against such risk or liability is not reasonably assured to it.
SECTION 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document (whether in its original or
facsimile form) reasonably believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officers'
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee Agreement,
the Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting to take any action
hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers' Certificate which, upon
receipt of such request from the Guarantee Trustee, shall be promptly
delivered by the Guarantor.
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(iv) The Guarantee Trustee may consult with legal counsel of its own
selection, and the advice or opinion of such legal counsel with respect to
legal matters shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or opinion.
Such legal counsel may be legal counsel to the Guarantor or any of its
Affiliates and may be one of its employees. The Guarantee Trustee shall
have the right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any court of competent
jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Guarantee Agreement at
the request or direction of any Holder unless such Holder shall have
provided to the Guarantee Trustee such security and indemnity satisfactory
to it against the costs, expenses (including attorneys' fees and expenses)
and liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be
requested by the Guarantee Trustee; provided that nothing contained in
this Section 3.2(a)(v) shall be taken to relieve the Guarantee Trustee,
upon the occurrence of an Event of Default, of its obligation to exercise
the rights and powers vested in it by this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit at the expense of the Guarantor and shall
incur no liability or additional liability of any kind by reason of such
inquiry or investigation.
(vii) The Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents, attorneys, custodians or nominees and the Guarantee Trustee
shall not be responsible for any misconduct or negligence on the part of
any such agent, attorney, custodian or nominee appointed by it with due
care hereunder.
(viii) Whenever in the administration of this Guarantee Agreement
the Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Guarantee Trustee (A) may request instructions from the
Holders, (B) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received, and (C) shall be
fully protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
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SECTION 3.3. Compensation; Indemnity; Fees.
The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time such
reasonable compensation for all services rendered by it hereunder as may
be agreed upon from time to time in writing by the Guarantor and the
Guarantee Trustee (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to reimburse the
Guarantee Trustee upon request for all reasonable expenses, disbursements
and advances incurred or made by the Guarantee Trustee in accordance with
any provision of this Guarantee Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to fully indemnify the Guarantee Trustee and any predecessor
Guarantee Trustee and their officers, directors and employees for, and to
hold it harmless against, any and all loss, liability, claim, damage or
expense incurred without negligence, bad faith or wilful misconduct on the
part of the Guarantee Trustee, arising out of or in connection with the
acceptance or administration of this Guarantee Agreement, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
The Guarantee Trustee will not claim or exact any lien or charge on any
Guarantee Payments as a result of any amount due to it under this Guarantee
Agreement. The Guarantor's indemnification obligations as set forth in this
Section 3.3 shall survive the termination of this Guarantee Agreement or the
resignation or removal of the Guarantee Trustee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least
$50,000,000, and shall be a corporation meeting the requirements of
Section 310(a) of the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then, for the
purposes of this Section 4.1 and to the extent permitted by the Trust
Indenture Act, the combined capital and surplus of such corporation shall
be deemed
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to be its combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so
act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2.
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 4.2. Appointment, Removal and Resignation of the Guarantee
Trustee.
(a) Subject to Section 4.2(c), the Guarantee Trustee may be appointed or
removed at any time by the action of the Holders of a Majority in Liquidation
Amount of the Capital Securities delivered to the Guarantee Trustee and the
Guarantor (i) for cause or (ii) if a Debenture Event of Default (as defined in
the Trust Agreement) shall have occurred and be continuing at any time.
(b) Subject to Section 4.2(c), the Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) by giving written
notice thereof to the Holders and the Guarantor and by appointing a successor
Guarantee Trustee. The Guarantee Trustee shall appoint a successor by requesting
from at least three Persons meeting the requirements of Section 4.1(a) their
expenses and charges to serve as the Guarantee Trustee, and selecting the Person
who agrees to the lowest expenses and charges.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed and shall have accepted
such appointment. No removal or resignation of a Guarantee Trustee shall be
effective until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor and, in the case of any
resignation, the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Holders and the Guarantor of a notice of resignation, the
resigning Guarantee Trustee may petition, at the expense of the Guarantor, any
court of competent jurisdiction for appointment of a Successor Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Guarantee Trustee.
(e) If a resigning Guarantee Trustee shall fail to appoint a successor, or
if a Guarantee Trustee shall be removed or become incapable of acting as
Guarantee Trustee and a replacement shall not be appointed prior to such
resignation or removal, or if a vacancy shall occur in the office of Guarantee
Trustee for any cause, the Holders of the Capital Securities, by the action of
the Holders of record of not less than 25% in aggregate Liquidation Amount (as
defined in the Trust Agreement) of the Capital Securities then Outstanding (as
defined in the Trust Agreement) delivered to such Guarantee Trustee, may appoint
a Successor Guarantee Trustee or Trustees. If no successor Guarantee Trustee
shall have been so appointed by the Holders of the Capital Securities and
accepted appointment, any Holder, on
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behalf of such Holder and all others similarly situated, or any other Guarantee
Trustee, may petition any court of competent jurisdiction for the appointment of
a successor Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by or on behalf of the Issuer Trust), as and when due, regardless of any
defense, right of set-off or counterclaim that the Issuer Trust may have or
assert, except the defense of payment. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Guarantor to the Holders or by causing the Issuer Trust to pay such amounts
to the Holders.
SECTION 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, the Issuer Trust or any other Person before proceeding
against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice
of redemption and all other notices and demands.
SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under
this Guarantee Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer Trust of any express or implied
agreement, covenant, term or condition relating to the Capital Securities
to be performed or observed by the Issuer Trust;
(b) the extension of time for the payment by the Issuer Trust of all
or any portion of the Distributions (other than an extension of time for
payment of Distributions that results from the extension of any interest
payment period on the Debentures as provided in the Indenture), Redemption
Price, Liquidation Distribution or any other sums payable under the terms
of the Capital Securities or the extension of time for the performance of
any other obligation under, arising out of, or in connection with, the
Capital Securities;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Capital
Securities, or any action on the part of the Issuer Trust granting
indulgence or extension of any kind;
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<PAGE>
(d) the voluntary or involuntary liquidation, dissolution,
receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of
debt of, or other similar proceedings affecting, the Issuer Trust or any
of the assets of the Issuer Trust;
(e) any invalidity of, or defect or deficiency in, the Capital
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor (other
than payment of the underlying obligation), it being the intent of this
Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain the
consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Amount of the Capital Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of this Guarantee Agreement or exercising any trust
or power conferred upon the Guarantee Trustee under this Guarantee Agreement;
and (iv) any Holder may institute a legal proceeding directly against the
Guarantor to enforce its rights under this Guarantee Agreement without first
instituting a legal proceeding against the Guarantee Trustee, the Issuer Trust
or any other Person.
SECTION 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment
of the Guarantee Payments in full (without duplication of amounts theretofore
paid by the Issuer Trust) or upon the distribution of Debentures to Holders as
provided in the Trust Agreement.
SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all rights (if any) of the Holders
against the Issuer Trust in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any rights which it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Guarantee Agreement. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the
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<PAGE>
Guarantor agrees to hold such amount in trust for the Holders and to pay over
such amount to the Holders.
SECTION 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer Trust with respect to the Capital Securities
and that the Guarantor shall be liable as principal and as debtor hereunder to
make Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
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<PAGE>
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.1. Subordination.
The obligations of the Guarantor under this Guarantee Agreement will
constitute unsecured obligations of the Guarantor and will rank subordinate and
junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Guarantor to the extent and in the manner set forth in the
Indenture with respect to the Debentures and the provisions of Article XIII of
the Indenture will apply, mutatis mutandis, to the obligations of the Guarantor
hereunder. The obligations of the Guarantor hereunder do not constitute Senior
Indebtedness (as defined in the Indenture) of the Guarantor.
SECTION 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement shall rank
pari passu with (i) the obligations of the Guarantor under any similar guarantee
agreements issued by the Guarantor on behalf of the holders of preferred or
capital securities issued by the Issuer Trust (as defined in the Indenture),
(ii) the Indenture and the Securities (as defined therein) issued thereunder,
(iii) the Expense Agreement (as defined in the Trust Agreement) and (iv) any
other security, guarantee or other agreement or obligation that is expressly
stated to rank pari passu with the obligations of the Guarantor under this
Guarantee Agreement or with any obligation that ranks pari passu with the
obligations of the Guarantor under this Guarantee Agreement.
ARTICLE VII
TERMINATION
SECTION 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect upon full payment of the Redemption Price (as defined in the Trust
Agreement) of all Capital Securities, the distribution of Debentures to the
Holders in exchange for all of the Capital Securities or full payment of the
amounts payable in accordance with Article IX of the Trust Agreement upon
liquidation of the Issuer Trust. Notwithstanding the foregoing, this Guarantee
Agreement will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder is required to repay any sums paid with respect to
Capital Securities or this Guarantee Agreement.
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<PAGE>
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement shall
bind the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Capital
Securities then outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under Article VIII of the
Indenture and pursuant to which the successor or assignee agrees in writing to
perform the Guarantor's obligations hereunder, the Guarantor shall not assign
its obligations hereunder, and any purported assignment other than in accordance
with this provision shall be void.
