SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (date of earliest event reported) December 16, 1996
ADELPHIA COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 0-16014 23-2417713
(State or other (Commission File Number) (IRS Employer
jurisdiction of Identification No.)
incorporation)
5 West Third Street - PO Box 472, Coudersport, PA 16915
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (814) 274-9830
<PAGE>
Item 5. Other Events
Olympus Communications, L.P. ("Olympus") is a joint venture limited partnership
between a subsidiary of Adelphia Communications Corporation (the "Registrant")
and subsidiaries of FPL Group. Olympus Capital Corporation ("OCC") is a
wholly-owned subsidiary of Olympus. The Registrant is filing certain documents
with regard to Olympus and OCC.
Item 7. Financial Statements and Exhibits
Exhibit 10.01 Purchase Agreement, dated as of November 6, 1996, between
Olympus Communications, L.P., Olympus Capital Corporation and
Goldman, Sachs & Co. (the "Purchasers").
Exhibit 10.02 Indenture, dated as of November 12, 1996, between Olympus
Communications, L.P., Olympus Capital Corporation and Bank of
Montreal Trust Company.~
Exhibit 10.03 Form of Note (contained in Indenture filed as Exhibit 10.2).
Exhibit 10.04 Registration Rights Agreement, dated as of November 12,
1996, between Olympus Communications, L.P., Olympus Capital
Corporation and the Purchasers.
Exhibit 10.05 Term Note for $70,000,000 dated January 4, 1996 from
Leadership Acquisition Limited Partnership payable to
Fairbanks Communications, Inc. due on December 30, 1997.
Exhibit 10.06 Agreement of Guaranty and Suretyship dated January 4, 1996 by
Olympus Communications, L.P. regarding the Term Note
contained in Exhibit 10.5.
Exhibit 99.01 Certificate of Incorporation of Olympus Capital Corporation.
Exhibit 99.02 Bylaws of Olympus Capital Corporation.
Exhibit 99.03 Certificate of Limited Partnership of Olympus Communications,
L.P. together with all amendments thereto.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: December 16, 1996 ADELPHIA COMMUNICATIONS CORPORATION
(Registrant)
By: /s/Timothy J. Rigas
Timothy J. Rigas
Executive Vice President,
Treasurer and Chief
Financial Officer
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
~
10.01 Purchase Agreement, dated as of November 6, 1996,
between Olympus Communications, L.P., Olympus Capital
Corporation and Goldman, Sachs & Co. (the
"Purchasers").
10.02 Indenture, dated as of November 12, 1996, between
Olympus Communications, L.P., Olympus Capital
Corporation and Bank of Montreal Trust Company.
10.03 Form of Note (contained in Indenture filed as
Exhibit 10.2).
10.04 Registration Rights Agreement, dated as of
November 12, 1996, between Olympus Communications,
L.P., Olympus Capital Corporation and the Purchasers.
10.05 Term Note for $70,000,000 dated January 4,
1996 from Leadership Acquisition ~ Limited
Partnership payable to Fairbanks Communications,
Inc. due on December 30, 1997.
10.06 Agreement of Guaranty and Suretyship dated January 4,
1996 by Olympus Communications, L.P. regarding the
Term Note contained in Exhibit 10.5.
99.01 Certificate of Incorporation of Olympus Capital
Corporation.
99.02 Bylaws of Olympus Capital Corporation.
99.03 Certificate of Limited Partnership of Olympus,
together with all amendments thereto.
Exhibit 10.01
Olympus Communications, L.P.
Olympus Capital Corporation
105/8% Senior Notes
due November 15, 2006
Purchase Agreement
November 6, 1996
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Olympus Communications, L.P., a Delaware limited partnership (the
"Company"), and Olympus Capital Corporation, a Delaware corporation ("Olympus
Capital" and, together with the Company, the "Issuers"), propose, subject to the
terms and conditions stated herein, to issue and sell to Goldman, Sachs & Co.
(the "Purchasers") an aggregate of $200,000,000 principal amount of the 105/8%
Senior Notes due 2006 of the Issuers specified above (the "Securities"). As used
herein, the term "Subsidiaries" shall mean all subsidiaries of the Company
existing on the date hereof.
1. The Issuers, jointly and severally, represent and warrant to,
and agree with, the Purchasers that:
(a) A preliminary offering circular, dated October 15, 1996 (the
"Preliminary Offering Circular"), and an offering circular, dated November
6, 1996 (the "Offering Circular"), in each case including the
international supplement thereto, have been prepared in connection with
the offering of the Securities. Any reference to the Preliminary Offering
Circular or the Offering Circular, as the case may be, as amended or
supplemented, as of any specified date, shall be deemed to include any
Additional Issuer Information (as defined in Section 5(f)) furnished by
the Issuers prior to the completion of the distribution of the Securities.
The Preliminary Offering Circular or the Offering Circular, as the case
may be, and any amendments or supplements thereto did not and will not, as
of their respective dates, contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Issuers by the
Purchasers concerning the Purchasers expressly for use therein (the
"Purchaser Information"). Each of the Preliminary Offering Circular and
the Offering Circular, as of its date, contains all the information
specified in, and meeting the requirements of, Rule 144A(d)(4) under the
United States Securities Act of 1933, as amended (the "Act");
(b) None of the Issuers or the Subsidiaries has sustained since the
date of the latest audited financial statements included in the Offering
Circular any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Offering
Circular; and, since the respective dates as of which information is given
in the Offering Circular, there has not been any reduction in the
consolidated partner's equity or change in the capital stock, as
applicable (other than reductions in the ordinary course of business
consistent with prior periods), material increase in the total amount of
short-term debt (excluding trade payables) and long-term debt of the
Issuers or the Subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position, partners'
equity, shareholders' equity or results of operations of the Issuers and
the Subsidiaries, otherwise than as set forth or contemplated in the
Offering Circular;
(c) Each of the Issuers and the Subsidiaries has good and marketable
title in fee simple to all real property and good and marketable title to
all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Offering Circular or such as do not affect the value of such property and
do not interfere with the use made and proposed to be made of such
property by the Issuers and the Subsidiaries; and any real property and
buildings held under lease by the Issuers and the Subsidiaries are held by
them under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and proposed to
be made of such property and buildings by the Issuers and the
Subsidiaries; except in any case that would not have a material adverse
effect on the business, general affairs, management, financial position,
partners equity or shareholders' equity (other than reductions in the
ordinary course of business consistent with prior periods), results of
operations or prospects of the Company and its Subsidiaries, taken as a
whole a "Material Adverse Effect";
(d) Each of the Company and the Subsidiaries that are partnerships
has been duly formed and is validly existing as a partnership in good
standing under the laws of its state of formation, with full power and
authority (partnership and other) to own its properties and conduct its
business as described in the Offering Circular, and has been duly
qualified as a foreign partnership for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction except
where the failure to so qualify would not have a Material Adverse Effect;
(e) Each of Olympus Capital and the Subsidiaries that are
corporations has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its state of incorporation,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Offering Circular, and has been
duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in which
it owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or disability
by reason of the failure to be so qualified in any such jurisdiction
except where the failure to so qualify would not have a Material Adverse
Effect;
(f) Each of the Issuers and the Subsidiaries has the ownership or
authorized capitalizations, as the case may be, as set forth in the
Offering Circular, and all of the partnership interests of the Company and
the Subsidiaries that are partnerships and all of the issued shares of
capital stock of Olympus Capital and the Subsidiaries that are
corporations have been duly and validly authorized and issued and with
respect to shares of capital stock are fully paid and non-assessable; and
all of the partnership interests of the Subsidiaries disclosed in the
Offering Circular as being owned directly or indirectly by the Company and
all of the issued shares of capital stock of Olympus Capital and the
Subsidiaries that are corporations have been duly and validly authorized
and issued are fully paid and non-assessable and (except for director's
qualifying shares) are owned directly or indirectly by the Company free
and clear of all liens, encumbrances, equities or claims (other than liens
to secure indebtedness under credit facilities disclosed in the Offering
Circular); and ownership of the various interests and shares of the
Issuers and the Subsidiaries is as described in the Offering Circular;
(g) The Securities have been duly authorized and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Issuers entitled to the benefits provided by
the indenture to be dated as of November 12, 1996 (the "Indenture")
between the Issuers and Bank of Montreal Trust Company, as Trustee (the
"Trustee"), under which they are to be issued, which will be substantially
in the form previously delivered to the Purchasers; the Indenture has been
duly authorized by the Issuers and, when executed and delivered by the
Issuers and the Trustee, the Indenture will constitute a valid and legally
binding instrument, enforceable in accordance with its terms against the
Issuers, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Securities and the Indenture will conform to the descriptions thereof in
the Offering Circular and will be in substantially the form previously
delivered to the Purchasers;
(h) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale of
the Securities) will violate or result in a violation of Section 7 of the
Exchange Act, or any regulation promulgated thereunder, including, without
limitation, Regulations G, T, U, and X of the Board of Governors of the
Federal Reserve System;
(i) Prior to the date hereof, none of the Issuers or any of their
affiliates (other than the Purchasers or any person acting on their behalf
as to which the Issuers make no representation) has taken, directly or
indirectly, any action which is designed to or which has constituted or
which might have been expected to cause or result in stabilization or
manipulation of the price of any security of the Issuers in connection
with the offering of the Securities;
(j) The Registration Rights Agreement between the Issuers and the
Purchasers to be dated as of November 12, 1996 (the "Registration Rights
Agreement") has been duly authorized by the Issuers and, when executed and
delivered by the Issuers and the Purchasers, will constitute a valid and
legally binding instrument, enforceable against the Issuers in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Registration Rights Agreement will conform to the description thereof in
the Offering Circular and will be in substantially the form previously
delivered to the Purchasers;
(k) The issue and sale of the Securities and the compliance by the
Issuers with all of the provisions of the Securities, the Indenture, the
Registration Rights Agreement and this Agreement and the consummation of
the transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any material indenture, mortgage, deed of
trust, sale/leaseback agreement, loan agreement or other similar financing
agreement or instrument or other agreement or instrument (including,
without limitation, any license or franchise granted to the Issuers or a
Subsidiary by a local franchising governmental body) to which the Issuers
or any of the Subsidiaries is a party or by which the Issuers or any of
the Subsidiaries is bound or has rights under or to which any of the
property or assets of the Issuers or any of the Subsidiaries is subject,
nor will such action result in any violation of the provisions of the
Certificates of Limited Partnership or the partnership agreements of the
Company or the Subsidiaries that are partnerships, the Certificate of
Incorporation or By-laws of Olympus Capital or the Subsidiaries that are
corporations, or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Issuers or any
of the Subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Issuers of the transactions
contemplated by this Agreement, the Indenture or the Registration Rights
Agreement, other than (i) such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the
Securities by the Purchasers, (ii) the filing of a registration statement
by the Issuers with the United States Securities and Exchange Commission
(the "Commission") pursuant to the Act pursuant to Section 5(I) hereof,
and (iii) such other consents, approvals, authorizations, registrations or
qualifications as may be required under the Act, state or foreign
securities or Blue Sky laws in connection with the exchange, offer or
resale registration contemplated in the Offering Circular and described in
the Registration Rights Agreement in connection with the purchase and
distribution of the Securities by the Purchasers;
(l) None of the Issuers or the Subsidiaries is in violation of its
Certificate of Limited Partnership, partnership agreement, Certificate of
Incorporation or By-laws, as the case may be, or in default in the
performance or observance of any material obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of trust,
sale/leaseback agreement, loan agreement or other similar financing
agreement or instrument or other agreement or instrument (including,
without limitation, any license or franchise granted to the Issuers or a
Subsidiary by a local franchising governmental body) to which the Issuers
or a Subsidiary is a party or by which it or any of its properties may be
bound, except where such default would not have a Material Adverse Effect;
(m) The statements set forth in the Offering Circular under the
caption "Description of Senior Notes", insofar as they purport to
constitute a summary of the terms of the Securities, under the caption
"Certain United States Federal Tax Considerations for Non-United States
Holders", and under the caption "Offer and Resale", insofar as they
purport to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair in all material respects;
(n) When the Securities are issued and delivered pursuant to this
Agreement, the Securities will not be of the same class (within the
meaning of Rule 144 under the Act) as securities of the Issuers which are
listed on a national securities exchange registered under Section 6 of the
United States Securities Exchange Act of 1934, as amended (the "Exchange
Act") or quoted in a U.S. automated inter-dealer quotation system;
(o) None of the Issuers or the Subsidiaries is and, after giving
effect to the offering and sale of the Securities, will be an "investment
company", or an entity "controlled" by an "investment company", as such
terms are defined in the United States Investment Company Act of 1940, as
amended (the "Investment Company Act");
(p) None of the Issuers or any person acting on its or their behalf
(other than the Purchasers, as to which the Issuers make no representation
or warranty) has offered or sold the Securities by means of any general
solicitation or general advertising within the meaning of Rule 502(c)
under the Act or, with respect to Securities sold outside the United
States to non-U.S. persons (as defined in Rule 902 under the Act), by
means of any directed selling efforts within the meaning of Rule 902 under
the Act and the Issuers, any affiliate of the Issuers and any person
acting on its or their behalf has complied with and will implement the
"offering restriction" within the meaning of such Rule 902;
(q) Within the preceding six months, none of the Issuers or any other
person acting on behalf of the Issuers (other than the Purchasers, as to
which the Issuers make no representation or warranty) has offered or sold
to any person any Securities, or any securities of the same or a similar
class as the Securities, other than Securities offered or sold to the
Purchasers hereunder. The Issuers will take reasonable precautions
designed to insure that any offer or sale, direct or indirect, in the
United States or to any U.S. person (as defined in Rule 902 under the Act)
of any Securities or any substantially similar security issued by the
Issuers, within six months subsequent to the date on which the
distribution of the Securities has been completed (as notified by the
Purchasers), is made under restrictions and other circumstances reasonably
designed not to affect the status of the offer and sale of the Securities
in the United States and to U.S. persons contemplated by this Agreement as
transactions exempt from the registration provisions of the Act;
(r) None of the Issuers or any of their affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes;
(s) Other than as set forth in the Offering Circular (including those
matters referred to therein relating to general rulemakings and similar
matters relating generally to the cable television industry), there are no
legal or governmental proceedings pending to which the Issuers or any of
the Subsidiaries is a party or of which any property of the Issuers or any
of the Subsidiaries is the subject which, if determined adversely to the
Issuers or any of the Subsidiaries, would individually or in the aggregate
have a Material Adverse Effect and, to the best of the Issuers' knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or by others; and except with respect to general rulemakings
and similar matters relating generally to the cable television industry,
during the time the Systems (as defined below) have been owned by the
Issuers or a Subsidiary (i) there has been no adverse judgment, order, or
decree issued by the United States Federal Communications Commission (the
"FCC") relating to any of the Systems that has not been disclosed in the
Offering Circular that would be required to be disclosed in a public
offering registered under the Act; (ii) there are no actions, suits,
proceedings, inquiries or investigations by the FCC pending or threatened
in writing against or affecting the Issuers, any Subsidiaries or any
System; and (iii) to the Issuers' knowledge, after due inquiry, there is
no reasonable basis for any such action, suit, proceeding or
investigation;
(t) Deloitte & Touche LLP, who have reported on certain financial
statements of the Issuers, Ernst & Young LLP, who have reported on
financial statements of WB Cable Associates, Ltd. and Geo. S. Olive & Co.,
LLC, who have reported on financial statements of Leadership Cablevision,
a Division of Fairbanks Communications, Inc., are each independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(u) This Agreement has been duly authorized, executed and delivered
by the Issuers;
(v) Except for matters covered by paragraph (x) below or with respect
to matters that would not individually or in the aggregate have a Material
Adverse Effect, (i) the Issuers and the Subsidiaries have made all
filings, recordings and registrations with, and possess all validations or
exemptions, approvals, orders, authorizations, consents, licenses,
certificates and permits from, the FCC, applicable public utilities and
other federal, state and local regulatory or governmental bodies and
authorities or any subdivision thereof, including, without limitation,
cable television franchises, pole attachment agreements, and cable antenna
relay service, broadcast auxiliary, earth station, business radio,
microwave or special safety radio service licenses issued by the FCC
(collectively, the "Authorizations") necessary or appropriate to own,
operate and construct the cable communication systems owned by them (the
"Systems") or otherwise for the operation of their businesses and are not
in violation thereof; (ii) all such Authorizations are in full force and
effect, and no event has occurred that permits, or after notice or lapse
of time could permit, the revocation, termination or modification of any
Authorization which is necessary or appropriate to own, operate and
construct the Systems or otherwise for the operation of any such business;
(iii) none of the Issuers or any of the Subsidiaries is in violation of
any duty or obligation required by the United States Communications Act of
1934, as amended (the "Communications Act"), or any FCC rule or regulation
applicable to the operation of any portion of any of the Systems; (iv)
none of the Issuers or any of the Subsidiaries is in violation of any duty
or obligation required by Florida or local laws, or local rules or
regulations applicable to the operation of any portion of any of the
Systems; (v) there is not pending or, to the best knowledge of the Issuers
or any of the Subsidiaries, threatened, any action by the FCC or state or
local regulatory authority to modify, revoke, cancel, suspend or refuse to
renew any Authorization; (vi) other than as described in the Offering
Circular, there is not now issued or outstanding or, to the best knowledge
of the Issuers or any of the Subsidiaries, threatened, any notice of any
hearing, material violation or material complaint against the Issuers or
any of the Subsidiaries with respect to the operation of any portion of
the Systems and none of the Issuers or the Subsidiaries has any knowledge
that any Person intends to contest renewal of any material Authorization;
(w) (i) (A) The Issuers and the Subsidiaries have entered into, or
have rights under, all required programming agreements (including, without
limitation, all non-broadcast affiliation agreements under which the
Issuers and the Subsidiaries are accorded retransmission rights relating
to programming that the Systems provide to their customers) that are
material to the conduct of their business as described in the Offering
Circular; and (B) all such material agreements are in full force and
effect and none of the Issuers, any of the Subsidiaries or any of its
affiliates has received any written notice of revocation or material
modifications of such material agreements; and (ii)(A) either one of the
Issuers or a Subsidiary has entered into agreements with the television
stations that have notified one of the Issuers or the Subsidiaries that
such station's respective consent is required to carry such stations on
the Systems or has ceased carrying such stations; (B) all such agreements
grant the Issuers or one of the Subsidiaries retransmission consent in
exchange for various non-cash consideration; and (C) all such agreements
are in full force and effect and are not subject to revocation (except in
the case of material breach by the Issuers or the Subsidiaries) or
material modifications, and no event has occurred that permits, or after
notice or lapse of time could permit, the revocation, termination or
material modification of any such agreement, except where the failure of
such agreements to be in full force and effect or such revocation would
not, in either case, have a Material Adverse Effect;
(x) Except for matters that would not individually or in the
aggregate have a Material Adverse Effect, (i) all registration statements
and all other documents (including but not limited to annual reports)
required by the FCC in connection with the operation of the Systems have
been filed with the FCC; (ii) all frequencies within the restricted
aeronautical and navigational bands (i.e., 108-136 MHz and 225-400 MHz)
which are currently being used in connection with the operation of the
Systems have been authorized for such use by the FCC; (iii) each of the
Systems subject to Equal Employment Opportunity Commission ("EEO")
compliance certification by the FCC has been certified by the FCC for
annual EEO compliance during the time such Systems have been owned by the
Issuers or the Subsidiaries; and (iv) all towers associated with the
Systems are in compliance with the rules and regulations of the United
States Federal Aviation Administration;
(y) Except for matters that would not individually or in the
aggregate have a Material Adverse Effect, none of the Issuers or any of
the Subsidiaries is in breach or violation of, or in default under, any of
the terms, conditions or provisions of the Communications Act or the
rules, regulations or policies of the FCC thereunder;
(z) (i) Except for matters that would not individually or in the
aggregate have a Material Adverse Effect, all statements of accounts and
any other filings that are required under Section 111 of the United States
Copyright Act of 1976, as amended, in connection with the retransmission
of any broadcast television and radio signals on the Systems have been
timely filed with the United States Copyright Office and indicated royalty
payments have been made for each System for each accounting period during
which such Systems have been owned by the Issuers or the Subsidiaries;
(ii) none of the Issuers, any of the Subsidiaries or any System has
received any inquiry or request from the United States Copyright Office or
from any other party challenging or questioning any such statements of
account or royalty payments; and (iii) no claim of copyright infringement
has been made or threatened in writing against the Issuers, any of the
Subsidiaries or any System;
(aa)Neither the execution and delivery of this Agreement, the
Indenture or the Registration Rights Agreement, nor the consummation of
the transactions contemplated hereby and thereby or by the Offering
Circular under "Use of Proceeds", nor compliance with the terms,
conditions and provisions thereof by the Issuers, will conflict with the
Communications Act or the rules, regulations or policies of the FCC
thereunder, or will cause any suspension, revocation, impairment,
forfeiture, nonrenewal or termination of any material license, permit,
franchise, certificate, consent, authorization, designation, declaration,
filing, registration or qualification;
(bb)Neither the execution and delivery of this Agreement, the
Indenture or the Registration Rights Agreement, nor the execution,
delivery, offer, issuance and sale of the Securities, nor compliance with
the terms, conditions and provisions thereof by the Issuers, requires any
license, permit, franchise, certificate, consent, authorization,
designation, declaration, filing, registration or qualification by or with
the FCC;
(cc)None of the Issuers or the Subsidiaries or any of their
respective officers or directors or, to the best knowledge of the Issuers,
any person acting on its or their behalf, has engaged or will engage in
any directed selling efforts within the meaning of Regulation S with
respect to the Securities, the Issuers and the Subsidiaries and its or
their affiliates and, to the best knowledge of the Issuers, all persons
acting on its or their behalf have complied with and will comply with the
offering restrictions requirements of Regulation S in connection with the
offering of the Securities outside the United States;
(dd)There is no "substantial U.S. market interest" as defined in
Rule 902(n) of Regulation S for the Securities or any security of the
same class as the Securities; and
(ee)The sale of the Securities in offshore transactions pursuant to
Regulation S is not part of a plan or scheme to evade the registration
provisions of the Act.