SECTION 8.2. Amendments.
Except with respect to any changes that do not adversely affect the rights
of the Holders in any material respect (in which case no consent of the Holders
will be required), this Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than a Majority in Liquidation Amount of the
Capital Securities. The provisions of Article VI of the Trust Agreement
concerning meetings of the Holders shall apply to the giving of such approval.
SECTION 8.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address or telecopy number set forth
below or such other address or telecopy number as the Guarantor may give notice
to the Guarantee Trustee and the Holders:
CSC Holdings, Inc.
1111 Stewart Avenue
Bethpage, New York 11714
Attention: Secretary
Telecopy: [ ]
(b) if given to the Guarantee Trustee, at the address or telecopy number
set forth below or such other address or telecopy number as the Guarantee
Trustee may give notice to the Guarantor and Holders:
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Attention: Corporate Trust Administration
Telecopy: (212) 815-5915
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<PAGE>
with a copy to:
CSC Capital I
c/o CSC Holdings, Inc.
1111 Stewart Avenue
Bethpage, New York 11714
Attention: Secretary
Telecopy: [ ]
(c) if given to any Holder, at the address set forth on the books and
records of the Issuer Trust.
All notices hereunder shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and is
not separately transferable from the Capital Securities.
SECTION 8.5. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.6. Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Guarantee
Agreement as of the day and year first above written.
CSC HOLDINGS, INC.
By:
--------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Guarantee Trustee
By:
--------------------------------
Name:
Title:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the __ day of [ ], 1999, before me personally came _____________,
to me known, who, being by me duly sworn, did depose and say that he is
________________ of CSC Holdings, Inc., one of the corporations described in and
which executed the foregoing instrument; that he/she signed his/her name thereto
by authority of the Board of Directors of said corporation.
- ---------------------------
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<PAGE>
Exhibit 4.21
S&C Draft of March 26, 1999
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES, dated as of [ ], 1999,
between CSC Holdings, Inc., a Delaware corporation, as holder of the Common
Securities and issuer of Debentures (the "Corporation"), and CSC Capital I, a
Delaware business trust (the "Issuer Trust").
WHEREAS, the Issuer Trust intends to issue its Common Securities (the
"Common Securities") to and acquire Debentures from the Corporation and to issue
and sell [ ]% Capital Securities (the "Capital Securities") with such powers,
preferences and special rights and restrictions as are set forth in the Amended
and Restated Trust Agreement, dated as of [ ], 1999, among CSC Holdings,
Inc., as Depositor, The Bank of New York, as Property Trustee, The Bank of New
York (Delaware), as Delaware Trustee, and the Holders of Trust Securities, as
the same may be amended from time to time (the "Trust Agreement");
WHEREAS, the Corporation will directly or indirectly own all of the Common
Securities of the Trust and will issue the Debentures;
WHEREAS, capitalized terms used but not defined herein have the meanings
set forth in the Trust Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
SECTION 1.1.Guarantee by the Corporation. The Corporation hereby agrees to
assume any and all Obligations (as hereinafter defined) of the Issuer Trust and
in the event any such Obligation is not so assumed, subject to the terms and
conditions hereof, the Corporation hereby irrevocably and unconditionally
guarantees to each person or entity to whom the Issuer Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries") the full payment, when and as
due, of any and all Obligations (as hereinafter defined) to such Beneficiaries.
As used herein, "Obligations" means any costs, expenses or liabilities (but not
including liabilities related to taxes) of the Issuer Trust, other than
obligations of the Issuer Trust to pay to holders of any Trust Securities the
amounts due such holders pursuant to the terms of the Trust Securities. This
Agreement is intended to be for the benefit of, and to be enforceable by, all
such Beneficiaries, whether or not such Beneficiaries have received notice
hereof.
<PAGE>
SECTION 1.2. Subordination of Guarantee. The guarantee and other
liabilities and obligations of the Corporation under this Agreement shall
constitute unsecured obligations of the Corporation and shall rank subordinate
and junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Corporation to the extent and in the manner set forth in the
Indenture with respect to the Debentures, and the provisions of Article XIII of
the Indenture will apply, mutatis mutandis, to the obligations of the
Corporation hereunder. The obligations of the Corporation hereunder do not
constitute Senior Indebtedness (as defined in the Indenture) of the Corporation.
SECTION 1.3. Term of Agreement. This Agreement shall terminate and be of
no further force and effect upon the later of (a) the date on which full payment
has been made of all amounts payable to all holders of all the Capital
Securities (whether upon redemption, liquidation, exchange or otherwise) and (b)
the date on which the Debentures shall have been distributed to the Holders of
the Trust Securities as provided in Article IX of the Trust Agreement; provided,
however, that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any holder of Capital Securities
or any Beneficiary must restore payment of any sums paid under the Capital
Securities, under any Obligation, under the Guarantee Agreement dated the date
hereof by the Corporation and The Bank of New York, as guarantee trustee, or
under this Agreement for any reason whatsoever. This Agreement is continuing,
irrevocable, unconditional and absolute.
SECTION 1.4. Waiver of Notice. The Corporation hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Corporation hereby waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 1.5. No Impairment. The obligations, covenants, agreements and
duties of the Corporation under this Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Issuer Trust of all or
any portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Issuer Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors,
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<PAGE>
reorganization, arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Issuer Trust or any of the assets of the
Issuer Trust (other than the dissolution of the Trust in accordance with the
terms thereof).
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Corporation with respect to the happening of any of the
foregoing.
SECTION 1.6. Enforcement. A Beneficiary may enforce this Agreement
directly against the Corporation and the Corporation waives any right or remedy
to require that any action be brought against the Issuer Trust or any other
person or entity before proceeding against the Corporation.
SECTION 1.7. Subrogation. The Corporation shall be subrogated to all
rights (if any) of any Beneficiary against the Issuer Trust in respect of any
amounts paid to the Beneficiaries by the Corporation under this Agreement;
provided, however, that the Corporation shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Agreement, if,
at the time of any such payment, any amounts are due and unpaid under this
Agreement.
ARTICLE II
SECTION 2.1. Assignment. This Agreement may not be assigned by either
party hereto without the consent of the other, and any purported assignment
without such consent shall be void; provided, however, that, upon any transfer
of the Common Securities, this Agreement shall be assigned and delegated by the
Corporation to its successor with such transfer without any action by either
party hereto.
SECTION 2.2. Binding Effect. All guarantees and agreements contained in
this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Corporation and shall inure to the benefit of the
Beneficiaries.
SECTION 2.3. Amendment. So long as there remains any Beneficiary or any
Capital Securities are outstanding, this Agreement shall not be modified or
amended in any manner adverse to such Beneficiary or to the holders of the
Capital Securities without the consent of such Beneficiary or the holders of the
Capital Securities, as the case may be.
SECTION 2.4. Notices. Any notice, request or other communication required
or permitted to be given hereunder shall be given in writing by delivering the
same against receipt therefor by facsimile transmission (confirmed by mail),
telex or by registered or
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<PAGE>
certified mail, addressed as follows (and if so given, shall be deemed given
when mailed or upon receipt of an answer-back, if sent by telex):
If given to the Corporation:
CSC Holdings, Inc.
1111 Stewart Avenue
Bethpage, New York 11714
Facsimile No.: (516) 803-[ ]
Attention: Secretary
If given to the Issuer Trust:
CSC Capital I
c/o The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Facsimile No.: (212) 815-5915
Attention: Corporate Trust Administration
With a copy to:
CSC Holdings, Inc.
1111 Stewart Avenue
Bethpage, New York 11714
Facsimile No.: (516) 803-[ ]
Attention: Secretary
SECTION 2.5. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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<PAGE>
THIS AGREEMENT is executed as of the day and year first above written.
CSC HOLDINGS, INC.
By:
-------------------------------
Name:
Title:
CSC CAPITAL I
By:
-------------------------------
Name:
Title: Administrator
<PAGE>
[LETTERHEAD OF SULLIVAN & CROMWELL]
EXHIBIT 5.1
April 1, 1999
Cablevision Systems Corporation,
1111 Stewart Avenue,
Bethpage, New York 11714.
Dear Sirs:
In connection with the registration under the Securities Act of 1933 (the
"Act") of $1,500,000,000 aggregate public offering price of (i) shares of
preferred stock, $.01 par value ("Preferred Stock"), which may be issued in the
form of Depositary Shares evidenced by Depositary Receipts, and (ii) junior
subordinated debt securities ("Debt Securities" and, collectively with the
Preferred Stock, the "Securities") of Cablevision Systems Corporation, a
Delaware corporation (the "Company"), we, as your counsel, have examined such
corporate records, certificates and other documents, and such questions of law,
as we have considered necessary or appropriate for the purposes of this opinion.
Upon the basis of such examination, we advise you that, in our opinion:
(1) With respect to the Debt Securities, when the registration statement
relating to the securities (the "Registration Statement") has become
effective under the Act, the terms of the Debt Securities and of their
issuance and sale have been duly established in conformity with the
Indenture relating to the Debt Securities, as applicable, so as not to
violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and so as to comply with
any requirement or restriction imposed by any court or governmental body
having jurisdiction over the Company, and the Debt Securities have been duly
executed and authenticated in accordance with the Indenture and issued and
sold as contemplated in the Registration Statement, the Debt Securities will
constitute valid and legally binding obligations of the Company, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(2) With respect to the Preferred Stock, when the Registration Statement
has become effective under the Act, the terms of the Preferred Stock and of
their issuance and sale have been duly established in conformity with the
Company's certificate of incorporation so as not to violate any applicable
law or result in a default under or breach of any agreement or instrument
binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction
over the Company, an appropriate certificate of designations with respect to
the Preferred Stock has been duly filed with the Secretary of State of the
State of Delaware, and the Preferred Stock has been duly issued and sold as
contemplated by the Registration Statement, the Preferred Stock will be
validly issued, fully paid and nonassessable.
(3) With respect to the Depositary Shares, when the Registration
Statement has become effective under the Act, the Deposit Agreement relating
to the Depositary Shares has been duly authorized, executed and delivered,
the terms of the Depositary Shares and of their issuance and sale have been
duly established in conformity with the Deposit Agreement so as not to
violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and so as to comply with
any requirement or restriction imposed by any court or governmental body
having jurisdiction over the Company, the Preferred Stock that is
represented by Depositary Shares is duly authorized, validly issued and
delivered to the Depositary, and the Depositary Receipts evidencing the
Depositary Shares are duly issued against deposit of the Preferred Stock in
accordance with the Deposit Agreement and issued and sold as contemplated by
the Registration Statement, the Depositary Receipts evidencing the
Depositary Shares will be validly issued and will entitle the
<PAGE>
holders thereof to the rights specified in the Depositary Shares and the
Deposit Agreement, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
In rendering our opinion set forth in paragraph (1) above, we are expressing
no opinion as to Federal or state laws relating to fraudulent transfers.
We note that, as of the date of this opinion, a judgment for money in an
action based on a Security denominated in a foreign currency or currency unit in
a Federal or state court in the United States ordinarily would be enforced in
the United States only in United States dollars. The date used to determine the
rate of conversion of the foreign currency or currency unit in which a
particular Security is denominated into United States dollars will depend upon
various factors, including which court renders the judgment. In the case of a
Debt Security denominated in a foreign currency, a state court in the State of
New York rendering a judgment on such Debt Security would be required under
Section 27 of the New York Judiciary Law to render such judgment in the foreign
currency in which the Debt Security is denominated, and such judgment would be
converted into United States dollars at the exchange rate prevailing on the date
of entry of the judgment.
The foregoing opinion is limited to the Federal laws of the United States,
the laws of the State of New York and the General Corporation Law of the State
of Delaware, and we are expressing no opinion as to the effect of the laws of
any other jurisdiction.
We have relied as to certain matters on information obtained from public
officials, officers of the Company and other sources believed by us to be
responsible and we have assumed that the Indenture has been duly authorized,
executed and delivered by the Trustee thereunder, an assumption which we have
not independently verified.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to us under the heading "Validity
of the Securities" in the Prospectus. In giving such consent, we do not thereby
admit that we are in the category of persons whose consent is required under
Section 7 of the Act.
Very truly yours,
SULLIVAN & CROMWELL
2
<PAGE>
Exhibit 5.2
[Letterhead of Morris, Nichols, Arsht & Tunnell]
April 1, 1999
The CSC Capital Trusts
(as defined below)
c/o CSC Holdings, Inc.
1111 Stewart Avenue
Bethpage, New York 11714
Re: The CSC Capital Trusts
----------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel to CSC Capital I, a
Delaware statutory business trust ("CSC Capital I"), CSC Capital II, a
Delaware statutory business trust ("CSC Capital II"), and CSC Capital III, a
Delaware statutory business trust ("CSC Capital III" and, collectively with
CSC Capital I and CSC Capital II, the "CSC Capital Trusts"), in connection
with certain matters of Delaware law relating to the formation of the CSC
Capital Trusts and the proposed issuance of Capital Securities thereof to
beneficial owners pursuant to and as described in the Registration Statement
(and the prospectus forming a part thereof) on Form S-3 filed with the
Securities and Exchange Commission by CSC Holdings, Inc., a Delaware
corporation (the "Company"), on February 5, 1999, as amended by Pre-Effective
Amendment No. 1 thereto (as amended, the "Registration Statement").
Capitalized terms used herein and not otherwise herein defined are used as
defined in the form of Amended and Restated Trust Agreement of the CSC
Capital Trusts attached as an exhibit to the Registration Statement (the
"Form Governing Instrument").
In rendering this opinion, we have examined copies of the following
documents in the forms provided to us: the Certificate of Trust of CSC
Capital I as filed in the Office of the Secretary of State of the State of
Delaware (the "State Office") on February 1, 1999 (the "CSC Capital I
Certificate"); the Trust Agreement of CSC Capital I dated as of February 1,
1999 (the "CSC Capital I Original Governing Instrument"); the Certificate of
Trust of CSC Capital II as filed in the State Office on February 1, 1999 (the
"CSC Capital II Certificate"); the Trust Agreement of CSC Capital II dated as
of February 1, 1999 (the "CSC Capital II Original Governing Instrument"); the
Certificate of Trust of CSC Capital III as filed in the State Office on
February 1, 1999 (collectively with the CSC Capital I Certificate and the CSC
Capital II
<PAGE>
The CSC Capital Trusts
April 1, 1999
Page 2
Certificate, the "Certificates"); the Trust Agreement of CSC Capital III
dated as of February 1, 1999 (collectively with the CSC Capital I Original
Governing Instrument and the CSC Capital II Original Governing Instrument,
the "Original Governing Instruments"); the Form Governing Instrument; the
form of Junior Subordinated Indenture to be entered into between the Company
and The Bank of New York, as trustee (the "Indenture"); the form of Guarantee
Agreement to be entered into by and between the Company and The Bank of New
York, as trustee, with respect to each CSC Capital Trust (each, a
"Guarantee"); the Registration Statement; and a certification of good
standing of each CSC Capital Trust obtained as of a recent date from the
State Office. In such examinations, we have assumed the genuineness of all
signatures, the conformity to original documents of all documents submitted
to us as drafts or copies or forms of documents to be executed and the legal
capacity of natural persons to complete the execution of documents. We have
further assumed for purposes of this opinion: (i) the due formation or
organization, valid existence and good standing of each entity that is a
party to any of the documents reviewed by us under the laws of the
jurisdiction of its respective formation or organization; (ii) the due
authorization, execution and delivery by, or on behalf of, each of the
parties thereto of the above-referenced documents with respect to each CSC
Capital Trust; (iii) that the Company, The Bank of New York, and The Bank of
New York (Delaware) will duly authorize, execute and deliver an amended and
restated trust agreement in the form of the Form Governing Instrument (each,
a "Governing Instrument") and all other documents contemplated thereby or by
the Registration Statement to be executed in connection with the formation of
each CSC Capital Trust and the issuance by each CSC Capital Trust of Capital
Securities, in each case prior to the first issuance of Capital Securities of
such CSC Capital Trust; (iv) that the Capital Securities of each CSC Capital
Trust will be offered and sold pursuant to the prospectus forming a part of
the Registration Statement and a prospectus supplement thereto (collectively,
the "Prospectus") that will be consistent with, and accurately describe, the
terms of the applicable Governing Instrument and the applicable Guarantee
relating to each such CSC Capital Trust and all other relevant documents; (v)
that no event has occurred subsequent to the filing of any Certificate, or
will occur prior to the issuance of all Capital Securities by each CSC
Capital Trust, that would cause a dissolution or liquidation of any CSC
Capital Trust under the applicable Original Governing Instrument or the
applicable Governing Instrument; (vi) that the activities of each CSC Capital
Trust have been and will be conducted in accordance with its Original
Governing Instrument or Governing Instrument, as applicable, and the Delaware
Business Trust Act, 12 DEL. C. SECTIONS 3801 ET SEQ. (the "Delaware Act");
(vii) that prior to the first issuance of Capital Securities by each CSC
Capital Trust, payment of the required consideration therefor will have been
made in accordance with the terms and conditions of the applicable Governing
Instrument and as described in the Prospectus, and that the Capital
Securities of each CSC Capital Trust are otherwise issued and sold in
accordance with the terms, conditions, requirements and procedures set forth
in the Governing Instrument of such CSC Capital Trust and as described in the
Prospectus; and (viii) that the documents examined by us, or contemplated
hereby, express the entire understanding of the parties thereto with respect
to the subject matter thereof and have not been, and, prior to the issuance
of all Capital Securities by each CSC Capital Trust, will not be, amended,
supplemented or otherwise modified, except as herein referenced. No opinion
is expressed with respect to the requirements of, or compliance with, federal
or state securities or blue sky laws. We express no opinion as to, and assume
no
<PAGE>
The CSC Capital Trusts
April 1, 1999
Page 3
responsibility for, the Registration Statement or any other offering
materials relating to the Capital Securities offered by any CSC Capital
Trust. As to any fact material to our opinion, other than those assumed, we
have relied without independent investigation on the above-referenced
documents and on the accuracy, as of the date hereof, of the matters therein
contained.