2. Subject to the terms and conditions herein set forth, the Issuers agree
to issue and sell to the Purchasers, and the Purchasers agree to purchase from
the Issuers, at a purchase price of 97.75% of the principal amount thereof, plus
accrued interest, if any, from November 12, 1996 to the Time of Delivery
hereunder, the Securities.
3. Upon the authorization by the Purchasers of the release of the
Securities, the Purchasers propose to offer the Securities for sale upon the
terms and conditions set forth in this Agreement and the Offering Circular and
the Purchasers hereby represent and warrant to, and agree with the Issuers that:
(a) It will offer and sell the Securities only to: (i) persons who it
reasonably believes are "qualified institutional buyers" ("QIBs") within
the meaning of Rule 144A under the Act in transactions meeting the
requirements of Rule 144A, (ii) institutions which it reasonably believes
are accredited investors ("Institutional Accredited Investors") within the
meaning of Rule 501 under the Act or, (iii) upon the terms and conditions
set forth in Annex I to this Agreement;
(b) It is an Institutional Accredited Investor; and
(c) It will not offer or sell the Securities by any form of general
solicitation or general advertising, including but not limited to the
methods described in Rule 502(c) under the Act.
4. (a) The Securities to be purchased by the Purchasers hereunder will be
represented by one or more definitive global Securities in book-entry form which
will be deposited by or on behalf of the Issuers with The Depository Trust
Company ("DTC") or its designated custodian. The Issuers will deliver the
Securities to the Purchasers, against payment by or on behalf of the Purchasers
of the purchase price therefor by certified or official bank check or checks,
payable to the order of the Issuers in Federal (same day) funds, by causing DTC
to credit the Securities to the account of Goldman, Sachs & Co. at DTC. The
Issuers will cause the certificates representing the Securities to be made
available to Goldman, Sachs & Co. for checking at least twenty-four hours prior
to the Time of Delivery (as defined below) at the office of DTC or its
designated custodian (the "Designated Office"). The time and date of such
delivery and payment shall be 9:30 a.m., New York City time, on November 12,
1996 or such other time and date as Goldman, Sachs & Co. and the Issuers may
agree upon in writing. Such time and date are herein called the "Time of
Delivery".
(b) The documents to be delivered at the Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross-receipt
for the Securities and any additional documents requested by the Purchasers
pursuant to Section 7(j) hereof, will be delivered at such time and date at the
offices of Latham & Watkins, 885 Third Avenue, Suite 1000, New York, New York
10022 (the "Closing Location"), and the Securities will be delivered at the
Designated Office, all at the Time of Delivery. A meeting will be held at the
Closing Location at 3:00 p.m., New York City time, on the New York Business Day
next preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
5. The Issuers, jointly and severally, agree with the Purchasers:
(a) To prepare the Offering Circular in a form approved by the
Purchasers; to make no amendment or any supplement to the Offering
Circular which shall be disapproved by the Purchasers promptly after
reasonable notice thereof; and to furnish the Purchasers with copies
thereof;
(b) Promptly from time to time to take such action as the Purchasers
may reasonably request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions as the Purchasers may
request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Securities, provided that in
connection therewith the Issuers shall not be required to qualify to
transact business or to file a general consent to service of process in
any jurisdiction;
(c) To furnish the Purchasers with two copies of the Offering
Circular and each amendment and supplement thereto signed by an authorized
officer of the Issuers with the Independent Auditors' reports in the
Offering Circular, and any amendment or supplement containing amendments
to the financial statements covered by such reports, signed by the
accountants, and additional copies thereof in such amounts as the
Purchasers may from time to time reasonably request, if, at any time prior
to the expiration of nine months after the date of the Offering Circular,
any event shall have occurred as a result of which the Offering Circular
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made when such Offering Circular is delivered, not misleading,
or, if for any other reason it shall be necessary or desirable during such
same period to amend or supplement the Offering Circular, to notify the
Purchasers and upon the Purchasers' request to prepare and furnish without
charge to the Purchasers and to any dealer in securities as many copies as
the Purchasers may from time to time reasonably request of an amended
Offering Circular or a supplement to the Offering Circular which will
correct such statement or omission or effect such compliance;
(d) During the period beginning from the date hereof and continuing
until the date six months after the Time of Delivery, not to offer, sell
contract to sell or otherwise dispose of, except as provided hereunder any
securities of the Issuers that are substantially similar to the
Securities, other than the Exchange Offer pursuant to the Registration
Rights Agreement;
(e) Not to be or become, at any time prior to the expiration of three
years after the Time of Delivery, an open-end investment company, unit
investment trust, closed-end investment company or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act;
(f) At any time when the Issuers are not subject to Section 13 or
15(d) of the Exchange Act, for the benefit of holders from time to time of
Securities, to furnish at the Issuers' expense, upon request, to holders
of Securities and prospective purchasers of Securities information (the
"Additional Issuer Information") satisfying the requirements of subsection
(d)(4)(i) of Rule 144A under the Act;
(g) If requested by the Purchasers, to use its best efforts to cause
such Designated Securities to be eligible for the PORTAL trading system of
the National Association of Securities Dealers, Inc.;
(h) To file with the Commission, not later than 15 days after the
Time of Delivery, five copies of a notice on Form D under the Act (one of
which will be manually signed by a person duly authorized by the Issuers);
to otherwise comply with the requirements of Rule 503 under the Act; and
to furnish promptly to you evidence of each such required timely filing
(including a copy thereof);
(i) To furnish to the holders of the Securities as soon as
practicable after the end of each fiscal year an annual report (including
a balance sheet and statements of income, partners' equity, stockholders'
equity, as appropriate, and cash flows of the Issuers and the Subsidiaries
certified by independent public accountants) and, as soon as practicable
after the end of each of the first three quarters of each fiscal year
(beginning with the fiscal quarter ending after the date of the Offering
Circular), consolidated summary financial information of the Issuers and
Subsidiaries for such quarter in reasonable detail;
(j) During a period of five years from the date of the Offering
Circular, to furnish to the Purchasers copies of all reports or other
communications (financial or other) furnished to partners or stockholders
of the Issuers, as appropriate, that are publicly available and to deliver
to the Purchasers (i) as soon as they are available, copies of any reports
and financial statements furnished to or filed with the Commission or any
securities exchange on which the Securities or any class of securities of
the Issuers and the Subsidiaries are listed; and (ii) such additional
information concerning the business and financial condition of the Issuers
and the Subsidiaries as the Purchasers may from time to time reasonably
request (such financial statements to be on a consolidated basis to the
extent the accounts of the Issuers and the Subsidiaries are consolidated
in reports furnished to its partners or stockholders, as appropriate,
generally or to the Commission);
(k) During the period of three years after the Time of Delivery, the
Issuers will not, and will not permit any of its "affiliates" (as defined
in Rule 144 under the Act) to, resell any of the Securities which
constitute "restricted securities" under Rule 144 that have been
reacquired by any of them;
(l) The Issuers shall file on or prior to 90 days after the Time of
Delivery, and use their best efforts to cause to be declared or become
effective under the Act, a registration statement on Form S-4 providing
for the registration of another series of debt securities of the Issuers,
with terms identical to the Securities (the "Exchange Securities"), and
the exchange of the Securities for the Exchange Securities, all in a
manner which will permit persons who acquire the Exchange Securities to
resell the Exchange Securities pursuant to Section 4(1) of the Act; and
(m) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the
Offering Circular under the caption "Use of Proceeds".
6. The Issuers, jointly and severally, covenant and agree with the
Purchasers that the Issuers will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Issuers' counsel and accountants in
connection with the issue of the Securities and all other expenses in connection
with the preparation, printing and filing of the Preliminary Offering Circular
and the Offering Circular and any amendments and supplements thereto and the
mailing and delivering of copies thereof to the Purchasers and dealers; (ii) the
cost of printing or producing this Agreement, the Indenture, the Registration
Rights Agreement, the Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities, (iii) all expenses
in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 5(b) hereof, including the
fees and disbursements of counsel for the Purchasers in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) the cost of preparing the Securities, (vi) the fees and expenses of the
Trustee and any agent of the Trustee and the fees and disbursements of counsel
for the Trustee in connection with the Indenture and the Securities; (vii) any
cost incurred in connection with the designation of the Securities for trading
in PORTAL and (viii) all other costs and expenses incident to the performance of
its obligations hereunder which are not otherwise specifically provided for in
this Section. It is understood, however, that, except as provided in this
Section, and Sections 8 and 10 hereof, the Purchasers will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Purchasers hereunder shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Issuers herein are, at and as of the Time of Delivery, true
and correct, the condition that the Issuers shall have performed all of their
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) Latham & Watkins, counsel for the Purchasers, shall have
furnished to you such opinion or opinions, dated the Time of Delivery,
with respect to such matters as you may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(b) Buchanan Ingersoll Professional Corporation, counsel for the
Issuers, shall have furnished to you their written opinion, dated the Time
of Delivery, in form and substance satisfactory to you, to the effect
that:
(i) Each of the Company and the Subsidiaries that are limited
partnerships has been duly formed and is validly existing as a limited
partnership in good standing under the laws of its state of formation,
with full partnership power and authority to own its properties and
conduct its business as described in the Offering Circular;
(ii) Each of Olympus Capital and the Subsidiaries that are
corporations has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of its formation
with full corporate power and authority to own its properties and conduct
its business as described in the Offering Circular;
(iii) Each of the Issuers and the Subsidiaries has the
ownership or authorized capitalization, as the case may be, as set forth
in the Offering Circular, and all of the partnership interests of the
Company and the Subsidiaries that are partnerships and all of the issued
shares of capital stock of Olympus Capital and the Subsidiaries that are
corporations have been duly and validly authorized and issued and with
respect to shares of capital stock are fully paid and non-assessable;
(iv) The Company should be treated as a partnership and not a
corporation for federal income tax purposes and the Securities should
constitute debt and not equity for federal income tax purposes;
(v) Each Subsidiary of the Company listed on Schedule B hereto
is owned of record by the Company (except for minority interests indicated
in the Offering Circular), and to the best of such counsel's knowledge
owned free and clear of security interests, liens or other encumbrances
(other than liens to secure indebtedness under credit facilities disclosed
in the Offering Circular) (such counsel being entitled to rely in respect
of the opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the Company or
its Subsidiaries, provided that such counsel shall state that they believe
that both the Purchasers and they are justified in relying upon such
opinions and certificates);
(vi) This Agreement has been duly authorized, executed
and delivered by the Issuers;
(vii) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Issuers;
(viii) The Securities have been duly authorized and, when
issued and delivered pursuant to this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid
and legally binding obligations of the Issuers entitled to the benefits
provided by the Indenture and enforceable against the Issuers in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and the Securities and the Indenture conform in all
material respects to the descriptions thereof in the Offering Circular;
(ix) The Indenture has been duly authorized, executed and
delivered by the Issuers and will constitute a valid and legally binding
instrument, enforceable in accordance with its terms against the Issuers,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(x) The Registration Rights Agreement has been duly authorized
by the Issuers and, when executed and delivered by the parties thereto,
will constitute a valid and legally binding instrument, enforceable in
accordance with its terms against the Issuers, subject, as to enforcement,
to bankruptcy, insolvency, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights, to
general equity principles; and the Registration Rights Agreement will
conform in all material respects to the description thereof in the
Offering Circular;
(xi) The issue and sale of the Securities and the compliance by
the Issuers with all of the provisions of the Securities, the Indenture,
the Registration Rights Agreement and this Agreement and the consummation
of the transactions herein and therein contemplated will not conflict with
or result in a breach or violation of any of the terms or provisions of,
or constitute a default under the agreements listed on Schedule A hereto,
nor will such actions result in any violation of the provisions of the
Certificate of Limited Partnership or the partnership agreements or the
Certificate of Incorporation and By-laws of the Issuers and the
Subsidiaries, as appropriate, or any statute or, to the best of our
knowledge, any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Issuers or any of the
Subsidiaries or any of their properties;
(xii) The statements set forth in the Offering Circular under
the caption "Description of Senior Notes", insofar as they purport to
constitute a summary of the terms of the Securities, under the caption
"Certain United States Federal Tax Considerations for Non-United States
Holders" and under the caption "Offer and Resale", insofar as they purport
to describe the provisions of the laws and documents referred to therein,
are accurate, complete and fair in all material respects;
(xiii) No registration of the Securities under the Act, and no
qualification of an indenture under the United States Trust Indenture Act
of 1939 with respect thereto, is required for the offer, sale and initial
resale of the Securities by the Purchasers in the manner contemplated by
this Agreement;
(xiv) Although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Offering Circular, except for those referred to in the opinion in
subsection (xii) of this Section 7(b), no facts have come to their
attention which have given them a reason to believe that the Offering
Circular or any further amendment thereto made by the Issuers prior to
such Time of Delivery (other than the financial statements (including the
notes thereto) and related schedules therein and financial data, as to
which such counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading
or that, as of such Time of Delivery, the Offering Circular or any further
amendment or supplement thereto made by the Issuers prior to such Time of
Delivery (other than the financial statements (including the notes
thereto) and related schedules therein and financial data, as to which
such counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; and
(xv) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act.