Based on and subject to the foregoing, and limited in all respects
to matters of Delaware law, it is our opinion that:
1. Each of the CSC Capital Trusts is a duly formed and validly
existing business trust in good standing under the laws of the State of
Delaware.
2. The Capital Securities of each CSC Capital Trust, upon
issuance, will constitute validly issued and, subject to the qualifications
set forth in paragraph 3 below, fully paid and nonassessable beneficial
interests in the assets of such CSC Capital Trust.
3. Under the Delaware Act and the terms of the applicable
Governing Instrument, the Holders of Capital Securities of each CSC Capital
Trust, in such capacity, will be entitled to the same limitation of personal
liability as that extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware;
provided, however, we express no opinion with respect to the liability of any
Holder of Capital Securities who is, was or may become a named Trustee of the
Trust. Notwithstanding the foregoing, we note that, pursuant to the
applicable Governing Instrument, Holders of Capital Securities of each CSC
Capital Trust may be obligated to make payments or provide indemnity or
security under the circumstances set forth therein.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the use of our name and reference to our
opinion under the heading "VALIDITY OF THE SECURITIES" in the prospectus
forming a part thereof. In giving this consent, we do not thereby admit that
we come within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. This
opinion speaks only as of the date hereof and is based on our understandings
and assumptions as to present facts, and on our review of the
above-referenced documents and the application of Delaware law as the same
exist as of the date hereof, and we undertake no obligation to update or
supplement this opinion after the date hereof for the benefit of any person
or entity with respect to any facts or circumstances that may hereafter come
to our attention or any changes in facts or law that may hereafter occur or
take effect. This opinion is intended solely for the benefit of the
addressees hereof in connection with the matters contemplated hereby and may
not be relied on by any other person or entity or for any other purpose
without our prior written consent.
Very truly yours,
MORRIS, NICHOLS, ARSHT & TUNNELL
<PAGE>
[LETTERHEAD OF SULLIVAN & CROMWELL]
April 1, 1999
Cablevision Systems Corporation
CSC Holdings, Inc.
CSC Capital I
CSC Capital II
CSC Capital III
c/o Cablevision Systems Corporation,
1111 Stewart Avenue,
Bethpage, New York 11714.
Re: Form S-3 Registration Statement
-------------------------------
Ladies and Gentlemen:
We have acted as your counsel in connection with the Registration
Statement (Registration No. 333-71965) on Form S-3 filed with the Securities and
Exchange Commission on April 1, 1999 (the "Registration Statement") in
connection with the shelf registration of up to $1,500,000,000 of debt
securities, preferred stock and preferred securities.
We hereby confirm to you that, in our opinion, the statements set forth
under the heading "U.S. Federal Income Tax Consequences Relating to Preferred
Securities" in the Prospectus included in the Registration Statement concerning
<PAGE>
Cablevision Systems Corporation
CSC Holdings, Inc.
CSC Capital I
CSC Capital II
CSC Capital III -2-
the principal United States federal income tax consequences of the purchase,
ownership and disposition of preferred securities are a fair and accurate
summary of the matters therein discussed.
We hereby consent to the filing with the Securities and Exchange
Commission of this letter as an exhibit to the Registration Statement and all
amendments thereto and to the reference to us under the heading "U.S. Federal
Income Tax Consequences Relating to Preferred Securities." In giving such
consent, we do not thereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act of 1933 or the rules
and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Sullivan & Cromwell
<PAGE>
Exhibit 12.1
CABLEVISION SYSTEMS CORPORATION
COMPUTATION OF DEFICIENCY OF EARNINGS AVAILABLE TO COVER FIXED CHARGES
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-----------------------------------------------------------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
EARNINGS:
Income/(Loss) from
continuing operations $ (448,504) $ (12,104) $ (459,859) $ (337,707) $ (321,536)
---------- ---------- ---------- ---------- ----------
ADD:
Fixed charges per (B)
below 458,230 381,202 278,437 322,054 269,627
Amortization of previously
capitalized interest - - - - -
DEDUCT:
Interest capitalized
during period - - - - -
---------- ---------- ---------- ---------- ----------
Earnings for computation
purposes (A) $ 9,726 $ 369,098 $ (181,422) $ (15,653) $ (51,909)
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
Fixed Charges:
Interest on indebtedness,
expensed or capitalized,
including amortization of
debt expense 426,402 368,700 $ 268,177 313,850 263,299
---------- ---------- ---------- ---------- ----------
Portion of rents (D)
representative of the
interest factor 31,828 12,502 10,260 8,204 6,328
---------- ---------- ---------- ---------- ----------
Fixed Charges for
computation purposes (B) $ 458,230 $ 381,202 $ 278,437 $ 322,054 $ 269,627
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
Deficiency of earnings
available to cover fixed
charges $ (448,504) $ (12,104) $ (459,859) $ (337,707) $ (321,536)
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
</TABLE>
<PAGE>
Exhibit 12.1
CSC HOLDINGS, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND
DEFICIENCY OF EARNINGS AVAILABLE TO COVER FIXED CHARGES AND
DEFICIENCY OF EARNINGS AVAILABLE TO COVER FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-----------------------------------------------------------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
EARNINGS:
Income/(Loss) from
continuing operations $ (239,533) $ 136,663 $ (332,079) $ (317,458) $ (315,151)
---------- ---------- ---------- ---------- ----------
ADD:
Fixed charges per (B)
below 422,897 381,202 278,437 322,054 269,627
Amortization of previously
capitalized interest - - - - -
DEDUCT:
Interest capitalized
during period - - - - -
---------- ---------- ---------- ---------- ----------
Earnings for computation
purposes (A) $ 183,364 $ 517,865 $ (53,642) $ 4,596 $ (45,524)
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
Fixed Charges:
Interest on indebtedness,
expensed or capitalized,
including amortization of
debt expense 393,008 368,700 $ 268,177 313,850 263,299
---------- ---------- ---------- ---------- ----------
Portion of rents (D)
representative of the
interest factor 29,889 12,502 10,260 8,204 6,328
---------- ---------- ---------- ---------- ----------
Fixed Charges for
computation purposes (B) $ 422,897 $ 381,202 $ 278,437 $ 322,054 $ 269,627
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
Ratio of earnings to fixed
charges (A)/(B) - 1.36 - - -
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
Deficiency or earnings
available to cover fixed
charges $ (239,533) - $ (332,079) $ (317,458) $ (315,151)
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
Preferred Stock
dividends $ 161,872 $ 148,767 $ 127,780 $ 20,249 $ 6,385
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
Deficiency of earnings
available to cover fixed
charges and preferred
stock dividends $ (401,405) $ (12,104) $ (459,859) $ (337,707) $ (321,536)
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
</TABLE>
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
The Boards of Directors
Cablevision Systems Corporation and
CSC Holdings, Inc.:
We consent to the incorporation by reference in the registration statement
on Form S-3 of Cablevision Systems Corporation, CSC Holdings, Inc., CSC Capital
I, CSC Capital II and CSC Capital III of our reports, dated March 12, 1999,
relating to (i) the consolidated balance sheets of Cablevision Systems
Corporation and subsidiaries as of December 31, 1998 and 1997, and the related
consolidated statements of operations, stockholders' deficiency and cash flows
for each of the years in the three-year period ended December 31, 1998, and the
related schedule, and (ii) the consolidated balance sheets of CSC Holdings, Inc.
and subsidiaries as of December 31, 1998 and 1997, and the related consolidated
statements of operations, stockholders' deficiency and cash flows for each of
the years in the three-year period ended December 31, 1998, and the related
schedule, which reports appear in the December 31, 1998 combined annual report
on Form 10-K of Cablevision Systems Corporation and CSC Holdings, Inc., and to
the references to our firm under the heading "Experts" in the registration
statement.
KPMG LPP
Melville, New York
April 5, 1999
<PAGE>
Exhibit 25.1
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
---------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------
CSC Holdings, Inc.
(Exact name of obligor as specified in its charter)
Delaware 11-2776686
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1111 Stewart Avenue
Bethpage, New York 11714
(Address of principal executive offices) (Zip code)
---------------
Senior Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 30th day of March, 1999.
THE BANK OF NEW YORK
By: /s/ CHERYL L. LASER
---------------------------------
Name: CHERYL L. LASER
Title: ASSISTANT VICE PRESIDENT
<PAGE>
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ................. $ 3,951,273
Interest-bearing balances .......................................... 4,134,162
Securities:
Held-to-maturity securities ........................................ 932,468
Available-for-sale securities ...................................... 4,279,246
Federal funds sold and Securities purchased under
agreements to resell ............................................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income .......................................... 37,861,802
LESS: Allowance for loan and
lease losses .................................... 619,791
LESS: Allocated transfer risk
reserve ......................................... 3,572
Loans and leases, net of unearned income,
allowance, and reserve ........................................... 37,238,439
Trading Assets ........................................................ 1,551,556
Premises and fixed assets (including capitalized
leases) ............................................................ 684,181
Other real estate owned ............................................... 10,404
Investments in unconsolidated subsidiaries and
associated companies ............................................... 196,032
Customers' liability to this bank on acceptances
outstanding ........................................................ 895,160
Intangible assets ..................................................... 1,127,375
Other assets .......................................................... 1,915,742
------------
Total assets .......................................................... $ 60,077,664
============
LIABILITIES
Deposits:
In domestic offices ................................................ $ 27,020,578
Noninterest-bearing................................ 11,271,304
Interest-bearing................................... 15,749,274
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ........................................... 17,197,743
Noninterest-bearing............................... 103,007
Interest-bearing.................................. 17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase ........................................... 1,761,170
Demand notes issued to the U.S.Treasury ............................... 125,423
Trading liabilities ................................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less ........................ 1,903,700
With remaining maturity of more than one year
through three years .............................................. 0
With remaining maturity of more than three years ................... 31,639
Bank's liability on acceptances executed and
outstanding ........................................................ 900,390
Subordinated notes and debentures ..................................... 1,308,000
Other liabilities ..................................................... 2,708,852
------------
Total liabilities ..................................................... 54,583,127
------------
EQUITY CAPITAL
Common stock .......................................................... 1,135,284
Surplus ............................................................... 764,443
Undivided profits and capital reserves ................................ 3,542,168
Net unrealized holding gains (losses) on
available-for-sale securities ...................................... 82,367
Cumulative foreign currency translation adjustments.................... (29,725)
------------
Total equity capital .................................................. 5,494,537
------------
Total liabilities and equity capital .................................. $ 60,077,664
============
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Gerald L. Hassell ) Directors
Alan R. Griffith )
- --------------------------------------------------------------------------------
<PAGE>
Exhibit 25.2
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
---------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------
CSC Holdings, Inc.
(Exact name of obligor as specified in its charter)
Delaware 11-2776686
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1111 Stewart Avenue
Bethpage, New York 11714
(Address of principal executive offices) (Zip code)
---------------
Subordinated Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 30th day of March, 1999.
THE BANK OF NEW YORK
By: /s/ CHERYL L. LASER
---------------------------------
Name: CHERYL L. LASER
Title: ASSISTANT VICE PRESIDENT
<PAGE>
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ................. $ 3,951,273
Interest-bearing balances .......................................... 4,134,162
Securities:
Held-to-maturity securities ........................................ 932,468
Available-for-sale securities ...................................... 4,279,246
Federal funds sold and Securities purchased under
agreements to resell ............................................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income .......................................... 37,861,802
LESS: Allowance for loan and
lease losses .................................... 619,791
LESS: Allocated transfer risk
reserve ......................................... 3,572
Loans and leases, net of unearned income,
allowance, and reserve ........................................... 37,238,439
Trading Assets ........................................................ 1,551,556
Premises and fixed assets (including capitalized
leases) ............................................................ 684,181
Other real estate owned ............................................... 10,404
Investments in unconsolidated subsidiaries and
associated companies ............................................... 196,032
Customers' liability to this bank on acceptances
outstanding ........................................................ 895,160
Intangible assets ..................................................... 1,127,375
Other assets .......................................................... 1,915,742
------------
Total assets .......................................................... $ 60,077,664
============
LIABILITIES
Deposits:
In domestic offices ................................................ $ 27,020,578
Noninterest-bearing............................... 11,271,304
Interest-bearing.................................. 15,749,274
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ........................................... 17,197,743
Noninterest-bearing............................... 103,007
Interest-bearing.................................. 17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase ........................................... 1,761,170
Demand notes issued to the U.S.Treasury ............................... 125,423
Trading liabilities ................................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less ........................ 1,903,700
With remaining maturity of more than one year
through three years .............................................. 0
With remaining maturity of more than three years ................... 31,639
Bank's liability on acceptances executed and
outstanding ........................................................ 900,390
Subordinated notes and debentures ..................................... 1,308,000
Other liabilities ..................................................... 2,708,852
------------
Total liabilities ..................................................... 54,583,127
------------
EQUITY CAPITAL
Common stock .......................................................... 1,135,284
Surplus ............................................................... 764,443
Undivided profits and capital reserves ................................ 3,542,168
Net unrealized holding gains (losses) on
available-for-sale securities ...................................... 82,367
Cumulative foreign currency translation adjustments.................... (29,725)
------------
Total equity capital .................................................. 5,494,537
------------
Total liabilities and equity capital .................................. $ 60,077,664
============
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Gerald L. Hassell ) Directors
Alan R. Griffith )
- --------------------------------------------------------------------------------
<PAGE>
Exhibit 25.3
=============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------
CSC Holdings, Inc.
(Exact name of obligor as specified in its charter)
Delaware 11-2776686
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1111 Stewart Avenue
Bethpage, New York 11714
(Address of principal executive offices) (Zip code)
---------------
Junior Subordinated Debt Securities
(Title of the indenture securities)
=============================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 30th day of March, 1999.
THE BANK OF NEW YORK
By: /s/ CHERYL L. LASER
--------------------------------------
Name: CHERYL L. LASER
Title: ASSISTANT VICE PRESIDENT
<PAGE>
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ................. $ 3,951,273
Interest-bearing balances .......................................... 4,134,162
Securities:
Held-to-maturity securities ........................................ 932,468
Available-for-sale securities ...................................... 4,279,246
Federal funds sold and Securities purchased under
agreements to resell ............................................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income .......................................... 37,861,802
LESS: Allowance for loan and
lease losses .................................... 619,791
LESS: Allocated transfer risk
reserve ......................................... 3,572
Loans and leases, net of unearned income,
allowance, and reserve ........................................... 37,238,439
Trading Assets ........................................................ 1,551,556
Premises and fixed assets (including capitalized
leases) ............................................................ 684,181
Other real estate owned ............................................... 10,404
Investments in unconsolidated subsidiaries and
associated companies ............................................... 196,032
Customers' liability to this bank on acceptances
outstanding ........................................................ 895,160
Intangible assets ..................................................... 1,127,375
Other assets .......................................................... 1,915,742
------------
Total assets .......................................................... $ 60,077,664
============
LIABILITIES
Deposits:
In domestic offices ................................................ $ 27,020,578
Noninterest-bearing............................... 11,271,304
Interest-bearing.................................. 15,749,274
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ........................................... 17,197,743
Noninterest-bearing............................... 103,007
Interest-bearing.................................. 17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase ........................................... 1,761,170
Demand notes issued to the U.S.Treasury ............................... 125,423
Trading liabilities ................................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less ........................ 1,903,700
With remaining maturity of more than one year
through three years .............................................. 0
With remaining maturity of more than three years ................... 31,639
Bank's liability on acceptances executed and
outstanding ........................................................ 900,390
Subordinated notes and debentures ..................................... 1,308,000
Other liabilities ..................................................... 2,708,852
------------
Total liabilities ..................................................... 54,583,127
------------
EQUITY CAPITAL
Common stock .......................................................... 1,135,284
Surplus ............................................................... 764,443
Undivided profits and capital reserves ................................ 3,542,168
Net unrealized holding gains (losses) on
available-for-sale securities ...................................... 82,367
Cumulative foreign currency translation adjustments.................... (29,725)
------------
Total equity capital .................................................. 5,494,537
------------
Total liabilities and equity capital .................................. $ 60,077,664
============
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Gerald L. Hassell ) Directors
Alan R. Griffith )
- --------------------------------------------------------------------------------
<PAGE>
Exhibit 25.4
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
---------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------
Cablevision Systems Corporation
(Exact name of obligor as specified in its charter)
Delaware 11-3415180
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1111 Stewart Avenue
Bethpage, New York 11714
(Address of principal executive offices) (Zip code)
---------------
Junior Subordinated Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 30th day of March, 1999.