(c) Fleishman and Walsh, L.L.P., special regulatory counsel for the
Issuers, shall have furnished to you their written opinion, dated the Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) Except as set forth in the Offering Circular, each of the
Issuers and the Subsidiaries has all of the licenses, permits and
authorizations, if any, required by the FCC for the provision of cable
television service (as such counsel understands service to be provided),
where the failure to obtain or hold such license, permit or authorization
would reasonably be expected to have a Material Adverse Effect;
(ii) To the best of such counsel's knowledge after due inquiry,
each of the Issuers and the Subsidiaries has filed all current and routine
filings, reports, applications and submissions required under the
Communications Act of 1934, as amended, and the rules and regulations of
the FCC ;
(iii) To the best of such counsel's knowledge after due
inquiry, all relevant Statements of Account required by Section 111 of the
Copyright Act, as amended, and royalty payments accompanying said
statements of account have been submitted to the Licensing Division of the
United States Copyright Office with respect to the Systems of the Issuers
and the Subsidiaries. Such counsel may state that it did not prepare the
information or review the accuracy of the amounts contained therein and
express no opinion with respect thereto and that its opinion is expressly
limited to the determination of whether such statements of Account were
filed and the stated royalty fees paid for the applicable periods. To the
best of such counsel's knowledge, after due inquiry, there have been no
inquiries received from the United States Copyright Office or any other
party which would reasonably be expected to have a Material Adverse Effect
or which question the Statements of Account or any copyright payments made
by the Issuers and the Subsidiaries with respect to the Systems of the
Issuers and the Subsidiaries, and there is no claim, action, or demand for
copyright infringement or for non-payment of royalties pending or
threatened against the Issuers and the Subsidiaries with respect to the
Systems;
(iv) There are no actions, suits or proceedings pending or, to
the best of such counsel's knowledge, threatened by or before any court or
governmental body within the United States or elsewhere against or
affecting the Issuers or the Subsidiaries, or the business of the Issuers
or the Subsidiaries, in which an unfavorable ruling, decision or finding
would reasonably be expected to have a Material Adverse Effect;
(v) In counsel's opinion, the statements in the Offering
Circular under the headings "Risk Factors - Regulation in the
Telecommunications Industry," "Risk Factors - Competition," "Risk Factors
Introduction of New Services," "Business," and "Legislation and
Regulation" insofar as they purport to describe the provisions of the laws
referred to therein, are accurate, complete and fair in all material
respects;
(vi) The Company has the consents, approvals and authorizations
of the FCC, if any, required for the consummation of the transactions
contemplated in the Purchase Agreement where the failure to obtain the
consents, approvals, authorizations, licenses, certificates, permits or
orders would reasonably be expected to have a Material Adverse Effect; and
(vii) Neither the execution and delivery of the Purchase
Agreement nor the offering of the Senior Notes contemplated thereby will
conflict with or result in a violation of any order or regulation of the
FCC applicable to the Issuers and the Subsidiaries, the conflict with or
the violation of which would reasonably be expected to have a Material
Adverse Effect. Such counsel may qualify the foregoing with respect to
security interests in FCC licenses and the requirement for FCC approval
prior to any assignment or transfer of control of any FCC license.
(d) Randall D. Fisher, general counsel of Adelphia Communications
Corporation, a Delaware corporation, shall have furnished to you his
written opinion, dated the Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) Except as set forth in the Offering Circular, each of the
Issuers and the Subsidiaries has all of the licenses, permits, franchises
and authorizations, if any, required by the relevant governmental
authorities of the State of Florida and/or its political subdivisions for
the provision of cable television service (as such counsel understands
service to be provided which may be based on a certificate of an officer
of the Issuers, provided that such counsel shall state that they believe
that both the Purchasers and they are justified in relying on such
certificate), where the failure to obtain or hold such license, permit,
franchise or authorization would have a Material Adverse Effect on the
Issuers and the Subsidiaries;
(ii) To the best of such counsel's knowledge after due inquiry,
each of the Issuers and the Subsidiaries has made all filings, reports,
applications and submissions required by the laws and ordinances relating
to cable services of the State of Florida, and the ordinances of the
state's political subdivisions relating thereto, and the rules and
regulations promulgated therewith;
(iii) Each of the Issuers and the Subsidiaries has the
consents, approvals, authorizations, licenses, certificates, permits, or
orders of any governmental authorities of the State of Florida and its
political subdivisions, if any, required for the consummations of the
transactions contemplated in the Purchase Agreement where the failure to
obtain the consents, approvals, authorizations, licenses, certificates,
permits or orders would have a Material Adverse Effect on the Issuers and
the Subsidiaries;
(iv) There are no actions, suits or proceedings pending or, to
the best of such counsel's knowledge, threatened by or before any court or
governmental body within the State of Florida against or affecting any of
the Issuers or the Subsidiaries, or the business of the Issuers and the
Subsidiaries;
(v) The statements in the Offering Circular under the headings
"Risk Factors - Regulation in the Telecommunications Industry," "Risk
Factors - Competition," Risk Factors - Introduction to New Services,"
"Business," and "Legislation and Regulation", insofar as they relate to
the Issuer's and the Subsidiaries operations in the State of Florida and
purport to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair in all material respects; and
(vi) Neither the execution and delivery of the Purchase
Agreement nor the offering of the Senior Notes contemplated thereby will
conflict with or result in a violation of any order or regulation of the
State of Florida or its political subdivisions applicable to the Issuers
and the Subsidiaries, the conflict with or the violation of which would
have a Material Adverse Effect on the Issuers and the Subsidiaries.
(e) Colin Higgin, deputy general counsel to the Issuers, shall have
furnished to you his written opinion, dated the Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) None of the Issuers or the Subsidiaries is in violation of
its Certificate of Limited partnership, partnership agreement, Certificate
of Incorporation or by-laws, as applicable, or in default in the
performance or observance of any material obligation, covenant or
condition contained in any partnership agreement, indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument to
which it is a party or by which it or any of its properties may be bound;
(ii) Each of the Issuers and the Subsidiaries has been duly
qualified as a foreign partnership or corporation, as the case may be, for
the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no material
liability or disability by reason of the failure to be so qualified in any
such jurisdiction, except where the failure to so qualify would not have a
Material Adverse Effect (such counsel being entitled to rely in respect of
the opinion in this clause upon opinions of local counsel and in respect
of matters of fact upon certificates of officers of the Issuers, provided
that such counsel shall state that they believe that both the Purchasers
and they are justified in relying upon such opinions and certificates);
(iii) Each Subsidiary of the Company listed on Schedule C
hereto is owned of record by the Company as indicated on Schedule C and to
the best of such counsel's knowledge owned free and clear of all security
interests, liens or other encumbrances (other than liens to secure
indebtedness under credit facilities disclosed in the Offering Circular)
(such counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Company or its Subsidiaries, provided
that such counsel shall state that they believe that both the Purchasers
and they are justified in relying upon such opinions and certificates);
(iv) To the best of such counsel's knowledge and other than as
set forth in the Offering Circular, there are no legal or governmental
proceedings pending to which the Issuers or any of the Subsidiaries is a
party or of which any property of the Issuers or any of the Subsidiaries
is the subject which, if determined adversely to the Issuers or any of the
Subsidiaries, would individually or in the aggregate have a Material
Adverse Effect on the current or future consolidated financial position,
partners' equity, shareholder's equity or results of operations of the
Issuers and the Subsidiaries; and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(v) The issue and sale of the Securities and the compliance by
the Issuers with all of the provisions of the Securities, the Indenture,
the Registration Rights Agreement and this Agreement and the consummation
of the transactions herein and therein contemplated will not conflict with
or result in a breach or violation of any of the terms or provisions of,
or constitute a default under any material indenture, mortgage, deed of
trust, sale/leaseback transaction, loan agreement or other similar
financing agreement, or instrument or other agreement or instrument
(including, without limitation, any license or franchise granted to the
Issuers or a Subsidiary by a local franchising governmental body) to which
the Issuer or any of the Subsidiaries is a party or by which the Issuer or
any of the Subsidiaries is bound or to which any of the property or assets
of the Issuer or any of the Subsidiaries is subject, nor will such actions
result in any violation of the provisions of the Certificate of Limited
Partnership or the partnership agreements or the Certificate of
Incorporation and By-laws of the Issuers and the Subsidiaries, as
appropriate, or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Issuers or any
of the Subsidiaries or any of their properties; and
(vi) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Securities or the consummation
by the Issuers of the transactions contemplated by this Agreement, the
Indenture or the Registration Rights Agreement, except such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Purchasers.
(f) On the date of the Offering Circular prior to the execution of
this Agreement and also at the Time of Delivery, Deloitte & Touche LLC,
Ernst & Young LLP and Geo. S. Olive & Co., LLC, each shall have furnished
to you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, to the effect set
forth in Annex II, hereto;
(g) (i) None of the Issuers or the Subsidiaries has sustained since
the date of the latest audited financial statements included in the
Offering Circular any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Offering
Circular; and (ii) since the respective dates as of which information is
given in the Offering Circular, there has not been any reduction in the
consolidated partners' equity or change in capital stock, as applicable,
increase in the total amount of short-term debt (excluding trade payables)
and long-term debt of the Issuers or the Subsidiaries or any change, or
any development involving a prospective change, in or affecting the
general affairs, management, financial position, partners' equity,
stockholders' equity or results of operations of the Issuers or the
Subsidiaries in each case, otherwise than as set forth or contemplated in
the Offering Circular, the effect of which, in any such case described in
Clause (i) or (ii), is in the judgment of the Purchasers so material and
adverse as to make it impracticable or inadvisable to proceed with the
offering or the delivery of the Securities on the terms and in the manner
contemplated in this Agreement and in the Offering Circular;
(h) On or after the date hereof there shall not have occurred (i) any
downgrading in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act,
(ii) any such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities, (iii) a general moratorium on
commercial banking activities shall be declared by either Federal or New
York State authorities; (iv) any outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in
this clause (iv) in the judgment of the Purchasers makes it impracticable
or inadvisable to proceed with the offering or the delivery of the
Securities on the terms and in the manner contemplated in the Offering
Circular; or (v) any material adverse change in the existing financial,
political or economic conditions in the United States or elsewhere which,
in the judgment of the Purchasers, would materially and adversely affect
the financial markets or the market for the Securities and other debt
securities;
(i) The Securities have been designated for trading on PORTAL; and
(j) Each of the Issuers shall have furnished or caused to be
furnished to the Purchasers at the Time of Delivery certificates of
officers of the Issuers satisfactory to the Purchasers as to the accuracy
of the representations and warranties of the Issuers herein at and as of
such Time of Delivery, as to the performance by each of the Issuers of all
of its obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (g) of this
Section and as to such other matters as the Purchasers may reasonably
request.
8. (a) The Issuers jointly and severally, will indemnify and hold
harmless the Purchasers against any losses, claims, damages or
liabilities, joint or several, to which the Purchasers may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Offering Circular or the Offering Circular
(including the international supplement thereto), and any amendments or
supplements thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary to make the
statements therein not misleading, and will reimburse the Purchasers for
any legal or other expenses reasonably incurred by the Purchasers in
connection with investigating or defending any such action or claim as
such expenses are incurred; provided, however, that the Issuers shall not
be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Offering Circular or the Offering Circular or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Issuers by the Purchasers expressly for use therein.
(b) The Purchasers will indemnify and hold harmless the Issuers
against any losses, claims, damages or liabilities to which the Issuers
may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Offering Circular or the
Offering Circular (including the international supplement thereto), or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact or necessary
to make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Offering Circular or the Offering Circular (including the international
supplement thereto) or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Issuers by the
Purchasers expressly for use therein; and will reimburse the Issuers for
any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under
such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under
such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or claim
and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Issuers on
the one hand and the Purchasers on the other from the offering of the
Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such amount paid
or payable by such indemnified party in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of
the Issuers on the one hand and the Purchasers on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by
the Issuers on the one hand and the Purchasers on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Issuers bear to the
total underwriting discounts and commissions received by the Purchasers,
in each case as set forth in the Offering Circular. The relative fault
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Issuers on the one hand or the Purchasers on the other and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Issuers and the
Purchasers agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation or
by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), the Purchasers shall not be required to
contribute any amount in excess of the amount by which the total price at
which the Securities underwritten by it and distributed to investors were
offered to investors exceeds the amount of any damages which the
Purchasers have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
(e) The obligations of the Issuers under this Section 8 shall be in
addition to any liability which the Issuers may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls the Purchasers within the meaning of the Act; and the obligations
of the Purchasers under this Section 8 shall be in addition to any
liability which the Purchasers may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the Issuers
and to each person, if any, who controls the Issuers within the meaning of
the Act.
9. The respective indemnities, agreements, representations, warranties and
other statements of each of the Issuers and the Purchasers, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of the Purchasers or any controlling person of the Purchasers, the Issuers, or
the Subsidiaries or any officer or director or controlling person of the Issuers
or the Subsidiaries, and shall survive delivery of and payment for the
Securities.
10. If this Agreement shall be terminated or for any reason, the
Securities are not delivered by or on behalf of the Issuers as provided herein,
the Issuers will reimburse the Purchasers for all out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred by the
Purchasers in making preparations for the purchase, sale and delivery of the
Securities, but the Issuers shall then be under no further liability to the
Purchasers except as provided in Sections 6 and 8 hereof.
11. All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Purchasers shall be delivered or sent by mail, telex or
facsimile transmission to the Purchasers at 85 Broad Street, New York, New York
10004, Attention: Registration Department; and if to the Issuers shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Issuers set forth in the Offering Circular, Attention: Secretary; provided,
however, that any notice to the Purchasers pursuant to Section 8(c) hereof shall
be delivered or sent by mail, telex or facsimile transmission to the Purchasers
at its address above and any such statements, requests, notices or agreements
shall take effect upon receipt thereof.
12. This Agreement shall be binding upon, and inure solely to the benefit
of, the Purchasers, and the Issuers, to the extent provided in Sections 8 and 9
hereof, the officers and directors of each of the Issuers and each person who
controls either of the Issuers or the Purchasers, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Securities from the Purchasers shall be deemed a successor or assign
by reason merely of such purchase.
13. Time shall be of the essence of this Agreement.
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
15. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us four counterparts hereof, and upon the acceptance hereof by the
Purchasers this letter and such acceptance hereof shall constitute a binding
agreement between the Purchasers and the Issuers.
Very truly yours,
Olympus Communications, L.P.
By: ACP Holdings, Inc.
Managing General Partner
By: ________________________________
Name:
Title:
Olympus Capital Corporation
By: ________________________________
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
- ------------------------------
(Goldman, Sachs & Co.)
<PAGE>
ANNEX I
The Securities have not been and will not be registered under the Act
and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with Regulation S under
the Act or pursuant to an exemption from the registration requirements of the
Act. The Purchasers represent that they have offered and sold the Securities,
and will offer and sell the Securities (i) as part of their distribution at any
time and (ii) otherwise until 40 days after the later of the commencement of the
offering and the Time of Delivery, only in accordance with Rule 903 of
Regulation S, Rule 144A or pursuant to Paragraph 2 of this Annex I under the
Act. Accordingly, the Purchasers agree that neither it, its affiliates nor any
persons acting on its or their behalf has engaged or will engage in any directed
selling efforts with respect to the Securities, and it and they have complied
and will comply with the offering restrictions requirement of Regulation S. The
Purchasers agree that, at or prior to confirmation of sale of Securities (other
than a sale pursuant to Rule 144A) or pursuant to Paragraph 2 of this Annex I,
it will have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases Securities from it during
the restricted period a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933 (the "Act") and may not be offered and sold
within the United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the offering and the
closing date, except in either case in accordance with Regulation S (or
Rule 144A if available) under the Act. Terms used above have the meaning
given to them by Regulation S."
Terms used in this paragraph have the meanings given to them by Regulation S.
(1) Each Purchaser further represents and agrees that (a) it has not
offered or sold and prior to the date six months after the date of issue of the
Securities will not offer or sell any Securities to persons in the United
Kingdom except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995, (b) it
has complied, and will comply, with all applicable provisions of the Financial
Services Act of 1986 of Great Britain with respect to anything done by it in
relation to the Securities in, from or otherwise involving the United Kingdom,
and (c) it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the issuance of
the Securities to a person who is of a kind described in Article 11(3) of the
Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996
of Great Britain or is a person to whom the document may otherwise lawfully be
issued or passed on.
(2) Each Purchaser agrees that it will not offer, sell or deliver any of
the Securities in any jurisdiction outside the United States except under
circumstances that will result in compliance with the applicable laws thereof,
and that it will take at its own expense whatever action is required to permit
its purchase and resale of the Securities in such jurisdictions. Each Purchaser
understands that no action has been taken to permit a public offering in any
jurisdiction outside the United States where action would be required for such
purpose.
<PAGE>
ANNEX II
Pursuant to Section 7(e) of the Purchase Agreement, the accountants shall
furnish letters to the Purchasers to the effect that:
(i) They are independent certified public accountants with respect to
the Issuers and their Subsidiaries under rule 101 of the American
Institute of Certified Public Accountants' Code of Professional Conduct,
and its interpretations and rulings;
(ii)In our opinion, the consolidated financial statements and
financial statement schedules audited by us and included in the Offering
Circular comply as to form in all material respects with the applicable
requirements of the Exchange Act and the related published rules and
regulations;
(iii) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Offering
Circular agrees with the corresponding amounts (after restatements where
applicable) in the audited consolidated financial statements for such five
fiscal years;
(iv)On the basis of limited procedures not constituting an audit in
accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Issuers and their Subsidiaries, inspection of the minute
books of the Issuers and its Subsidiaries since the date of the latest
audited financial statements included in the Offering Circular, inquiries
of officials of the Issuers and its Subsidiaries responsible for financial
and accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them
to believe that:
(A) the unaudited consolidated statements of operations,
consolidated balance sheets and consolidated statements of cash
flows included in the Offering Circular are not in conformity with
generally accepted accounting principles applied on the basis
substantially consistent with the basis for the unaudited condensed
consolidated statements of operations, consolidated balance sheets
and consolidated statements of cash flows included in the Offering
Circular;
(B) any other unaudited statement of operations data and balance
sheet items included in the Offering Circular do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included in
the Offering Circular;
(C) the unaudited financial statements which were not included in
the Offering Circular but from which were derived any unaudited
condensed financial statements referred to in Clause (A) and any
unaudited statement of operations data and balance sheet items
included in the Offering Circular and referred to in Clause (B) were
not determined on a basis substantially consistent with the basis
for the audited consolidated financial statements included in the
Offering Circular;
(D) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
partner's equity (deficiency) or capital stock, as applicable (other
than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest financial statements included
in the Offering Circular) or any increase in the consolidated
long-term debt of the Company and its Subsidiaries, partner's equity
(deficiency) or stockholders' equity, as applicable or other items
specified by the Purchasers, or any increases in any items specified
by the Purchasers, in each case as compared with amounts shown in
the latest balance sheet included in the Offering Circular except in
each case for changes, increases or decreases which the Offering
Circular discloses have occurred or may occur or which are described
in such letter; and
(E) for the period from the date of the latest financial
statements included in the Offering Circular to the specified date
referred to in Clause (D) there were any decreases in consolidated
net revenues or income from operations or increases in the total or
per share amounts of consolidated net loss or other items specified
by the Purchasers, or any increases in any items specified by the
Purchasers, in each case as compared with the comparable period of
the preceding year and with any other period of corresponding length
specified by the Purchasers, except in each case for decreases or
increases which the Offering Circular discloses have occurred or may
occur or which are described in such letter; and
(v) In addition to the examination referred to in their report(s)
included in the Offering Circular and the limited procedures, inspection
of minute books, inquiries and other procedures referred to in paragraphs
(iii) and (iv) above, they have carried out certain specified procedures,
not constituting an audit in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Purchasers, which are derived from the
general accounting records of the Company and its Subsidiaries, which
appear in the Offering Circular, and have compared certain of such
amounts, percentages and financial information with the accounting records
of the Company and its Subsidiaries and have found them to be in
agreement.
<PAGE>
SCHEDULE A
A-1
1. Revolving Credit Facility, dated as of May 12, 1995, among Adelphia Cable
Partners, L.P., Southeast Florida Cable, Inc., West Boca Acquisition
Limited Partnership, the lenders from time to time party thereto, and the
agents thereto including any related notes, guarantees, collateral
documents, instruments and agreements executed in connection therewith.
2. Amended and Restated Credit Agreement, dated as of March 29, 1996, by and
among Highland Video Associates, L.P., Telesat Acquisition Limited
Partnership, Global Acquisition Partners, L.P. and the lenders from time
to time party thereto including any related notes, guarantees, collateral
documents, instruments and agreements executed in connection therewith.
<PAGE>
SCHEDULE B
B-1
Adelphia Cable Partners, L.P.
West Boca Acquisition Limited Partnership
Leadership Acquisition Limited Partnership.
<PAGE>
Ownership by the
Company and its Subsidiaries
Timotheos Communications, L.P. 100%
West Boca Security, Inc.
Starpoint Limited Partnership 50.36%
Cable Sentry Corporation 100%*
Key Biscayne Cablevision 50%
Southeast Florida Cable, Inc. 100%
Palm Beach Group Cable, Inc. 100%
Palm Beach Group Cable Joint Venture 50%
*owned by Starpoint Limited Partnership
Exhibit 10.02
OLYMPUS COMMUNICATIONS, L.P
OLYMPUS CAPITAL CORPORATION
As Issuers
10_% SENIOR NOTES DUE 2006
INDENTURE
Dated as of November 12, 1996
BANK OF MONTREAL TRUST COMPANY
Trustee
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
B-6-7
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310 (a)(1)............................................... 7.10
(a)(2)............................................. 7.10
(a)(3) ............................................. N.A.
(a)(4).............................................. N.A.
(a)(5)............................................. 7.10
(b) ............................................... 7.10
(c) ................................................ N.A.
311 (a) ................................................. 7.11
(b) ............................................... 7.11
(c) ................................................ N.A.
312 (a).................................................. 10.03
(b)................................................ 10.03
(c) ............................................... 10.03
313 (a) ................................................. 7.06
(b)(1) ............................................. N.A.
(b)(2) ........................................... 7.06;7.07
(c) ............................................... 7.06;10.02
(d)................................................ 7.06
314 (a) ................................................. 4.03;10.02
(a)(4)............................................. 10.05
(b) ................................................ N.A.
(c)(1) ............................................ 10.04
(c)(2) ............................................ 10.04
(c)(3) ............................................. N.A.
(d)................................................. N.A.
(e) .............................................. 10.05
(f)................................................. N.A.
315 (a).................................................. 7.01
(b)................................................ 7.05,10.02
(c) .............................................. 7.01
(d)................................................ 7.01
(e)................................................ 6.11
316 (a)(last sentence.................................... 2.09
(a)(1)(A).......................................... 6.05
(a)(1)(B) ......................................... 6.04
(a)(2) ............................................. N.A.
(b) ............................................... 6.07
(c) ............................................... 2.12
317 (a)(1) .............................................. 6.08
(a)(2)............................................. 6.09
(b) ............................................... 2.04
318 (a).................................................. 10.01
(b)................................................. N.A.
(c)................................................ 10.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
<PAGE>
- -------------------------------------------------------------------------------
Page
- -------------------------------------------------------------------------------
iii
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
ARTICLE 1
<S> <C>
Section 1.01. Definitions.............................................................................1
Section 1.02. Other Definitions......................................................................13
Section 1.03. Incorporation by Reference of Trust Indenture Act......................................14
Section 1.04. Rules of Construction..................................................................14
ARTICLE 2
Section 2.01. Form and Dating........................................................................15
Section 2.02. Execution and Authentication...........................................................17
Section 2.03. Registrar and Paying Agent.............................................................17
Section 2.04. Paying Agent to Hold Money in Trust....................................................18
Section 2.05. Holder Lists...........................................................................18
Section 2.06. Transfer and Exchange..................................................................18
Section 2.07. Replacement Senior Notes...............................................................27
Section 2.08. Outstanding Senior Notes...............................................................27
Section 2.09. Treasury Notes.........................................................................28
Section 2.10. Temporary Senior Notes.................................................................28
Section 2.11. Cancellation...........................................................................28
Section 2.12. Defaulted Interest.....................................................................28
ARTICLE 3
Section 3.01. Notices to Trustee.....................................................................29
Section 3.02. Selection of Senior Notes to Be Redeemed...............................................29
Section 3.03. Notice of Redemption...................................................................29
Section 3.04. Effect of Notice of Redemption.........................................................30
Section 3.05. Deposit of Redemption Price............................................................30
Section 3.06. Senior Notes Redeemed in Part..........................................................31
Section 3.07. Optional Redemption....................................................................31
Section 3.08. Mandatory Redemption...................................................................31
Section 3.09. Offer to Purchase by Application of Excess Proceeds....................................32
ARTICLE 4
Section 4.01. Payment of Senior Notes................................................................34
Section 4.02. Maintenance of Office or Agency........................................................34
Section 4.03. Reports................................................................................35
Section 4.04. Compliance Certificate.................................................................35
Section 4.05. Taxes..................................................................................36
Section 4.06. Stay, Extension and Usury Laws.........................................................36
Section 4.07. Restricted Payments....................................................................36
Section 4.08. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries..............38
Section 4.09. Incurrence of Indebtedness and Issuance of Disqualified Interests......................39
Section 4.10. Asset Sales............................................................................40
Section 4.11. Transactions with Affiliates...........................................................41
Section 4.12. Liens..................................................................................41
Section 4.13. Business Activities of Olympus Capital.................................................42
Section 4.14. Corporate Existence....................................................................42
Section 4.15. Offer to Repurchase Upon Change of Control.............................................43
ARTICLE 5
Section 5.01. Merger, Consolidation, or Sale of Assets...............................................44
Section 5.02. Successor Corporation Substituted......................................................44
ARTICLE 6
Section 6.01. Events of Default......................................................................45
Section 6.02. Acceleration...........................................................................46
Section 6.03. Other Remedies.........................................................................47
Section 6.04. Waiver of Past Defaults................................................................48
Section 6.05. Control by Majority....................................................................48
Section 6.06. Limitation on Suits....................................................................48
Section 6.07. Rights of Holders of Senior Notes to Receive Payment...................................49
Section 6.08. Collection Suit by Trustee.............................................................49
Section 6.09. Trustee May File Proofs of Claim.......................................................49
Section 6.10. Priorities.............................................................................49
Section 6.11. Undertaking for Costs..................................................................50
ARTICLE 7
Section 7.01. Duties of Trustee......................................................................50
Section 7.02. Rights of Trustee......................................................................51
Section 7.03. Individual Rights of Trustee...........................................................52
Section 7.04. Trustee's Disclaimer...................................................................52
Section 7.05. Notice of Defaults.....................................................................52
Section 7.06. Reports by Trustee to Holders of the Senior Notes......................................52
Section 7.07. Compensation and Indemnity.............................................................53
Section 7.08. Replacement of Trustee.................................................................54
Section 7.09. Successor Trustee by Merger, etc.......................................................55
Section 7.10. Eligibility; Disqualification..........................................................55
Section 7.11. Preferential Collection of Claims Against Company......................................55
ARTICLE 8
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance...............................55
Section 8.02. Legal Defeasance and Discharge.........................................................55
Section 8.03. Covenant Defeasance....................................................................56
Section 8.04. Conditions to Legal or Covenant Defeasance.............................................56
Section 8.05. Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions...................................................................58
Section 8.06. Repayment to Issuers...................................................................58
Section 8.07. Reinstatement..........................................................................59
ARTICLE 9
Section 9.01. Without Consent of Holders of Senior Notes.............................................59
Section 9.02. With Consent of Holders of Senior Notes................................................60
Section 9.03. Compliance with Trust Indenture Act....................................................61
Section 9.04. Revocation and Effect of Consents......................................................61
Section 9.05. Notation on or Exchange of Senior Notes................................................61
ARTICLE 10
Section 10.01. Trust Indenture Act Controls..........................................................62
Section 10.02. Notices...............................................................................62
Section 10.03. Communication by Holders of Senior Notes with Other Holders of Senior Notes...........63
Section 10.04. Certificate and Opinion as to Conditions Precedent....................................63
Section 10.05. Statements Required in Certificate or Opinion.........................................64
Section 10.06. Rules by Trustee and Agents...........................................................64
Section 10.07. No Personal Liability of Directors, Officers, Employees and Stockholders..............64
Section 10.08. Governing Law.........................................................................64
Section 10.09. No Adverse Interpretation of Other Agreements.........................................64
Section 10.10. Successors............................................................................65
Section 10.11. Severability..........................................................................65
Section 10.12. Counterpart Originals.................................................................65
Section 10.13. Table of Contents, Headings, etc......................................................65
</TABLE>
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
EXHIBITS
Exhibit A-1 FORM OF SENIOR NOTE
Exhibit A-2 FORM OF REGULATION S TEMPORARY GLOBAL
NOTE
Exhibit B-1 FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM U.S. GLOBAL NOTE TO REGULATION S GLOBAL NOTE
Exhibit B-2 FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE OR
ACCREDITED INSTITUTIONAL INVESTOR GLOBAL NOTE
Exhibit B-3 FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF
TRANSFER FROM RULE 144A GLOBAL NOTE OR ACCREDITED
INSTITUTIONAL INVESTOR GLOBAL NOTE TO ACCREDITED
INSTITUTIONAL INVESTOR GLOBAL NOTE OR RULE 144A GLOBAL NOTE,
RESPECTIVELY
Exhibit B-4 FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
OF DEFINITIVE NOTES
Exhibit B-5 FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE OR ACCREDITED INSTITUTIONAL
INVESTOR GLOBAL NOTE OR REGULATION S PERMANENT GLOBAL NOTE TO
DEFINITIVE NOTE
Exhibit B-6 FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM DEFINITIVE NOTE TO RULE 144A GLOBAL NOTE OR ACCREDITED
INSTITUTIONAL INVESTOR GLOBAL NOTE OR REGULATION S PERMANENT
GLOBAL NOTE
<PAGE>
ANNEXES
Annex A MANAGEMENT FEE SUBORDINATION AGREEMENT
Annex B FORM OF SUBORDINATION AGREEMENT
1. This paragraph should be included only if the Senior Note is issued in global
form.
2. This should be included only if the Senior Note is issued in global form.
INDENTURE dated as of November 12, 1996 among Olympus
Communications, L.P., a Delaware limited partnership, (the "Company"), Olympus
Capital Corporation, a Delaware corporation ("Olympus Capital" and, together
with the Company, the "Issuers"), and Bank of Montreal Trust Company (the
"Trustee").
The Issuers and the Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders of the 10_%
Senior Notes due 2006 (the "Series A Senior Notes") and the 10_% Senior Notes
due 2006 (the "Series B Senior Notes" and, together with the Series A Senior
Notes, the "Senior Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
Set forth below are certain defined terms used in the Indenture.
Reference is made to the Indenture for a full disclosure of all such terms, as
well as any other capitalized terms used herein for which no definition is
provided.
"Accredited Institutional Investor Global Note" means a permanent global
note that contains the paragraph referred to in footnote 1 and the additional
schedule referred to in footnote 2 to the form of the Senior Note attached
hereto as Exhibit A-1, and that is deposited with and registered in the name of
the Depository, representing a series of Senior Notes sold to institutional
accredited investors in transactions exempt from registration under the
Securities Act not made in reliance on Rule 144A or Regulation S.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Adelphia" with respect to any securities, means Adelphia Communications
Corporation, a Delaware corporation.
"Adelphia Related Party" means any Subsidiary of Adelphia, but shall not
include the Company or any Subsidiary of the Company if the Company otherwise
becomes a Subsidiary of Adelphia.
"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 purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the voting securities of a Person shall
be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Agent Members" means members of, or participants in, the Depository.
"Asset Sale" means (i) the sale, lease, conveyance or other disposition
of any assets (including, without limitation, by way of a sale and leaseback)
other than sales of inventory and other current assets in the ordinary course of
business (provided that the sale, lease, conveyance or other disposition of all
or substantially all of the assets of the Company and its Restricted
Subsidiaries taken as a whole will be governed in accordance with Section 4.15
and/or 5.01 hereof and not be subject to the provisions of Section 4.10 hereof,
and (ii) the issue of Equity Interests of any of the Company's Restricted
Subsidiaries or sale of Equity Interests of any of the Company's Restricted
Subsidiaries, in the case of either clause (i) or (ii), whether in a single
transaction or a series of related transactions (a) that have a fair market
value in excess of $1,000,000 or (b) for net proceeds in excess of $500,000.
Notwithstanding the foregoing: (i) a transfer of assets by any Person to a
Restricted Subsidiary of such Person, or by a Restricted Subsidiary of any
Person to such Person or to another Restricted Subsidiary of such Person; (ii)
an issuance of Equity Interests by a Restricted Subsidiary of any Person to such
Person or to another Restricted Subsidiary of such Person; and (iii) a
Restricted Payment that is permitted by Section 4.07 herein will not be deemed
to be Asset Sales.
"Applicable Procedures" means applicable procedures of the Depository,
Euroclear or Cedel Bank, as the case may be.