THE BANK OF NEW YORK
By: /s/ CHERYL L. LASER
---------------------------------
Name: CHERYL L. LASER
Title: ASSISTANT VICE PRESIDENT
<PAGE>
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ................. $ 3,951,273
Interest-bearing balances .......................................... 4,134,162
Securities:
Held-to-maturity securities ........................................ 932,468
Available-for-sale securities ...................................... 4,279,246
Federal funds sold and Securities purchased under
agreements to resell ............................................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income .......................................... 37,861,802
LESS: Allowance for loan and
lease losses .................................... 619,791
LESS: Allocated transfer risk
reserve ......................................... 3,572
Loans and leases, net of unearned income,
allowance, and reserve ........................................... 37,238,439
Trading Assets ........................................................ 1,551,556
Premises and fixed assets (including capitalized
leases) ............................................................ 684,181
Other real estate owned ............................................... 10,404
Investments in unconsolidated subsidiaries and
associated companies ............................................... 196,032
Customers' liability to this bank on acceptances
outstanding ........................................................ 895,160
Intangible assets ..................................................... 1,127,375
Other assets .......................................................... 1,915,742
------------
Total assets .......................................................... $ 60,077,664
============
LIABILITIES
Deposits:
In domestic offices ................................................ $ 27,020,578
Noninterest-bearing................................ 11,271,304
Interest-bearing................................... 15,749,274
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ........................................... 17,197,743
Noninterest-bearing................................ 103,007
Interest-bearing................................... 17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase ........................................... 1,761,170
Demand notes issued to the U.S.Treasury ............................... 125,423
Trading liabilities ................................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less ........................ 1,903,700
With remaining maturity of more than one year
through three years .............................................. 0
With remaining maturity of more than three years ................... 31,639
Bank's liability on acceptances executed and
outstanding ........................................................ 900,390
Subordinated notes and debentures ..................................... 1,308,000
Other liabilities ..................................................... 2,708,852
------------
Total liabilities ..................................................... 54,583,127
------------
EQUITY CAPITAL
Common stock .......................................................... 1,135,284
Surplus ............................................................... 764,443
Undivided profits and capital reserves ................................ 3,542,168
Net unrealized holding gains (losses) on
available-for-sale securities ...................................... 82,367
Cumulative foreign currency translation adjustments.................... (29,725)
------------
Total equity capital .................................................. 5,494,537
------------
Total liabilities and equity capital .................................. $ 60,077,664
============
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Gerald L. Hassell ) Directors
Alan R. Griffith )
- --------------------------------------------------------------------------------
<PAGE>
Exhibit 25.5
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
--------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
CSC Capital I
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1111 Stewart Avenue
Bethpage, New York 11714
(Address of principal executive offices) (Zip code)
--------------
Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 30th day of March, 1999.
THE BANK OF NEW YORK
By: /s/ CHERYL L. LASER
-------------------------------
Name: CHERYL L. LASER
Title: ASSISTANT VICE PRESIDENT
<PAGE>
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ................. $ 3,951,273
Interest-bearing balances .......................................... 4,134,162
Securities:
Held-to-maturity securities ........................................ 932,468
Available-for-sale securities ...................................... 4,279,246
Federal funds sold and Securities purchased under
agreements to resell ............................................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income .......................................... 37,861,802
LESS: Allowance for loan and
lease losses .................................... 619,791
LESS: Allocated transfer risk
reserve ......................................... 3,572
Loans and leases, net of unearned income,
allowance, and reserve ........................................... 37,238,439
Trading Assets ........................................................ 1,551,556
Premises and fixed assets (including capitalized
leases) ............................................................ 684,181
Other real estate owned ............................................... 10,404
Investments in unconsolidated subsidiaries and
associated companies ............................................... 196,032
Customers' liability to this bank on acceptances
outstanding ........................................................ 895,160
Intangible assets ..................................................... 1,127,375
Other assets .......................................................... 1,915,742
------------
Total assets .......................................................... $ 60,077,664
============
LIABILITIES
Deposits:
In domestic offices ................................................ $ 27,020,578
Noninterest-bearing................................ 11,271,304
Interest-bearing................................... 15,749,274
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ........................................... 17,197,743
Noninterest-bearing................................ 103,007
Interest-bearing................................... 17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase ........................................... 1,761,170
Demand notes issued to the U.S.Treasury ............................... 125,423
Trading liabilities ................................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less ........................ 1,903,700
With remaining maturity of more than one year
through three years .............................................. 0
With remaining maturity of more than three years ................... 31,639
Bank's liability on acceptances executed and
outstanding ........................................................ 900,390
Subordinated notes and debentures ..................................... 1,308,000
Other liabilities ..................................................... 2,708,852
------------
Total liabilities ..................................................... 54,583,127
------------
EQUITY CAPITAL
Common stock .......................................................... 1,135,284
Surplus ............................................................... 764,443
Undivided profits and capital reserves ................................ 3,542,168
Net unrealized holding gains (losses) on
available-for-sale securities ...................................... 82,367
Cumulative foreign currency translation adjustments.................... (29,725)
------------
Total equity capital .................................................. 5,494,537
------------
Total liabilities and equity capital .................................. $ 60,077,664
============
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Gerald L. Hassell ) Directors
Alan R. Griffith )
- --------------------------------------------------------------------------------
<PAGE>
Exhibit 25.6
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
---------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------
CSC Capital II
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1111 Stewart Avenue
Bethpage, New York 11714
(Address of principal executive offices) (Zip code)
---------------
Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 30th day of March, 1999.
THE BANK OF NEW YORK
By: /s/ CHERYL L. LASER
---------------------------------
Name: CHERYL L. LASER
Title: ASSISTANT VICE PRESIDENT
<PAGE>
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ................. $ 3,951,273
Interest-bearing balances .......................................... 4,134,162
Securities:
Held-to-maturity securities ........................................ 932,468
Available-for-sale securities ...................................... 4,279,246
Federal funds sold and Securities purchased under
agreements to resell ............................................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income .......................................... 37,861,802
LESS: Allowance for loan and
lease losses .................................... 619,791
LESS: Allocated transfer risk
reserve ......................................... 3,572
Loans and leases, net of unearned income,
allowance, and reserve ........................................... 37,238,439
Trading Assets ........................................................ 1,551,556
Premises and fixed assets (including capitalized
leases) ............................................................ 684,181
Other real estate owned ............................................... 10,404
Investments in unconsolidated subsidiaries and
associated companies ............................................... 196,032
Customers' liability to this bank on acceptances
outstanding ........................................................ 895,160
Intangible assets ..................................................... 1,127,375
Other assets .......................................................... 1,915,742
------------
Total assets .......................................................... $ 60,077,664
============
LIABILITIES
Deposits:
In domestic offices ................................................ $ 27,020,578
Noninterest-bearing................................ 11,271,304
Interest-bearing................................... 15,749,274
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ........................................... 17,197,743
Noninterest-bearing................................ 103,007
Interest-bearing................................... 17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase ........................................... 1,761,170
Demand notes issued to the U.S.Treasury ............................... 125,423
Trading liabilities ................................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less ........................ 1,903,700
With remaining maturity of more than one year
through three years .............................................. 0
With remaining maturity of more than three years ................... 31,639
Bank's liability on acceptances executed and
outstanding ........................................................ 900,390
Subordinated notes and debentures ..................................... 1,308,000
Other liabilities ..................................................... 2,708,852
------------
Total liabilities ..................................................... 54,583,127
------------
EQUITY CAPITAL
Common stock .......................................................... 1,135,284
Surplus ............................................................... 764,443
Undivided profits and capital reserves ................................ 3,542,168
Net unrealized holding gains (losses) on
available-for-sale securities ...................................... 82,367
Cumulative foreign currency translation adjustments.................... (29,725)
------------
Total equity capital .................................................. 5,494,537
------------
Total liabilities and equity capital .................................. $ 60,077,664
============
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Gerald L. Hassell ) Directors
Alan R. Griffith )
- --------------------------------------------------------------------------------
<PAGE>
Exhibit 25.7
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
---------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------
CSC Capital III
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1111 Stewart Avenue
Bethpage, New York 11714
(Address of principal executive offices) (Zip code)
---------------
Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 30th day of March, 1999.
THE BANK OF NEW YORK
By: /s/ CHERYL L. LASER
---------------------------------
Name: CHERYL L. LASER
Title: ASSISTANT VICE PRESIDENT
<PAGE>
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ................. $ 3,951,273
Interest-bearing balances .......................................... 4,134,162
Securities:
Held-to-maturity securities ........................................ 932,468
Available-for-sale securities ...................................... 4,279,246
Federal funds sold and Securities purchased under
agreements to resell ............................................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income .......................................... 37,861,802
LESS: Allowance for loan and
lease losses .................................... 619,791
LESS: Allocated transfer risk
reserve ......................................... 3,572
Loans and leases, net of unearned income,
allowance, and reserve ........................................... 37,238,439
Trading Assets ........................................................ 1,551,556
Premises and fixed assets (including capitalized
leases) ............................................................ 684,181
Other real estate owned ............................................... 10,404
Investments in unconsolidated subsidiaries and
associated companies ............................................... 196,032
Customers' liability to this bank on acceptances
outstanding ........................................................ 895,160
Intangible assets ..................................................... 1,127,375
Other assets .......................................................... 1,915,742
------------
Total assets .......................................................... $ 60,077,664
============
LIABILITIES
Deposits:
In domestic offices ................................................ $ 27,020,578
Noninterest-bearing............................... 11,271,304
Interest-bearing.................................. 15,749,274
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ........................................... 17,197,743
Noninterest-bearing............................... 103,007
Interest-bearing.................................. 17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase ........................................... 1,761,170
Demand notes issued to the U.S.Treasury ............................... 125,423
Trading liabilities ................................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less ........................ 1,903,700
With remaining maturity of more than one year
through three years .............................................. 0
With remaining maturity of more than three years ................... 31,639
Bank's liability on acceptances executed and
outstanding ........................................................ 900,390
Subordinated notes and debentures ..................................... 1,308,000
Other liabilities ..................................................... 2,708,852
------------
Total liabilities ..................................................... 54,583,127
------------
EQUITY CAPITAL
Common stock .......................................................... 1,135,284
Surplus ............................................................... 764,443
Undivided profits and capital reserves ................................ 3,542,168
Net unrealized holding gains (losses) on
available-for-sale securities ...................................... 82,367
Cumulative foreign currency translation adjustments.................... (29,725)
------------
Total equity capital .................................................. 5,494,537
------------
Total liabilities and equity capital .................................. $ 60,077,664
============
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Gerald L. Hassell ) Directors
Alan R. Griffith )
- --------------------------------------------------------------------------------
<PAGE>
Exhibit 25.8
=============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
-------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
CSC Holdings, Inc.