"Bank Facilities" means (i) that certain Revolving Credit Facility, dated
as of May 12, 1995 among Adelphia Cable Partners, L.P., Southeast Florida Cable,
Inc., West Boca Acquisition Limited Partnership, the lenders from time to time
party thereto, and the agents thereto and (ii) that certain Amended and Restated
Credit Agreement dated as of March 29, 1996 by and among Highland Video
Associates, L.P., Telesat Acquisition Limited Partnership, Global Acquisition
Partners, L.P., and the lenders from time to time party thereto, including any
related notes, Guarantees, collateral documents, instruments and agreements
executed in connection therewith.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Board of Directors" means (i) the board of directors of the Managing
General Partner of the Company, for so long as the Company is a partnership and
(ii) the Person or Persons performing functions for the Company similar to those
performed by the board of directors of a corporation otherwise.
"Business Day" means any day other than a Legal Holiday.
"Capital Contributions" means (i) the sale of Equity Interests of the
Company for cash proceeds or (ii) cash capital contributions to the Company.
"Capital Lease Obligation" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock, including,
without limitation, with respect to partnerships, partnership interests (whether
general or limited) and any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, such partnership.
"Cash Equivalents" means (i) United States dollars, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of not
more than six months from the date of acquisition, (iii) certificates of deposit
and eurodollar time deposits with maturities of six months or less from the date
of acquisition, bankers' acceptances with maturities not exceeding six months
and overnight bank deposits, in each case with any domestic commercial bank
having capital and surplus in excess of $500 million, (iv) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clauses (ii) and (iii) above entered into with any
financial institution meeting the qualifications specified in clause (iii) above
and (v) commercial paper having the highest rating obtainable from Moody's
Investors Service, Inc. or Standard & Poor's Corporation and in each case
maturing within six months after the date of acquisition.
"Change of Control" means the occurrence of any of the following (i) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Restricted Subsidiaries
taken as a whole to any "person" (as such term is used in Section 13(d)(3) of
the Exchange Act); (ii) the adoption of a plan relating to the liquidation or
dissolution of the Company; or (iii) the consummation of any transaction
(including, without limitation, any merger or consolidation) the result of which
is that any "person" (as defined above), other than the Rigas Principals, the
Rigas Related Parties, the FPL Principals or the FPL Related Parties, becomes
the "beneficial owner" (as such term is defined in Rule 13d-3 and Rule 13d-5
under the Exchange Act), directly or indirectly, of more than 50% of all Voting
Equity Interests in the Company; or (iv) the consummation of any transaction
(including, without limitation, any merger or consolidation) the result of which
is (a) that the FPL Principals and the FPL Related Parties are the "beneficial
owners" (as defined above) of Equity Interests which represent less than 20% of
the aggregate distributions which would be received by the Holders of all Equity
Interests upon a liquidation of the Company or (b) that the FPL Principals and
the FPL Related Parties are the "beneficial owners" of Voting Equity Interests
that in the aggregate have less voting power than the aggregate Voting Equity
Interests for which Adelphia or the Adelphia Related Parties are the "beneficial
owners".
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor thereto.
"Company" means Olympus Communications, L.P., a Delaware limited
partnership.
"Consolidated Annualized Cash Flow" means, with respect to any Person for
any period, the product (a) the Consolidated Cash Flow of such Person for the
most recently completed fiscal quarter for which internal financial statements
are available, times (b) four.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus (i) an
amount equal to any extraordinary loss plus any net loss realized in connection
with an Asset Sale (to the extent such losses were deducted in computing such
Consolidated Net Income), plus (ii) the Tax Amount and the amount of other taxes
based on income or profits of such Person and its Restricted Subsidiaries for
such period, to the extent that such amounts were deducted in computing such
Consolidated Net Income, plus (iii) consolidated interest expense of such Person
and its Restricted Subsidiaries for such period, whether paid or accrued
(including, without limitation, amortization of original issue discount,
non-cash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with Capital
Lease Obligations, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings, and net payments
(if any) pursuant to Hedging Obligations), to the extent that any such expense
was deducted in computing such Consolidated Net Income, plus (iv) depreciation,
amortization (including amortization of goodwill and other intangibles but
excluding amortization of prepaid cash expenses that were paid in a prior
period) and other non-cash charges (excluding any such non-cash charge to the
extent that it represents an accrual of or reserve for cash charges in any
future period or amortization of a prepaid cash expense that was paid in a prior
period) of such Person and its Restricted Subsidiaries for such period to the
extent that such depreciation, amortization and other non-cash charges were
deducted in computing such Consolidated Net Income, plus (v) Management Fees to
the extent that such Management Fees were deducted in computing such
Consolidated Net Income, in each case, on a consolidated basis and determined in
accordance with GAAP, plus (vi) the Consolidated Cash Flow of any Unrestricted
Subsidiary to the extent actually paid to the Company or any Restricted
Subsidiary and not otherwise included in the Company's Consolidated Cash Flow.
"Consolidated Indebtedness" means, with respect to any Person as of any
date of determination, the sum, without duplication, of (i) the total amount of
Indebtedness of such Person and its Restricted Subsidiaries, plus (ii) the
aggregate liquidation value of all Disqualified Interests of such Person and all
preferred Equity Interests of Restricted Subsidiaries of such Person, in each
case, determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any Person for any
period, the sum of (i) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued (including,
without limitation, amortization or original issue discount, non-cash interest
payments, the interest component of any deferred payment obligations, the
interest component of all payments associated with Capital Lease Obligations,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers' acceptance financings, and net payments (if any) pursuant
to Hedging Obligations) and (ii) the amount of consolidated interest of such
Person and its Restricted Subsidiaries that was capitalized during such period,
and (iii) any interest expense on Indebtedness of another Person that is
guaranteed by such Person or one of its Restricted Subsidiaries or secured by a
Lien on assets of such Person or one of its Restricted Subsidiaries (whether or
not such Guarantee or Lien is called upon) and (iv) the product of (a) all
dividend payments on any series of preferred Equity Interests of such Person or
any of its Restricted Subsidiaries, times (b) a fraction, the numerator of which
is one and the denominator of which is one minus the then current combined
federal, state and local statutory tax rate of such Person (or, in the case of a
Person that is a partnership or a limited liability company, the combined
federal, state and local tax rate to which such Person would be subject if it
were a Delaware corporation filing separate tax returns with respect to its
Taxable Income), expressed as a decimal, in each case, on a consolidated basis
and in accordance with GAAP; provided however, that Consolidated Interest
Expense shall exclude interest expense on Indebtedness owed to an Affiliate of
the Company the payment of which would constitute a Restricted Payment and which
Indebtedness is subject to a Subordination Agreement.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that (i) the Net Income of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Restricted Subsidiary
thereof, (ii) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall be
excluded and (iii) the cumulative effect of a change in accounting principles
shall be excluded.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 11.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Debt to Cash Flow Ratio" means, with respect to any Person as of any
date of determination (the "Calculation Date"), the ratio of (a) the
Consolidated Indebtedness of such Person as of such date to (b) the Consolidated
Annualized Cash Flow of such Person for the most recent full fiscal quarter
ending immediately prior to such date for which internal financial statements
are available, determined on a pro forma basis after giving effect to all
acquisitions or dispositions of assets made by such Person and its Restricted
Subsidiaries from the beginning of such one-quarter period through and including
such date of determination (including any related financing transactions) as if
such acquisitions and dispositions had occurred at the beginning of such
one-quarter period. In addition, for purposes of making the computation referred
to above, (i) acquisitions that have been made by such Person or any of its
Restricted Subsidiaries, including through mergers or consolidations and
including any related financing transactions, during the reference period or
subsequent to such reference period and on or prior to the Calculation Date
shall be deemed to have occurred on the first day of the one-quarter reference
period and Consolidated Cash Flow for such reference period shall be calculated
without giving effect to clause (ii) of the proviso set forth in the definition
of Consolidated Net Income, and (ii) the Consolidated Cash Flow attributable to
discontinued operations, as determined in accordance with GAAP, and operations
or business disposed of prior to the Calculation Date, shall be excluded.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Definitive Notes" means Senior Notes that are in the form of the Senior
Notes attached hereto as Exhibit A-1, that do not include the information called
for by footnotes 1 and 2 thereof.
"Depository" means, with respect to the Senior Notes issuable or issued
in whole or in part in global form, the Person specified in Section 2.03 hereof
as the Depository with respect to the Senior Notes, until a successor shall have
been appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depository" shall mean or include such successor.
"Disqualified Interest" means any Equity Interest that, by its terms (or
by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the Holder thereof, in whole or in part, on or prior to the date
that is one year after the date on which the Senior Notes mature.
"Equity Interests" means (i)(a) in the case of a corporation, corporate
stock, (b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (c) in the case of a partnership, partnership interests
(whether general or limited) and (d) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person (other than stock appreciation
rights and similar "phantom" stock rights) and (ii) all warrants, options or
other rights to acquire any of the foregoing (but excluding any debt security
that is convertible into, or exchangeable for, any of the foregoing).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" means the offer that may be made by the Issuers pursuant
to the Registration Rights Agreement to exchange Series B Senior Notes for
Series A Senior Notes.
"Existing Indebtedness" means, Indebtedness of the Company and its
Subsidiaries in existence on the date of the Indenture until such amounts are
repaid.
"FPL Group" means FPL Group, Inc., a Florida corporation.
"FPL Principals" with respect to any securities, means FPL Group, Inc., a
Florida corporation.
"FPL Related Party" means any subsidiary of FPL Group.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"Global Note" means, individually and collectively, the Regulation S
Temporary Global Note, the Regulation S Permanent Global Note, the Accredited
Institutional Investor Global Note and the Rule 144A Global Note.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Hedging Obligations" means, with respect to any Person, the obligations
of such Person under (i) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements and (ii) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates.
"Holder" means a Person in whose name a Definitive Note is registered on
the books of the Registrar, or in whose name a beneficial interest in a Global
Note is recorded by the Trustee or the Note Custodian.
"Indebtedness" means, with respect to any Person, without duplication,
any Indebtedness of such Person, whether or not contingent, in respect of
borrowed money or evidenced by bonds, notes, Senior Notes or similar instruments
or letters of credit (or reimbursement agreements in respect thereof) or
banker's acceptances or representing Capital Lease Obligations or the balance
deferred and unpaid of the purchase price of any property, except any such
balance that constitutes an accrued expense or trade payable or representing any
Hedging Obligations, if and to the extent any of the foregoing Indebtedness
(other than letters of credit and Hedging Obligations) would appear as a
liability upon a balance sheet of such Person prepared in accordance with GAAP,
as well as all Indebtedness of others secured by a Lien on any asset of such
Person (whether or not such Indebtedness is assumed by such Person) and, to the
extent not otherwise included, the Guarantee by such Person of any Indebtedness
of any other Person; provided, however, Indebtedness shall not include (i) any
Indebtedness owed to an Affiliate of the Company, the payment of interest,
principal or premium thereon in cash would constitute a Restricted Payment and
which is subject to a Subordination Agreement or (ii) any Indebtedness of
Telesat Acquisition Limited Partnership ("Telesat"), in excess of the amount
attributed to Telesat in accordance with GAAP, pursuant to that certain Amended
and Restated Credit Agreement dated as of March 29, 1996 among Highland Video
Associates, L.P., Telesat, Global Acquisition Partners, L.P. and the Lenders
from time to time party thereto, and any refinancing thereof.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Initial Public Offering" means a public offering of Equity Interests of
the Company registered under the Securities Act resulting in such Equity
Interests becoming listed on the New York Stock Exchange, the American Stock
Exchange or quoted on a Nasdaq automated quotation system.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
If any Person or any Restricted Subsidiary of such Person sells or otherwise
disposes of any Equity Interests of any direct or indirect Restricted Subsidiary
of such Person such that, after giving effect to any such sale or disposition,
such Restricted Subsidiary is no longer a Restricted Subsidiary of the referent
Person, the referent Person shall be deemed to have made an Investment on the
date of any such sale or disposition equal to the fair market value of the
Equity Interest of such Restricted Subsidiary not sold or disposed of.
"Investment Grade Senior Debt" means, with respect to any Person,
Indebtedness of such Person which has been rated with an investment grade rating
by Moody's Investors Service, Inc. (or any successor to the rating agency
business thereof) and Standard & Poor's Rating Group (or any successor to the
rating agency), respectively.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Liquidated Damages" means all liquidated damages then owing pursuant to
Section 5 of the Registration Rights Agreement.
"Management Fee" means any management fee or reimbursement of expenses or
overhead paid by the Company or any of its Subsidiaries to Adelphia or any of
its Affiliates (other than the Company and its Restricted Subsidiaries).
"Management Fee Subordination Agreement" means an agreement to
subordinate any Management Fees pursuant to an agreement substantially in the
form attached as Annex A hereto.
"Managing General Partner" means ACP Holdings, Inc., a Delaware
corporation, or any successor thereto as managing general partner of the Company
under the Partnership Agreement.
"Material Agreements" means the Partnership Agreement.
"Net Income" means, with respect to any Person, (i) the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction in
respect of dividends on preferred interests, excluding, however, (a) any gain,
together with any related provision for taxes or the Taxable Income on such
gain, realized in connection with (1) any Asset Sale (including, without
limitation, dispositions pursuant to sale and leaseback transactions) or (2) the
disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries and (b) any extraordinary or nonrecurring gain,
together with any related provision for taxes on such extraordinary or
nonrecurring gain, less (ii) in the case of any Person that is a partnership or
a limited liability company, the Tax Amount of such Person for such period.
"Net Proceeds" means the aggregate cash proceeds received by the Company
or any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions) and any relocation expenses
incurred as a result thereof, taxes paid or payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements) and any reserve for adjustment in respect of the sale price of
such asset or assets established in accordance with GAAP.
"Nonrecourse Debt" means Indebtedness of an Unrestricted Subsidiary (i)
as to which neither the Company nor any of its Restricted Subsidiaries (a)
provides credit support of any kind (including any undertaking or agreement to
maintain a net worth or other financial well being of such Unrestricted
Subsidiary), (b) is directly or indirectly liable as guarantor, or (c)
constitutes the lender; and (ii) no default with respect to which would permit
(upon notice, lapse of time or both) any holder of any other Indebtedness of the
Company or any Restricted Subsidiary to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity; and (iii) as to which the lenders have been notified in
writing that they will not have any recourse to the Equity Interests or assets
of the Company or any Restricted Subsidiary (other than the Equity Interests of
an Unrestricted Subsidiary).
"Note Custodian" means custodian for the Depository of the Senior Notes
in global form, or any successor entity thereto.
"Obligations" means any principal, interest (including post-petition
interest, whether or not an allowable claim), penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness.
"Offering" means the Offering of the Senior Notes by the Issuers.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of an Issuer
by two Officers, who must be the principal executive officer, the principal
financial officer, the treasurer or the principal accounting officer of the
Managing General Partner, on behalf of the Company (or the Company, if the
Company is a corporation) or Olympus Capital, as the case may be, that meets the
requirements of Section 11.05 hereof.
"Olympus Capital" means Olympus Capital Corporation, a Delaware
corporation and a wholly owned Subsidiary of the Company, and any successor
thereto as obligor under the Indenture and the Senior Notes.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
11.05 hereof. The counsel may be an employee of or counsel to the Issuers, any
Subsidiary of the Company or the Trustee.
"Partnership Agreement" means the Second Amended and Restated Limited
Partnership Agreement of the Company, dated as of February 28, 1995, by and
among ACP Holdings, Inc., Cable GP, Inc., and Cable LP III, Inc., and as amended
from time to time.
"Permitted Investments" means, with respect to any Person, (i) any
Investment in such Person or in a Restricted Subsidiary of such Person, (ii) any
Investment in Cash Equivalents, (iii) any Investment in another Person (the
"Investment Recipient") by such Person or any Restricted Subsidiary of such
Person, if as a result of such Investment (a) such Investment Recipient becomes
a Restricted Subsidiary of such Person or (b) such Investment Recipient is
merged, consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, such Person or a
Restricted Subsidiary of such Person, (iv) any Investment created as a result of
the receipt of non-cash consideration from an Asset Sale that was made pursuant
to and in compliance with Section 4.10, (v) any Investment that is made solely
with net cash proceeds of the sale or with the exchange of (other than to a
Restricted Subsidiary of the Issuers) of Equity Interests (other than
Disqualified Interests) of the Issuers; provided that the amount of any such net
cash proceeds that are so utilized for such Investment shall be excluded from
clause (c)(2) of Section 4.01 and (vi) other Investments in any Person having an
aggregate fair market value (measured on the date each such Investment was made
and without giving effect to subsequent changes in value), when taken together
with all other Investments made pursuant to this clause (vi) that are at the
time outstanding, not to exceed $1.0 million.
"Permitted Refinancing Indebtedness" means any Indebtedness of any Person
or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of such Person or any of its Restricted Subsidiaries;
provided that: (i) the principal amount (or accreted value, if applicable) of
such Permitted Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded (plus the amount of reasonable expenses
and premium incurred in connection therewith), (ii) such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of,
and has a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded, (iii) if the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded is
Indebtedness of the Issuers or any of its Restricted Subsidiaries that is
contractually subordinated in right of payment to the Senior Notes, such
Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and is expressly contractually subordinated in right of
payment to the prior payment in full in cash of all Obligations with respect to,
the Senior Notes on terms at least as favorable to the Holders of Senior Notes
as those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded and (iv) such
Indebtedness is incurred either by the Issuers or by the Person who is the
obligor on the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or agency or political subdivision thereof (including any subdivision
or ongoing business of any such entity or substantially all of the assets of any
such entity, subdivision or business).
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of November 12, 1996, by and among the Issuers and the other parties
named on the signature pages thereof, as such agreement may be amended, modified
or supplemented from time to time.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means the Regulation S Temporary Global Note
or the Regulation S Permanent Global Note, as applicable.
"Regulation S Permanent Global Note" means a permanent global note that
contains the paragraph referred to in footnote 1 and the additional schedule
referred to in footnote 2 to the form of the Senior Note attached hereto as
Exhibit A-1, and that is deposited with and registered in the name of the
Depository or its nominee, representing a series of Senior Notes sold in
reliance on Regulation S.
"Regulation S Temporary Global Note" means a single temporary global note
in the form of the Senior Note attached hereto as Exhibit A-2 that is deposited
with and registered in the name of the Depository, representing a series of
Senior Notes sold in reliance on Regulation S.
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" means with respect to any Person, any Subsidiary
of that Person that has not been designated an "Unrestricted Subsidiary" under
the Indenture.
"Rigas Principals" with respect to any securities, means (i) John J.
Rigas, any descendant of John J. Rigas and any of their respective spouses, (ii)
any estate of any person under clause (i) with respect to any such securities
within such estate, (iii) any person who receives such securities from any
estate under clause (ii) to the extent of such securities, (iv) any executor,
personal administrator or trustee who holds such securities for the benefit of,
or as fiduciary for, any Person under clauses (i), (ii) or (iii) to the extent
of such securities.
"Rigas Related Party" means (i) any corporation, partnership, limited
liability company, business trust or other entity, for which no one Person
beneficially owns Voting Equity Interests in such corporation, partnership,
limited liability company, business trust or other entity greater than all of
the Rigas Principals (taken in the aggregate) or (ii) any charitable foundation
or organization a majority of the directors of which are Rigas Principals.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 144A Global Note" means a permanent global note that contains the
paragraph referred to in footnote 1 and the additional schedule referred to in
footnote 2 to the form of the Senior Note attached hereto as Exhibit A-1, and
that is deposited with and registered in the name of the Depository,
representing a series of Senior Notes sold in reliance on Rule 144A.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Notes" means the Series A Senior Notes and the Series B Senior
Notes.
"Series A Senior Notes" means the 10_% Senior Notes due 2006 issued
pursuant to this Indenture.
"Series B Senior Notes" means the 10_% Senior Notes due 2006 to be issued
pursuant to this Indenture in the Exchange Offer.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Act, as such Regulation is in effect on the date
hereof.
"Subordination Agreement" means a subordination agreement substantially
in the form attached as Annex B hereto.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"Tax Amount" means, with respect to any Person for any period, the
combined federal, state and local taxes that would be paid by such Person if it
were a Delaware corporation filing separate tax returns with respect to its
Taxable Income for such Period; provided, however, that in determining the Tax
Amount, the effect thereon of any net operating loss carryforwards or other
carryforwards or tax attributes, such as alterative minimum tax carryforwards,
that would have arisen if such Person were a Delaware corporation shall be taken
into account. Notwithstanding anything to the contrary, Tax Amount shall not
include taxes resulting from such Person's reorganization as, or change in
status to, a corporation.
"Taxable Income" means, with respect to any Person for any period, the
taxable income or loss of such Person for such period for federal income tax
purposes; provided, that (i) all items of income, gain, loss or deduction
required to be stated separately pursuant to Section 703(a)(1) of the Code shall
be included in taxable income or loss, (ii) any basis adjustment made in
connection with an election under Section 754 of the Code shall be disregarded
and (iii) such taxable income shall be increased or such taxable loss shall be
decreased by the amount of any interest expense incurred by such Person that is
not treated as deductible for federal income tax purposes by a partner or member
of such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.ss.ss.
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"Transfer Restricted Securities" means securities that bear or are
required to bear the legend set forth in Section 2.06 hereof.
"Trustee" means the party named as such above until a successor replaces
it in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
"Unrestricted Subsidiary" means any Subsidiary, other than Adelphia Cable
Partners Limited Partnership, that is designated an Unrestricted Subsidiary in
accordance with the terms of the Indenture.
"Voting Equity Interests" means, (i) with respect to the Issuers while it
is a partnership, any Equity Interests in the Issuers entitled to consent or
vote on any matter under the Partnership Agreement that is not in the discretion
of the Managing General Partner thereof, and (ii) with respect to any other
Person or the Issuers if it is not a partnership, Equity Interests of that
Person that is ordinarily entitled to have the voting power to elect the Board
of Directors of that Person, whether at all times or only so long as no senior
class of securities has voting power by reason of a contingency.
Section 1.02. Other Definitions. Defined in
Term Section
"Accredited Investors".......................................... 2.01
"Affiliate Transaction"......................................... 4.11
"Asset Sale".................................................... 4.10
"Asset Sale Offer".............................................. 3.09
"Cedel Bank".................................................... 2.01
"Change of Control Offer"....................................... 4.15
"Change of Control Payment"..................................... 4.15
"Change of Control Payment Date"................................ 4.15
"Covenant Defeasance"........................................... 8.03
"DTC"........................................................... 2.03
"Euroclear"..................................................... 2.01
"Event of Default".............................................. 6.01
"Excess Proceeds"............................................... 4.10
"incur"......................................................... 4.09
"Legal Defeasance" ............................................. 8.02
"Offer Amount".................................................. 3.09
"Offer Period".................................................. 3.09
"Paying Agent".................................................. 2.03
"Payment Default"............................................... 6.01
"Purchase Date"................................................. 3.09
"QIB" .......................................................... 2.01
"Registrar"..................................................... 2.03
"Restricted Payments"........................................... 4.07
"U.S. Global Notes"............................................. 2.01
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Senior Notes;
"indenture security Holder" means a Holder of a Senior Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Senior Notes means the Issuers and any successor
obligors upon the Senior Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement of successor sections
or rules adopted by the SEC from time to time.
ARTICLE 2
THE SENIOR NOTES
Section 2.01. Form and Dating.
The Senior Notes and the Trustee's certificate of authentication
shall be substantially in the form of (i) in the case of the Senior Notes other
than a Regulation S Temporary Global Note, Exhibit A-1 attached hereto and (ii)
in the case of a Regulation S Temporary Global Note, Exhibit A-2 attached
hereto. The Senior Notes may have notations, legends or endorsements required by
law, stock exchange rule or usage. Each Senior Note shall be dated the date of
its authentication. The Senior Notes shall be in denominations of $1,000 and
integral multiples thereof (subject to a minimum initial purchase requirement of
$100,000 for Senior Notes sold other than in reliance on Rule 144A or Regulation
S).
The terms and provisions contained in the Senior Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Issuers and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
(a) Global Notes. Senior Notes offered and sold to (i) qualified
institutional buyers as defined in Rule 144A ("QIBs") in reliance on Rule 144A
and (ii) institutional accredited investors as defined in Rule 501 (a)(1), (2),
(3) or (7) under the Securities Act ("Accredited Investors") who are not QIBs,
shall be issued initially in the form of Rule 144A Global Notes and Accredited
Institutional Investor Global Notes (collectively, the "U.S. Global Notes"),
respectively, which shall be deposited on behalf of the purchasers of the Senior
Notes represented thereby with the Depository at its New York office, and
registered in the name of the Depository or a nominee of the Depository, duly
executed by the Issuers and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the U.S. Global Notes may from time
to time be increased or decreased by adjustments made on the records of the
Trustee and the Depository or its nominee as hereinafter provided.
Senior Notes offered and sold in reliance on Regulation S shall be
issued initially in the form of the Regulation S Temporary Global Note, which
shall be deposited on behalf of the purchasers of the Senior Notes represented
thereby with the Trustee, at its New York office, as custodian for the
Depository, and registered in the name of the Depository or the nominee of the
Depository for the accounts of designated agents holding on behalf of the
Euroclear System ("Euroclear") or Cedel Bank, S.A. ("Cedel Bank"), duly executed
by the Issuers and authenticated by the Trustee as hereinafter provided. The
"40-day restricted period" (as defined in Regulation S) shall be terminated upon
the receipt by the Trustee of (i) a written certificate from the Depository,
together with copies of certificates from Euroclear and Cedel Bank certifying
that they have received certification of non-United States beneficial ownership
of 100% of the aggregate principal amount of the Regulation S Temporary Global
Note (except to the extent of any beneficial owners thereof who acquired an
interest therein pursuant to another exemption from registration under the
Securities Act and who will take delivery of a beneficial ownership interest in
a U.S. Global Note, all as contemplated by Section 2.06(a)(ii) hereof), and (ii)
an Officers' Certificate from each of the Issuers. Following the termination of
the 40-day restricted period, beneficial interests in the Regulation S Temporary
Global Note shall be exchanged for beneficial interests in Regulation S
Permanent Global Notes pursuant to the Applicable Procedures. Simultaneously
with the authentication of Regulation S Permanent Global Notes, the Trustee
shall cancel the Regulation S Temporary Global Note. The aggregate principal
amount of the Regulation S Temporary Global Note and the Regulation S Permanent
Global Notes may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depository or its nominee, as the case may
be, in connection with transfers of interest as hereinafter provided.
Each Global Note shall represent such of the outstanding Senior
Notes as shall be specified therein and each shall provide that it shall
represent the aggregate amount of outstanding Senior Notes from time to time
endorsed thereon and that the aggregate amount of outstanding Senior Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the amount of
outstanding Senior Notes represented thereby shall be made by the Trustee or the
Note Custodian (as hereinafter defined), at the direction of the Trustee, in
accordance with instructions given by the Holder thereof as required by Section
2.06 hereof.
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and the
"Management Regulations" and "Instructions to Participants" of Cedel Bank shall
be applicable to interests in the Regulation S Temporary Global Note and the
Regulation S Permanent Global Notes that are held by the Agent Members through
Euroclear or Cedel Bank.
Except as set forth in Section 2.06 hereof, the Global Notes may be
transferred, in whole and not in part, only to another nominee of the Depository
or to a successor of the Depository or its nominee.
(b) Book-Entry Provisions. This Section 2.01(b) shall apply
only to U.S. Global Notes and the Regulation S Permanent Global Notes deposited
with or on behalf of the Depository.
The Issuers shall execute and the Trustee shall, in accordance with
this Section 2.01(b), authenticate and deliver the Global Notes that (i) shall
be registered in the name of the Depository or the nominee of the Depository and
(ii) shall be delivered by the Trustee to the Depository or pursuant to the
Depository's instructions or held by the Note Custodian.
Agent Members shall have no rights either under this Indenture with
respect to any Global Note held on their behalf by the Depository or by the Note
Custodian or under such Global Note, and the Depository may be treated by the
Issuers, the Trustee and any agent of the Issuers or the Trustee as the absolute
owner of such Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Issuers, the Trustee or any agent of
the Issuers or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depository or impair, as between
the Depository and its Agent Members, the operation of customary practices of
such Depository governing the exercise of the rights of an owner of a beneficial
interest in any Global Note.
(c) Definitive Notes. Senior Notes issued in certificated form
shall be substantially in the form of Exhibit A-1 attached hereto (but without
including the text referred to in footnotes 1 and 2 thereto).
Section 2.02. Execution and Authentication.
An Officer of the Managing General Partner, on behalf of the
Company (or the Company if the Company is a corporation), and Olympus Capital
shall sign the Senior Notes for the Issuers by manual or facsimile signature.
The Company's seal shall be reproduced on the Senior Notes and may be in
facsimile form.
If an Officer whose signature is on a Senior Note no longer holds
that office at the time a Senior Note is authenticated, the Senior Note shall
nevertheless be valid.
A Senior Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Senior Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Issuers signed by an
Officer of the Managing General Partner on behalf of the Company (or the Company
if the Company is a corporation) and Olympus Capital, authenticate Series A
Senior Notes for original issue up to the aggregate principal amount stated in
paragraph 4 of the Senior Notes, in the case of Series A Senior Notes other than
a Regulation S Temporary Global Note, and the second paragraph of the Senior
Notes, in the case of a Regulation S Temporary Global Note. The Trustee shall,
upon a written order of the Issuers signed by an Officer of the Managing General
Partner on behalf of the Company for the Company if the Company is a
corporation) and Olympus Capital, authenticate Series B Senior Notes for
original issue up to the aggregate principal amount of Series A Senior Notes
exchanged in the Exchange Offer or otherwise exchanged for Series A Senior Notes
pursuant to the terms of the Registration Rights Agreement. The aggregate
principal amount of Senior Notes outstanding at any time may not exceed such
amounts except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Issuers to authenticate Senior Notes. An authenticating agent may authenticate
Senior Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Issuers.
Section 2.03. Registrar and Paying Agent.
The Issuers shall maintain an office or agency where Senior Notes
may be presented for registration of transfer or for exchange ("Registrar") and
an office or agency where Senior Notes may be presented for payment ("Paying
Agent"). The Registrar shall keep a register of the Senior Notes and of their
transfer and exchange. The Issuers may appoint one or more co-registrars and one
or more additional paying agents. The term "Registrar" includes any co-registrar
and the term "Paying Agent" includes any additional paying agent. The Issuers
may change any Paying Agent or Registrar without notice to any Holder. The
Issuers shall notify the Trustee in writing of the name and address of any Agent
not a party to this Indenture. If the Issuers fail to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The
Company or any of its Subsidiaries may act as Paying Agent or Registrar.
The Issuers initially appoint The Depository Trust Company ("DTC")
to act as Depository with respect to the Global Notes.
The Issuers initially appoint the Trustee to act as the Registrar
and Paying Agent respect to the Global Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
The Issuers shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Liquidated Damages, if any, or interest on the Senior
Notes, and will notify the Trustee of any default by the Issuers in making any
such payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Issuers at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Senior Notes.
Section 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, the Issuers shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Senior Notes and the Issuers shall otherwise comply with TIA ss. 312(a).
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depository, in accordance with this Indenture and the procedures of
the Depository therefor, which shall include restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Beneficial interests in a Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in the same Global Note in
accordance with the transfer restrictions set forth in the legend in subsection
(g) of this Section 2.06. Transfers of beneficial interests in the Global Notes
to Persons required to take delivery thereof in the form of an interest in
another Global Note shall be permitted as follows:
(i) U.S. Global Note to Regulation S Global Note. If, at
any time, an owner of a beneficial interest in a U.S.
Global Note deposited with the Depository (or the
Note Custodian) wishes to transfer its interest in
such U.S. Global Note to a Person who is required
or permitted to take delivery thereof in the form
of an interest in a Regulation S Global Note, such
owner shall, subject to the Applicable Procedures,
exchange or cause the exchange of such interest for an
equivalent beneficial interest in a Regulation S Global
Note as provided in this Section 2.06(a)(i). Upon
receipt by the Trustee of (1) instructions given in
accordance with the Applicable Procedures from an Agent
Member directing the Trustee to credit or cause to be
credited a beneficial interest in the Regulation S
Global Note in an amount equal to the beneficial
interest in the applicable U.S. Global Note (e.g., the
Rule 144A Global Note or the Accredited Institutional
Investor Global Note) to be exchanged, (2) a written
order given in accordance with the Applicable
Procedures containing information regarding the
participant account of the Depository and the Euroclear
or Cedel Bank account to be credited with such
increase, and (3) a certificate in the form of Exhibit
B-1 hereto given by the owner of such beneficial
interest stating that the transfer of such interest has
been made in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in
accordance with Rule 903 or Rule 904 of Regulation S,
then the Trustee, as Registrar, shall instruct the
Depository to reduce or cause to be reduced the
aggregate principal amount at maturity of the
applicable U.S. Global Note and to increase or cause to
be increased the aggregate principal amount at maturity
of the applicable Regulation S Global Note by the
principal amount at maturity of the beneficial interest
in the U.S. Global Note to be exchanged, to credit or
cause to be credited to the account of the Person
specified in such instructions a beneficial interest in
the Regulation S Global Note equal to the reduction in
the aggregate principal amount at maturity of the
applicable U.S. Global Note, and to debit, or cause to
be debited, from the account of the Person making such
exchange or transfer the beneficial interest in the
U.S. Global Note that is being exchanged or
transferred.