(Exact name of obligor as specified in its charter)
Delaware 11-2776686
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1111 Stewart Avenue
Bethpage, New York 11714
(Address of principal executive offices) (Zip code)
-------------
Guarantee of Preferred Securities of CSC Capital I
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(b) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 30th day of March, 1999.
THE BANK OF NEW YORK
By: /s/ CHERYL L. LASER
------------------------------------
Name: CHERYL L. LASER
Title: ASSISTANT VICE PRESIDENT
<PAGE>
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ................. $ 3,951,273
Interest-bearing balances .......................................... 4,134,162
Securities:
Held-to-maturity securities ........................................ 932,468
Available-for-sale securities ...................................... 4,279,246
Federal funds sold and Securities purchased under
agreements to resell ............................................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income .......................................... 37,861,802
LESS: Allowance for loan and
lease losses .................................... 619,791
LESS: Allocated transfer risk
reserve ......................................... 3,572
Loans and leases, net of unearned income,
allowance, and reserve ........................................... 37,238,439
Trading Assets ........................................................ 1,551,556
Premises and fixed assets (including capitalized
leases) ............................................................ 684,181
Other real estate owned ............................................... 10,404
Investments in unconsolidated subsidiaries and
associated companies ............................................... 196,032
Customers' liability to this bank on acceptances
outstanding ........................................................ 895,160
Intangible assets ..................................................... 1,127,375
Other assets .......................................................... 1,915,742
------------
Total assets .......................................................... $ 60,077,664
============
LIABILITIES
Deposits:
In domestic offices ................................................ $ 27,020,578
Noninterest-bearing............................... 11,271,304
Interest-bearing.................................. 15,749,274
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ........................................... 17,197,743
Noninterest-bearing............................... 103,007
Interest-bearing.................................. 17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase ........................................... 1,761,170
Demand notes issued to the U.S.Treasury ............................... 125,423
Trading liabilities ................................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less ........................ 1,903,700
With remaining maturity of more than one year
through three years .............................................. 0
With remaining maturity of more than three years ................... 31,639
Bank's liability on acceptances executed and
outstanding ........................................................ 900,390
Subordinated notes and debentures ..................................... 1,308,000
Other liabilities ..................................................... 2,708,852
------------
Total liabilities ..................................................... 54,583,127
------------
EQUITY CAPITAL
Common stock .......................................................... 1,135,284
Surplus ............................................................... 764,443
Undivided profits and capital reserves ................................ 3,542,168
Net unrealized holding gains (losses) on
available-for-sale securities ...................................... 82,367
Cumulative foreign currency translation adjustments.................... (29,725)
------------
Total equity capital .................................................. 5,494,537
------------
Total liabilities and equity capital .................................. $ 60,077,664
============
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Gerald L. Hassell ) Directors
Alan R. Griffith )
- --------------------------------------------------------------------------------
<PAGE>
Exhibit 25.9
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
---------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------
CSC Holdings, Inc.
(Exact name of obligor as specified in its charter)
Delaware 11-2776686
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1111 Stewart Avenue
Bethpage, New York 11714
(Address of principal executive offices) (Zip code)
---------------
Guarantee of Preferred Securities of CSC Capital II
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 30th day of March, 1999.
THE BANK OF NEW YORK
By: /s/ CHERYL L. LASER
---------------------------------
Name: CHERYL L. LASER
Title: ASSISTANT VICE PRESIDENT
<PAGE>
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ................. $ 3,951,273
Interest-bearing balances .......................................... 4,134,162
Securities:
Held-to-maturity securities ........................................ 932,468
Available-for-sale securities ...................................... 4,279,246
Federal funds sold and Securities purchased under
agreements to resell ............................................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income .......................................... 37,861,802
LESS: Allowance for loan and
lease losses .................................... 619,791
LESS: Allocated transfer risk
reserve ......................................... 3,572
Loans and leases, net of unearned income,
allowance, and reserve ........................................... 37,238,439
Trading Assets ........................................................ 1,551,556
Premises and fixed assets (including capitalized
leases) ............................................................ 684,181
Other real estate owned ............................................... 10,404
Investments in unconsolidated subsidiaries and
associated companies ............................................... 196,032
Customers' liability to this bank on acceptances
outstanding ........................................................ 895,160
Intangible assets ..................................................... 1,127,375
Other assets .......................................................... 1,915,742
------------
Total assets .......................................................... $ 60,077,664
============
LIABILITIES
Deposits:
In domestic offices ................................................ $ 27,020,578
Noninterest-bearing................................ 11,271,304
Interest-bearing................................... 15,749,274
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ........................................... 17,197,743
Noninterest-bearing................................ 103,007
Interest-bearing................................... 17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase ........................................... 1,761,170
Demand notes issued to the U.S.Treasury ............................... 125,423
Trading liabilities ................................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less ........................ 1,903,700
With remaining maturity of more than one year
through three years .............................................. 0
With remaining maturity of more than three years ................... 31,639
Bank's liability on acceptances executed and
outstanding ........................................................ 900,390
Subordinated notes and debentures ..................................... 1,308,000
Other liabilities ..................................................... 2,708,852
------------
Total liabilities ..................................................... 54,583,127
------------
EQUITY CAPITAL
Common stock .......................................................... 1,135,284
Surplus ............................................................... 764,443
Undivided profits and capital reserves ................................ 3,542,168
Net unrealized holding gains (losses) on
available-for-sale securities ...................................... 82,367
Cumulative foreign currency translation adjustments.................... (29,725)
------------
Total equity capital .................................................. 5,494,537
------------
Total liabilities and equity capital .................................. $ 60,077,664
============
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Gerald L. Hassell ) Directors
Alan R. Griffith )
- --------------------------------------------------------------------------------
<PAGE>
Exhibit 25.10
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
---------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------
CSC Holdings, Inc.
(Exact name of obligor as specified in its charter)
Delaware 11-2776686
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1111 Stewart Avenue
Bethpage, New York 11714
(Address of principal executive offices) (Zip code)
---------------
Guarantee of Preferred Securities of CSC Capital III
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 30th day of March, 1999.
THE BANK OF NEW YORK
By: /s/ CHERYL L. LASER
---------------------------------
Name: CHERYL L. LASER
Title: ASSISTANT VICE PRESIDENT
<PAGE>
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ................. $ 3,951,273
Interest-bearing balances .......................................... 4,134,162
Securities:
Held-to-maturity securities ........................................ 932,468
Available-for-sale securities ...................................... 4,279,246
Federal funds sold and Securities purchased under
agreements to resell ............................................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income .......................................... 37,861,802
LESS: Allowance for loan and
lease losses .................................... 619,791
LESS: Allocated transfer risk
reserve ......................................... 3,572
Loans and leases, net of unearned income,
allowance, and reserve ........................................... 37,238,439
Trading Assets ........................................................ 1,551,556
Premises and fixed assets (including capitalized
leases) ............................................................ 684,181
Other real estate owned ............................................... 10,404
Investments in unconsolidated subsidiaries and
associated companies ............................................... 196,032
Customers' liability to this bank on acceptances
outstanding ........................................................ 895,160
Intangible assets ..................................................... 1,127,375
Other assets .......................................................... 1,915,742
------------
Total assets .......................................................... $ 60,077,664
============
LIABILITIES
Deposits:
In domestic offices ................................................ $ 27,020,578
Noninterest-bearing................................ 11,271,304
Interest-bearing................................... 15,749,274
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ........................................... 17,197,743
Noninterest-bearing................................ 103,007
Interest-bearing................................... 17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase ........................................... 1,761,170
Demand notes issued to the U.S.Treasury ............................... 125,423
Trading liabilities ................................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less ........................ 1,903,700
With remaining maturity of more than one year
through three years .............................................. 0
With remaining maturity of more than three years ................... 31,639
Bank's liability on acceptances executed and
outstanding ........................................................ 900,390
Subordinated notes and debentures ..................................... 1,308,000
Other liabilities ..................................................... 2,708,852
------------
Total liabilities ..................................................... 54,583,127
------------
EQUITY CAPITAL
Common stock .......................................................... 1,135,284
Surplus ............................................................... 764,443
Undivided profits and capital reserves ................................ 3,542,168
Net unrealized holding gains (losses) on
available-for-sale securities ...................................... 82,367
Cumulative foreign currency translation adjustments.................... (29,725)
------------
Total equity capital .................................................. 5,494,537
------------
Total liabilities and equity capital .................................. $ 60,077,664
============
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Gerald L. Hassell ) Directors
Alan R. Griffith )
- --------------------------------------------------------------------------------
<PAGE>
Exhibit 25.11
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
---------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------
Cablevision Systems Corporation
(Exact name of obligor as specified in its charter)
Delaware 11-3415180
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1111 Stewart Avenue
Bethpage, New York 11714
(Address of principal executive offices) (Zip code)
---------------
Guarantee of Preferred Securities of CSC Capital I
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 30th day of March, 1999.