(ii) Regulation S Global Note to U.S. Global Note. If,
at any time, an owner of a beneficial interest in a
Regulation S Global Note deposited with the Depository
or with the Note Custodian wishes to transfer its
interest in such Regulation S Global Note to (1) a
Person who is required or permitted to take delivery
thereof in the form of an interest in a Rule 144A
Global Note or (2) a Person who is required or
permitted to take delivery thereof in the form of an
interest in an Accredited Institutional Investor Global
Note, such owner shall, subject to the Applicable
Procedures, exchange or cause the exchange of such
interest for an equivalent beneficial interest in a
Rule 144A Global Note or an Accredited Institutional
Investor Global Note, as applicable, as provided in
this Section 2.06(a)(ii). Upon receipt by the Trustee
of (1) instructions from Euroclear or Cedel Bank, if
applicable, and the Depository, directing the Trustee
to credit or cause to be credited a beneficial interest
in the Rule 144A Global Note or the Accredited
Institutional Investor Global Note, as applicable,
equal to the beneficial interest in the Regulation S
Global Note to be exchanged, such instructions to
contain information regarding the participant account
with the Depository to be credited with such increase,
(2) a written order given in accordance with the
Applicable Procedures containing information regarding
the participant account of the Depository and (3) a
certificate in the form of Exhibit B-2 attached hereto
given by the owner of such beneficial interest stating
(A) if the transfer is pursuant to Rule 144A, that the
Person transferring such interest in a Regulation S
Global Note reasonably believes that the Person
acquiring such interest in a Rule 144A Global Note is a
QIB and is obtaining such beneficial interest in a
transaction meeting the requirements of Rule 144A and
any applicable blue sky or securities laws of any state
of the United States, (B) that the transfer complies
with the requirements of Rule 144A under the Securities
Act and any applicable blue sky or securities laws of
any state of the United States or (C) if the transfer
is pursuant to any other exemption from the
registration requirements of the Securities Act, that
the transfer of such interest has been made in
compliance with the transfer restrictions applicable to
the Global Notes and pursuant to and in accordance with
the requirements of the exemption claimed, such
statement to be supported by an Opinion of Counsel from
the transferee or the transferor in form reasonably
acceptable to the Issuers and to the Trustee, then the
Trustee, as Registrar, shall instruct the Depository to
reduce or cause to be reduced the aggregate principal
amount at maturity of such Regulation S Global Note and
to increase or cause to be increased the aggregate
principal amount at maturity of the applicable Rule
144A Global Note or the Accredited Institutional
Investor Global Note, as applicable, by the principal
amount at maturity of the beneficial interest in the
Regulation S Global Note to be exchanged, and the
Trustee, as Registrar, shall instruct the Depository,
concurrently with such reduction, to credit or cause to
be credited to the account of the Person specified in
such instructions a beneficial interest in the
applicable Rule 144A Global Note or the Accredited
Institutional Investor Global Note, as applicable,
equal to the reduction in the aggregate principal
amount at maturity of such Regulation S Global Note and
to debit or cause to be debited from the account of the
Person making such transfer the beneficial interest in
the Regulation S Global Note that is being transferred.
(iii) Rule 144A Global Note to Accredited Institutional
Investor Global Note; Accredited Institutional Investor
Global Note to Rule 144A Global Note. If, at any time,
an owner of a beneficial interest in a Rule 144A
Global Note deposited with the Depository or with the
Note Custodian wishes to transfer its interest in such
Rule 144A Global Note to a Person who is required or
permitted to take delivery thereof in the form of an
interest in an Accredited Institutional Investor Global
Note or an owner of an Accredited Institutional
Investor Global Note wishes to transfer its interest in
such Accredited Institutional Investor Global Note to a
Person who is required or permitted to take delivery
thereof in the form of an interest in a Rule 144A
Global Note, such owner shall, subject to the
Applicable Procedures, exchange or cause the exchange
of such interest for an equivalent beneficial interest
in a Rule 144A Global Note or an Accredited
Institutional Investor Global Note, as applicable, as
provided in this Section 2.06(a)(iii). Upon receipt by
the Trustee of (1) instructions from the Depository,
directing the Trustee to credit or cause to be credited
a beneficial interest in the Rule 144A Global Note or
the Accredited Institutional Investor Global Note, as
applicable, equal to the beneficial interest in the
Rule 144A Global Note or Accredited Institutional
Investor Global Note to be exchanged, such instructions
to contain information regarding the participant
account with the Depository to be credited with such
increase, (2) a written order given in accordance with
the Applicable Procedures containing information
regarding the participant account of the Depository and
(3) a certificate in the form of Exhibit B-3 attached
hereto given by the owner of such beneficial interest
stating (A) if the transfer is pursuant to Rule 144A,
that the Person transferring such interest in an
Accredited Institutional Investor Global Note
reasonably believes that the Person acquiring such
interest in a Rule 144A Global Note is a QIB and is
obtaining such beneficial interest in a transaction
meeting the requirements of Rule 144A and any
applicable blue sky or securities laws of any state of
the United States, (B) that the transfer complies with
the requirements of Rule 144A under the Securities Act
and any applicable blue sky or securities laws of any
state of the United States or (C) if the transfer is
pursuant to any other exemption from the registration
requirements of the Securities Act, that the transfer
of such interest has been made in compliance with the
transfer restrictions applicable to the Global Notes
and pursuant to and in accordance with the requirements
of the exemption claimed, such statement to be
supported by an Opinion of Counsel from the transferee
or the transferor in form reasonably acceptable to the
Issuers and to the Trustee, then the Trustee, as
Registrar, shall instruct the Depository to reduce or
cause to be reduced the aggregate principal amount at
maturity of such Rule 144A Global Note or Accredited
Institutional Investor Global Note and to increase or
cause to be increased the aggregate principal amount at
maturity of the applicable Rule 144A Global Note or the
Accredited Institutional Investor Global Note, as
applicable, by the principal amount at maturity of the
beneficial interest in the Rule 144A Global Note or
Accredited Institutional Investor Global Note to be
exchanged, and the Trustee, as Registrar, shall
instruct the Depository, concurrently with such
reduction, to credit or cause to be credited to the
account of the Person specified in such instructions a
beneficial interest in the applicable Rule 144A Global
Note or the Accredited Institutional Investor Global
Note, as applicable, equal to the reduction in the
aggregate principal amount at maturity of such Rule
144A Global Note or the Accredited Institutional
Investor Global Note and to debit or cause to be
debited from the account of the Person making such
transfer the beneficial interest in the Rule 144A
Global Note or the Accredited Institutional Investor
Global Note that is being transferred.
(b) Transfer and Exchange of Definitive Notes. When Definitive
Notes are presented by a Holder to the Registrar with a request:
(x) to register the transfer of the Definitive Notes; or
(y) to exchange such Definitive Notes for an equal
principal amount of Definitive Notes of other
authorized denominations, the Registrar shall register
the transfer or make the exchange as requested if its
requirements for such transactions are met; provided,
however, that the Definitive Notes presented or
surrendered for register of transfer or exchange:
(i) shall be duly endorsed or accompanied by a
written instruction of transfer in form
satisfactory to the Registrar duly executed by
such Holder or by his attorney, duly authorized
in writing; and
(ii) in the case of a Definitive Note that is a
Transfer Restricted Security, such request shall
be accompanied by the following additional
information and documents, as applicable:
(A) if such Transfer Restricted Security is
being delivered to the Registrar by a
Holder for registration in the name of
such Holder, without transfer, a
certification to that effect from such
Holder (in substantially the form of
Exhibit B-4 hereto); or
(B) if such Transfer Restricted Security is
being transferred to a QIB in accordance
with Rule 144A under the Securities Act or
pursuant to an exemption from registration
in accordance with Rule 144 under the
Securities Act or pursuant to an effective
registration statement under the
Securities Act, a certification to that
effect from such Holder (in substantially
the form of Exhibit B-4 hereto); or
(C) if such Transfer Restricted Security is
being transferred in reliance on another
exemption from the registration
requirements of the Securities Act, a
certification to that effect from such
Holder (in substantially the form of
Exhibit B-4 hereto) and an Opinion of
Counsel from such Holder or the transferee
reasonably acceptable to the Issuers and
to the Registrar to the effect that such
transfer is in compliance with the
Securities Act.
(c) Transfer of a Beneficial Interest in a Global Note for a
Definitive Note.
(i) Any Person having a beneficial interest in a Global
Note (other than a Regulation S Temporary Global Note)
may upon request, subject to the Applicable Procedures,
exchange such beneficial interest for a Definitive
Note. Upon receipt by the Trustee of written
instructions or such other form of instructions as is
customary for the Depository (or Euroclear or Cedel
Bank, as applicable), from the Depository or its
nominee on behalf of any Person having a beneficial
interest in a Global Note, and, in the case of a
Transfer Restricted Security, the following additional
information and documents (all of which may be
submitted by facsimile):
(A) if such beneficial interest is being
transferred to the Person designated by
the Depository as being the beneficial
owner, a certification to that effect from
such Person (in substantially the form of
Exhibit B-5 hereto); or
(B) if such beneficial interest is being
transferred to a QIB in accordance with
Rule 144A under the Securities Act or
pursuant to an exemption from registration
in accordance with Rule 144 under the
Securities Act or pursuant to an effective
registration statement under the
Securities Act, a certification to that
effect from the transferor (in
substantially the form of Exhibit B-5
hereto); or
(C) if such beneficial interest is being
transferred in reliance on another
exemption from the registration
requirements of the Securities Act, a
certification to that effect from the
transferor (in substantially the form of
Exhibit B-5 hereto) and an Opinion of
Counsel from the transferee or transferor
reasonably acceptable to the Issuers and
to the Registrar to the effect that such
transfer is in compliance with the
Securities Act,
the Company shall execute and, the Trustee shall
authenticate and deliver to the transferee a Definitive
Note in the appropriate principal amount.
(ii) Definitive Notes issued in exchange for a beneficial
interest in a Global Note (other than a Regulation S
Temporary Global Note) pursuant to this Section 2.06(d)
shall be registered in such names and in such
authorized denominations as the Depository, pursuant to
instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Definitive Notes to the Persons in
whose names such Senior Notes are so registered.
(d) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in subsection (f) of this Section 2.06), a Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository or
a nominee of such successor Depository.
(e) Transfer and Exchange of a Definitive Note for a Beneficial
Interest in a Global Note. A Definitive Note may not be exchanged for a
beneficial interest in a Global Note except, subject to the Applicable
Procedures, upon satisfaction of the requirements set forth below. Upon receipt
by the Trustee of a Definitive Note, duly endorsed or accompanied by appropriate
instruments of transfer, in form satisfactory to the Trustee, and, in the case
of a Transfer Restricted Security, the following additional information and
documents (all of which may be submitted by facsimile):
(i) if such beneficial interest is being transferred to the
Person designated by the Depository as being the
beneficial owner, a certification to that effect from
such Person (in substantially the form of Exhibit B-6
hereto);
(ii) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities
Act or pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act or
pursuant to an effective registration statement under
the Securities Act, a certification to that effect from
the transferor (in substantially the form of Exhibit
B-6 hereto); or
(iii) if such beneficial interest is being transferred in
reliance on any other exemption from the registration
requirements of the Securities Act, a certification to
that effect from the transferor (in substantially the
form of Exhibit B-6 hereto) and an Opinion of Counsel
from the transferee or the transferor reasonably
acceptable to the Issuers and to the Registrar to the
effect that such transfer is in compliance with the
Securities Act,
the Trustee shall cancel such Definitive Note in accordance with Section 2.11
hereof and cause, or direct the Note Custodian to cause, in accordance with the
standing instructions and procedures existing between the Depository and the
Note Custodian, the aggregate principal amount of Senior Notes represented by
the applicable Global Note (e.g., the Rule 144A Global Note, the Accredited
Institutional Investor Global Note or the Regulation S Permanent Global Note, as
the case may be) to be increased accordingly. If none of the applicable Global
Notes are then outstanding, the Issuers shall execute and the Trustee shall
authenticate a new applicable Global Note in the appropriate principal amount.
(f) Authentication of Definitive Notes in Absence of Depository.
If at any time:
(i) the Depository for the Senior Notes notifies the
Issuers that the Depository is unwilling or unable to
continue as Depository for the Global Notes and a
successor Depository for the Global Notes is not
appointed by the Issuers within 90 days after delivery
of such notice; or
(ii) the Issuers at their sole discretion, notify the
Trustee in writing that they elect to cause the
issuance of Definitive Notes under this Indenture,
then the Issuers shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.02 hereof, authenticate and
deliver, Definitive Notes in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
(g) Legends.
(i) Except as permitted by the following paragraphs (ii)
and (iii), each Senior Note certificate evidencing
Global Notes and Definitive Notes (and all Senior Notes
issued in exchange therefor or substitution thereof)
shall bear legends in substantially the following form:
THE SENIOR NOTES EVIDENCED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
(A) BY THE PURCHASER (1) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES
ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN
OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE
904 OF REGULATION S UNDER THE SECURITIES ACT, (3)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (B) BY
SUBSEQUENT INVESTORS AS SET FORTH IN (A) ABOVE OR TO
INSTITUTIONAL ACCREDITED INVESTORS IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES AND OTHER JURISDICTIONS.
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security
represented by a Global Note) pursuant to Rule 144
under the Securities Act or pursuant to an effective
registration statement under the Securities Act:
(A) in the case of any Transfer Restricted Security
that is a Definitive Note, the Registrar shall
permit the Holder thereof to exchange such
Transfer Restricted Security for a Definitive
Note that does not bear the legend set forth in
(i) above and rescind any restriction on the
transfer of such Transfer Restricted Security
upon receipt of a certification from the
transferring holder substantially in the form of
Exhibit B-4 hereto, and;
(B) in the case of any Transfer Restricted
Security represented by a Global Note, such
Transfer Restricted Security shall not be
required to bear the legend set forth in (i)
above, but shall continue to be subject to the
provisions of Section 2.06(a) and (b) hereof;
provided, however, that with respect to any
request for an exchange of a Transfer Restricted
Security that is represented by a Global Note
for a Definitive Note that does not bear the
legend set forth in (i) above, which request
is made in reliance upon Rule 144, the Holder
thereof shall certify in writing to the
Registrar that such request is being made
pursuant to Rule 144 (such certification
to be substantially in the form of Exhibit B-4
hereto).
(iii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security
represented by a Global Note) in reliance on any
exemption from the registration requirements of the
Securities Act (other than exemptions pursuant to Rule
144A or Rule 144 under the Securities Act) in which the
Holder or the transferee provides an Opinion of Counsel
to the Issuers and the Registrar in form and substance
reasonably acceptable to the Issuers and the Registrar
(which Opinion of Counsel shall also state that the
transfer restrictions contained in the legend are no
longer applicable):
(A) in the case of any Transfer Restricted Security
that is a Definitive Note, the Registrar shall
permit the Holder thereof to exchange such
Transfer Restricted Security for a Definitive
Note that does not bear the legend set forth in
(i) above and rescind any restriction on the
transfer of such Transfer Restricted Security;
and
(B) in the case of any Transfer Restricted Security
represented by a Global Note, such Transfer
Restricted Security shall not be required to bear
the legend set forth in (i) above, but shall
continue to be subject to the provisions of
Section 2.06(a) and (b) hereof.
(iv) Notwithstanding the foregoing, upon consummation of the
Exchange Offer in accordance with the Registration
Rights Agreement, the Issuers shall issue and, upon
receipt of an authentication order in accordance with
Section 2.02 hereof, the Trustee shall authenticate
Series B Senior Notes in exchange for Series A Senior
Notes accepted for exchange in the Exchange Offer,
which Series B Senior Notes shall not bear the legend
set forth in (i) above, and the Registrar shall rescind
any restriction on the transfer of such Series B Senior
Notes, in each case unless the Holder of such Series A
Senior Notes is either (A) a broker-dealer, (B) a
Person participating in the distribution of the Series
A Senior Notes or (C) a Person who is an affiliate (as
defined in Rule 144A) of the Issuers.
(h) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in Global Notes have been exchanged for Definitive
Notes, redeemed, repurchased or cancelled, all Global Notes shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for Definitive Notes, redeemed, repurchased or cancelled, the
principal amount of Senior Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note, by the
Trustee or the Note Custodian, at the direction of the Trustee, to reflect such
reduction.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and
exchanges, the Issuers shall execute and the
Trustee shall authenticate Definitive Notes and
Global Notes at the Registrar's request.
(ii) No service charge shall be made to a Holder for
any registration of transfer or exchange, but the
Issuers may require payment of a sum sufficient
to cover any transfer tax or similar governmental
charge payable in connection therewith (other
than any such transfer taxes or similar
governmental charge payable upon exchange or
transfer pursuant to Sections 3.07, 4.10, 4.15
and 9.05 hereto).
(iii) The Registrar shall not be required to register
the transfer of or exchange any Senior Note
selected for redemption in whole or in part,
except the unredeemed portion of any Senior Note
being redeemed in part.
(iv) All Definitive Notes and Global Notes issued upon
any registration of transfer or exchange of
Definitive Notes or Global Notes shall be the
valid obligations of the Issuers, evidencing the
same debt, and entitled to the same benefits
under this Indenture, as the Definitive Notes or
Global Notes surrendered upon such registration
of transfer or exchange.
(v) The Issuers shall not be required:
(A) to issue, to register the transfer of or
to exchange Senior Notes during a period
beginning at the opening of business 15
days before the day of any selection of
Senior Notes for redemption under Section
3.02 hereof and ending at the close of
business on the day of selection; or
(B) to register the transfer of or to exchange
any Senior Note so selected for redemption
in whole or in part, except the unredeemed
portion of any Senior Note being redeemed
in part; or
(C) to register the transfer of or to exchange
a Senior Note between a record date and
the next succeeding interest payment date.