THE BANK OF NEW YORK
By: /s/ CHERYL L. LASER
---------------------------------
Name: CHERYL L. LASER
Title: ASSISTANT VICE PRESIDENT
<PAGE>
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ................. $ 3,951,273
Interest-bearing balances .......................................... 4,134,162
Securities:
Held-to-maturity securities ........................................ 932,468
Available-for-sale securities ...................................... 4,279,246
Federal funds sold and Securities purchased under
agreements to resell ............................................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income .......................................... 37,861,802
LESS: Allowance for loan and
lease losses .................................... 619,791
LESS: Allocated transfer risk
reserve ......................................... 3,572
Loans and leases, net of unearned income,
allowance, and reserve ........................................... 37,238,439
Trading Assets ........................................................ 1,551,556
Premises and fixed assets (including capitalized
leases) ............................................................ 684,181
Other real estate owned ............................................... 10,404
Investments in unconsolidated subsidiaries and
associated companies ............................................... 196,032
Customers' liability to this bank on acceptances
outstanding ........................................................ 895,160
Intangible assets ..................................................... 1,127,375
Other assets .......................................................... 1,915,742
------------
Total assets .......................................................... $ 60,077,664
============
LIABILITIES
Deposits:
In domestic offices ................................................ $ 27,020,578
Noninterest-bearing................................ 11,271,304
Interest-bearing................................... 15,749,274
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ........................................... 17,197,743
Noninterest-bearing................................ 103,007
Interest-bearing................................... 17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase ........................................... 1,761,170
Demand notes issued to the U.S.Treasury ............................... 125,423
Trading liabilities ................................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less ........................ 1,903,700
With remaining maturity of more than one year
through three years .............................................. 0
With remaining maturity of more than three years ................... 31,639
Bank's liability on acceptances executed and
outstanding ........................................................ 900,390
Subordinated notes and debentures ..................................... 1,308,000
Other liabilities ..................................................... 2,708,852
------------
Total liabilities ..................................................... 54,583,127
------------
EQUITY CAPITAL
Common stock .......................................................... 1,135,284
Surplus ............................................................... 764,443
Undivided profits and capital reserves ................................ 3,542,168
Net unrealized holding gains (losses) on
available-for-sale securities ...................................... 82,367
Cumulative foreign currency translation adjustments.................... (29,725)
------------
Total equity capital .................................................. 5,494,537
------------
Total liabilities and equity capital .................................. $ 60,077,664
============
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Gerald L. Hassell ) Directors
Alan R. Griffith )
- --------------------------------------------------------------------------------
<PAGE>
Exhibit 25.12
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
---------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------
Cablevision Systems Corporation
(Exact name of obligor as specified in its charter)
Delaware 11-3415180
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1111 Stewart Avenue
Bethpage, New York 11714
(Address of principal executive offices) (Zip code)
---------------
Guarantee of Preferred Securities of CSC Capital II
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 30th day of March, 1999.
THE BANK OF NEW YORK
By: /s/ CHERYL L. LASER
---------------------------------
Name: CHERYL L. LASER
Title: ASSISTANT VICE PRESIDENT
<PAGE>
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ................. $ 3,951,273
Interest-bearing balances .......................................... 4,134,162
Securities:
Held-to-maturity securities ........................................ 932,468
Available-for-sale securities ...................................... 4,279,246
Federal funds sold and Securities purchased under
agreements to resell ............................................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income .......................................... 37,861,802
LESS: Allowance for loan and
lease losses .................................... 619,791
LESS: Allocated transfer risk
reserve ......................................... 3,572
Loans and leases, net of unearned income,
allowance, and reserve ........................................... 37,238,439
Trading Assets ........................................................ 1,551,556
Premises and fixed assets (including capitalized
leases) ............................................................ 684,181
Other real estate owned ............................................... 10,404
Investments in unconsolidated subsidiaries and
associated companies ............................................... 196,032
Customers' liability to this bank on acceptances
outstanding ........................................................ 895,160
Intangible assets ..................................................... 1,127,375
Other assets .......................................................... 1,915,742
------------
Total assets .......................................................... $ 60,077,664
============
LIABILITIES
Deposits:
In domestic offices ................................................ $ 27,020,578
Noninterest-bearing................................ 11,271,304
Interest-bearing................................... 15,749,274
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ........................................... 17,197,743
Noninterest-bearing................................ 103,007
Interest-bearing................................... 17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase ........................................... 1,761,170
Demand notes issued to the U.S.Treasury ............................... 125,423
Trading liabilities ................................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less ........................ 1,903,700
With remaining maturity of more than one year
through three years .............................................. 0
With remaining maturity of more than three years ................... 31,639
Bank's liability on acceptances executed and
outstanding ........................................................ 900,390
Subordinated notes and debentures ..................................... 1,308,000
Other liabilities ..................................................... 2,708,852
------------
Total liabilities ..................................................... 54,583,127
------------
EQUITY CAPITAL
Common stock .......................................................... 1,135,284
Surplus ............................................................... 764,443
Undivided profits and capital reserves ................................ 3,542,168
Net unrealized holding gains (losses) on
available-for-sale securities ...................................... 82,367
Cumulative foreign currency translation adjustments.................... (29,725)
------------
Total equity capital .................................................. 5,494,537
------------
Total liabilities and equity capital .................................. $ 60,077,664
============
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Gerald L. Hassell ) Directors
Alan R. Griffith )
- --------------------------------------------------------------------------------
<PAGE>
Exhibit 25.13
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
---------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------
Cablevision Systems Corporation
(Exact name of obligor as specified in its charter)
Delaware 11-3415180
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1111 Stewart Avenue
Bethpage, New York 11714
(Address of principal executive offices) (Zip code)
---------------
Guarantee of Preferred Securities of CSC Capital III
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 30th day of March, 1999.
THE BANK OF NEW YORK
By: /s/ CHERYL L. LASER
---------------------------------
Name: CHERYL L. LASER
Title: ASSISTANT VICE PRESIDENT
<PAGE>
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ................. $ 3,951,273
Interest-bearing balances .......................................... 4,134,162
Securities:
Held-to-maturity securities ........................................ 932,468
Available-for-sale securities ...................................... 4,279,246
Federal funds sold and Securities purchased under
agreements to resell ............................................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income .......................................... 37,861,802
LESS: Allowance for loan and
lease losses .................................... 619,791
LESS: Allocated transfer risk
reserve ......................................... 3,572
Loans and leases, net of unearned income,
allowance, and reserve ........................................... 37,238,439
Trading Assets ........................................................ 1,551,556
Premises and fixed assets (including capitalized
leases) ............................................................ 684,181
Other real estate owned ............................................... 10,404
Investments in unconsolidated subsidiaries and
associated companies ............................................... 196,032
Customers' liability to this bank on acceptances
outstanding ........................................................ 895,160
Intangible assets ..................................................... 1,127,375
Other assets .......................................................... 1,915,742
------------
Total assets .......................................................... $ 60,077,664
============
LIABILITIES
Deposits:
In domestic offices ................................................ $ 27,020,578
Noninterest-bearing................................ 11,271,304
Interest-bearing................................... 15,749,274
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ........................................... 17,197,743
Noninterest-bearing................................ 103,007
Interest-bearing................................... 17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase ........................................... 1,761,170
Demand notes issued to the U.S.Treasury ............................... 125,423
Trading liabilities ................................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less ........................ 1,903,700
With remaining maturity of more than one year
through three years .............................................. 0
With remaining maturity of more than three years ................... 31,639
Bank's liability on acceptances executed and
outstanding ........................................................ 900,390
Subordinated notes and debentures ..................................... 1,308,000
Other liabilities ..................................................... 2,708,852
------------
Total liabilities ..................................................... 54,583,127
------------
EQUITY CAPITAL
Common stock .......................................................... 1,135,284
Surplus ............................................................... 764,443
Undivided profits and capital reserves ................................ 3,542,168
Net unrealized holding gains (losses) on
available-for-sale securities ...................................... 82,367
Cumulative foreign currency translation adjustments.................... (29,725)
------------
Total equity capital .................................................. 5,494,537
------------
Total liabilities and equity capital .................................. $ 60,077,664
============
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Gerald L. Hassell ) Directors
Alan R. Griffith )
- --------------------------------------------------------------------------------