(vi) Prior to due presentment for the registration of
a transfer of any Senior Note, the Trustee, any
Agent and the Issuers may deem and treat the
Person in whose name any Senior Note is
registered as the absolute owner of such Senior
Note for the purpose of receiving payment of
principal of and interest on such Senior Notes,
and neither the Trustee, any Agent nor the
Issuers shall be affected by notice to the
contrary.
(vii) The Trustee shall authenticate Definitive
Notes and Global Notes in accordance with
the provisions of Section 2.02 hereof.
Section 2.07. Replacement Senior Notes.
If any mutilated Senior Note is surrendered to the Trustee, or the
Issuers and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Senior Note, the Issuers shall issue and the
Trustee shall authenticate a replacement if the Trustee's requirements are met.
If required by the Trustee or the Issuers, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Issuers to
protect the Issuers, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Senior Note is replaced. The Issuers
may charge for any expenses in replacing a Senior Note.
Every replacement Senior Note is an additional obligation of the
Issuers and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Senior Notes duly issued hereunder.
Section 2.08. Outstanding Senior Notes.
The Senior Notes outstanding at any time are all the Senior Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, and those described in this Section as not outstanding.
Except as set forth in Section 2.09 hereof, a Senior Note does not cease to be
outstanding because an Issuer or an Affiliate of an Issuer holds the Senior
Note.
If a Senior Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Senior Note is held by a bona fide purchaser.
If the principal amount of any Senior Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than an Issuer, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Senior Notes payable on that date, then on and after that date
such Senior Notes shall be deemed to be no longer outstanding and shall cease to
accrue interest.
Section 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount
of Senior Notes have concurred in any direction, waiver or consent, Senior Notes
owned by an Issuer or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuers, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Senior Notes that a Trustee knows are so
owned shall be so disregarded.
Section 2.10. Temporary Senior Notes.
Until definitive Senior Notes are ready for delivery, the Issuers
may prepare and the Trustee shall authenticate temporary Senior Notes upon a
written order of the Issuers signed by an Officer of the Managing General
Partner on behalf of the Company (or the Company if the Company is a
corporation) and of Olympus Capital. Temporary Senior Notes shall be
substantially in the form of definitive Senior Notes but may have variations
that the Company considers appropriate for temporary Senior Notes and as shall
be reasonably acceptable to the Trustee. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Senior Notes in
exchange for temporary Senior Notes.
Holders of temporary Senior Notes shall be entitled to all of the
benefits of this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Senior Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Senior Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Senior Notes surrendered
for registration of transfer, exchange, payment, replacement or cancellation and
shall dispose of cancelled Senior Notes (subject to the record retention
requirement of the Exchange Act in accordance with its standard disposition
policies in effect from time to time). Certification of the destruction of all
cancelled Senior Notes shall be delivered to the Issuers. The Issuers may not
issue new Senior Notes to replace Senior Notes that it has paid or that have
been delivered to the Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Issuers default in a payment of interest on the Senior
Notes, they shall pay the defaulted interest in any lawful manner plus, to the
extent lawful, interest payable on the defaulted interest, to the Persons who
are Holders on a subsequent special record date, in each case at the rate
provided in the Senior Notes and in Section 4.01 hereof. The Issuers shall
notify the Trustee in writing of the amount of defaulted interest proposed to be
paid on each Senior Note and the date of the proposed payment. The Issuers shall
fix or cause to be fixed each such special record date and payment date,
provided that no such special record date shall be less than 10 days prior to
the related payment date for such defaulted interest. At least 15 days before
the special record date, the Issuers (or, upon the written request of the
Issuers, the Trustee in the name and at the expense of the Issuers) shall mail
or cause to be mailed to Holders a notice that states the special record date,
the related payment date and the amount of such interest to be paid.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
If the Company elects to redeem Senior Notes pursuant to the
optional redemption provisions of Section 3.07 hereof, it shall furnish to the
Trustee, at least 30 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the clause of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Senior Notes to be redeemed and (iv) the redemption price.
Section 3.02. Selection of Senior Notes to Be Redeemed.
If less than all of the Senior Notes are to be redeemed at any
time, the Trustee shall select the Senior Notes to be redeemed among the Holders
of the Senior Notes in compliance with the requirements of the principal
national securities exchange, if any, on which the Senior Notes are listed or,
if the Senior Notes are not so listed, on a pro rata basis, by lot or in
accordance with any other method the Trustee considers fair and appropriate. In
the event of partial redemption by lot, the particular Senior Notes to be
redeemed shall be selected, unless otherwise provided herein, not less than 30
nor more than 60 days prior to the redemption date by the Trustee from the
outstanding Senior Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the
Senior Notes selected for redemption and, in the case of any Senior Note
selected for partial redemption, the principal amount thereof to be redeemed.
Senior Notes and portions of Senior Notes selected shall be in amounts of $1,000
or whole multiples of $1,000; except that if all of the Senior Notes of a Holder
are to be redeemed, the entire outstanding amount of Senior Notes held by such
Holder, even if not a multiple of $1,000, shall be redeemed. Except as provided
in the preceding sentence, provisions of this Indenture that apply to Senior
Notes called for redemption also apply to portions of Senior Notes called for
redemption.
Section 3.03. Notice of Redemption.
Subject to the provisions of Section 3.09 hereof, at least 30 days
but not more than 60 days before a redemption date, the Company shall mail or
cause to be mailed, by first class mail, a notice of redemption to each Holder
whose Senior Notes are to be redeemed at its registered address.
The notice shall identify the Senior Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Senior Note is being redeemed in part, the portion of
the principal amount of such Senior Note to be redeemed and that, after
the redemption date upon surrender of such Senior Note, a new Senior Note
or Senior Notes in principal amount equal to the unredeemed portion shall
be issued upon cancellation of the original Senior Note;
(d) the name and address of the Paying Agent;
(e) that Senior Notes called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Senior Notes called for redemption ceases to accrue
on and after the redemption date;
(g) the paragraph of the Senior Notes and/or Section of this
Indenture pursuant to which the Senior Notes called for redemption are
being redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on
the Senior Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Senior Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05. Deposit of Redemption Price.
One Business Day prior to the redemption date, the Company shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption price of and accrued interest and Liquidated Damages, if any, on all
Senior Notes to be redeemed on that date. The Trustee or the Paying Agent shall
promptly return to the Company any money deposited with the Trustee or the
Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued interest and Liquidated Damages, if any, on,
all Senior Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Senior Notes or the portions of Senior Notes called for redemption. If a
Senior Note is redeemed on or after an interest record date but on or prior to
the related interest payment date, then any accrued and unpaid interest shall be
paid to the Person in whose name such Senior Note was registered at the close of
business on such record date. If any Senior Note called for redemption shall not
be so paid upon surrender for redemption because of the failure of the Company
to comply with the preceding paragraph, interest shall be paid on the unpaid
principal, from the redemption date until such principal is paid, and to the
extent lawful on any interest not paid on such unpaid principal, in each case at
the rate provided in the Senior Notes and in Section 4.01 hereof.
Section 3.06. Senior Notes Redeemed in Part.
Upon surrender of a Senior Note that is redeemed in part, the
Company shall issue and, upon the Company's written request, the Trustee shall
authenticate for the Holder at the expense of the Company a new Senior Note
equal in principal amount to the unredeemed portion of the Senior Note
surrendered.
Section 3.07. Optional Redemption.
(a) Except as set forth in clause (b) of this Section 3.07, the
Company shall not have the option to redeem the Senior Notes pursuant to this
Section 3.07 prior to November 15, 2001. Thereafter, the Company shall have the
option to redeem the Senior Notes, in whole or in part, at the redemption prices
(expressed as percentages of principal amount) set forth below, plus accrued and
unpaid interest and Liquidated Damages thereon, if any, to the applicable
redemption date, if redeemed during the twelve-month period beginning on
November 15 of the years indicated below:
Year Percentage
2001........................................................ 105.3125%
2002........................................................ 103.5417%
2003........................................................ 101.7708%
2004 and thereafter......................................... 100.0000%
(b) Notwithstanding the provisions of clause (a) of this Section
3.07, at any time during the first 36 months after the date of the Offering
Circular, the Company may redeem up to an aggregate of $70 million in principal
amount of Senior Notes at a redemption price of 110.625% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages thereon, if
any, to the redemption date, with the net cash proceeds of an Initial Public
Offering of Equity Interests in the Company; provided that at least $130 million
in aggregate principal amount of the Senior Notes remain outstanding immediately
after the occurrence of such redemption, and provided, further that such
redemption occurs within 30 days of the date of the closing of such Initial
Public Offering.
(c) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
Section 3.08. Mandatory Redemption.
Except as set forth under Sections 4.10 and 4.15 hereof, the
Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Senior Notes.
Section 3.09. Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Company
shall be required to commence an offer to all Holders to purchase Senior Notes
(an "Asset Sale Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "Offer Period"). No later than
five Business Days after the termination of the Offer Period (the "Purchase
Date"), the Company shall purchase the principal amount of Senior Notes required
to be purchased pursuant to Section 4.10 hereof (the "Offer Amount") or, if less
than the Offer Amount has been tendered, all Senior Notes tendered in response
to the Asset Sale Offer. Payment for any Senior Notes so purchased shall be made
in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on
or before the related interest payment date, any accrued and unpaid interest and
Liquidated Damages, if any, shall be paid to the Person in whose name a Senior
Note is registered at the close of business on such record date, and no
additional interest shall be payable to Holders who tender Senior Notes pursuant
to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall
send, by first class mail, a notice to each of the Holders, with a copy to the
Trustee. The notice shall contain all instructions and materials necessary to
enable such Holders to tender Senior Notes pursuant to the Asset Sale Offer. The
Asset Sale Offer shall be made to all Holders. The notice, which shall govern
the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer
shall remain open;
(b) the Offer Amount, the purchase price and the Purchase
Date;
(c) that any Senior Note not tendered or accepted for
payment shall continue to accrue interest;
(d) that, unless the Company defaults in making such payment,
any Senior Note accepted for payment pursuant to the Asset Sale Offer
shall cease to accrue interest after the Purchase Date;
(e) that Holders electing to have a Senior Note purchased
pursuant to an Asset Sale Offer may only elect to have all of such Senior
Note purchased and may not elect to have only a portion of such Senior
Note purchased;
(f) that Holders electing to have a Senior Note purchased
pursuant to any Asset Sale Offer shall be required to surrender the
Senior Note, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Senior Note completed, or transfer by book-entry
transfer, to the Company, a depositary, if appointed by the Company, or a
Paying Agent at the address specified in the notice at least three days
before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election
if the Company, the depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Senior Note the Holder delivered for
purchase and a statement that such Holder is withdrawing his election to
have such Senior Note purchased;
(h) that, if the aggregate principal amount of Senior Notes
surrendered by Holders exceeds the Offer Amount, the Company shall select
the Senior Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Company so that only
Senior Notes in denominations of $1,000, or integral multiples thereof,
shall be purchased); and
(i) that Holders whose Senior Notes were purchased only in
part shall be issued new Senior Notes equal in principal amount to the
unpurchased portion of the Senior Notes surrendered (or transferred by
book-entry transfer).
On the Purchase Date for any Offer, the Company shall (i) accept
for payment the maximum principal amount of Senior Notes tendered pursuant to
such Offer than can be purchased out of Excess Proceeds from such Asset Sales,
(ii) deposit with the Paying Agent the aggregate purchase price of all Senior
Notes accepted for payment and any accrued and unpaid interest and Liquidated
Damages, if any, on such Senior Notes as of the Purchase Date, and (iii) deliver
or cause to be delivered to the Trustee all Senior Notes tendered pursuant to
the Offer. If less than all Senior Notes tendered pursuant to any Offer are
accepted for payment by the Company for any reason, selection of the Senior
Notes to be purchased by the Trustee will be in compliance with the requirements
of the principal national securities exchange, if any, on which the Senior Notes
are listed or, if the Senior Notes are not so listed, by lot or by such method
as the Trustee shall deem fair and appropriate; provided that Senior Notes
accepted for payment in part shall only be purchased in integral multiples of
$1,000. The Paying Agent will promptly mail to each Holder of Senior Notes
accepted for payment an amount equal to the purchase price for such Senior Notes
plus any accrued and unpaid interest and Liquidated Damages thereon, if any, and
the Trustee will promptly authenticate and mail to such Holder of Senior Notes
accepted for payment in part a new Senior Note equal in principal amount to any
unpurchased portion of the Senior Notes, and any Senior Note not accepted for
payment in whole or in part shall be promptly returned to the Holder of such
Senior Note. On and after a Purchase Date, interest will cease to accrue on the
Senior Notes accepted for payment. The Company shall announce the results of the
Offer to Holders of the Senior Notes on or as soon as practicable after the
Purchase Date.
Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the provisions
of Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Senior Notes.
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on the Senior Notes on the dates and in the manner
provided in the Senior Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Company
or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date
money deposited by the Company in immediately available funds and designated for
and sufficient to pay all principal, premium, if any, and interest then due. The
Company shall pay all Liquidated Damages, if any, in the same manner on the
dates and in the amounts set forth in the Registration Rights Agreement.
The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal at the rate equal
to 1% per annum in excess of the then applicable interest rate on the Senior
Notes to the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Liquidated Damages, if any (without regard to any applicable grace
period) at the same rate to the extent lawful.
Section 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Senior Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Senior Notes and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Senior Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.03.
Section 4.03. Reports.
(a) Whether or not required by the rules and regulations of the
SEC, so long as any Senior Notes are outstanding, the Company shall furnish to
the Holders and to the Trustee (i) all quarterly and annual financial
information that would be required to be contained in a filing with the SEC on
Forms 10-Q and 10-K if the Company were required to file such forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and, with respect to the annual information only, a report thereon
by the Company's certified independent accountants and (ii) all reports that
would be required to be filed with the SEC on Form 8-K if the Company were
required to file such reports. In addition, whether or not required by the rules
and regulations of the SEC, the Company shall file a copy of all such
information with the SEC for public availability (unless the SEC will not accept
such a filing) and shall promptly make such information available to all
securities analysts and prospective investors who request it in writing. The
Company shall at all times comply with TIA ss. 314(a).
(b) For so long as any Transfer Restricted Securities remain
outstanding, the Issuers shall furnish to all Holders and prospective purchasers
of the Senior Notes designated by the Holders of Transfer Restricted Securities,
promptly upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act.
Section 4.04. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90 days after
the end of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Company is
taking or proposes to take with respect thereto) and that to the best of his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Senior Notes
is prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto. Such
Officers' Certificate will also contain a statement with respect to all
Restricted Payments made and transactions with Affiliates enforced into.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Senior Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.
Section 4.05. Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate proceedings
or where the failure to effect such payment is not adverse in any material
respect to the Holders of the Senior Notes.
Section 4.06. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it shall not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as though
no such law has been enacted.
Section 4.07. Restricted Payments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make
any distribution on account of the Company's Equity Interests or to the direct
or indirect holders of the Company's Equity Interests in their capacity as such
(other than dividends or distributions payable in Equity Interests (other than
Disqualified Interests) of the Company); (ii) purchase, redeem or otherwise
acquire or retire for value any Equity Interests of the Company or any direct or
indirect parent of the Company or other Affiliate of the Company that is not a
Restricted Subsidiary; (iii) make any principal payment on, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness that is pari
passu with or is subordinated to the Senior Notes (other than Senior Notes);
(iv) make any payment to Adelphia or any of its Affiliates (excluding the
Company and its Restricted Subsidiaries) in respect of Management Fees; (v) make
any principal, premium or interest payment on, or purchase, redeem, defease or
otherwise acquire or retire for value any of the "Senior Debt" under the
Partnership Agreement or any Indebtedness of the Company or any of its
Restricted Subsidiaries that is held by Adelphia, FPL Group or any Affiliate or
(vi) make any Restricted Investment (all such payments and other actions set
forth in clauses (i) through (vi) above being collectively referred to as
"Restricted Payments"), unless, at the time of and after giving effect to such
Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable period, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Debt
to Cash Flow Ratio test set forth in the first paragraph of Section 4.09
hereof; and
(c) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments declared or made after June 30, 1996
(excluding Restricted Payments permitted by clauses (ii), (iii), (iv) and
(v) of the next succeeding paragraph), shall not exceed, at the date of
determination, the sum of (1) an amount, if positive (otherwise, zero),
equal to the Company's Consolidated Cash Flow from June 30, 1996 to the
end of the Company's most recently ended full fiscal quarter for which
internal financial statements are available, taken as a single accounting
period, less the product of 1.4 times the Company's Consolidated Interest
Expense from June 30, 1996 to the end of the Company's most recently
ended full fiscal quarter for which internal financial statements are
available, taken as a single accounting period, plus (2) 100% of the
aggregate amount of Capital Contributions received by the Company after
June 30, 1996 (other than from (i) sales of Disqualified Interests, and
(ii) Equity Interests sold to any of the Company's Subsidiaries) plus (3)
100% of the aggregate net cash proceeds received by the Company from the
issuance or sale since the date of the Indenture of debt securities or
Disqualified Interests of the Company issued after the date of the
Indenture that have been converted into Equity Interests of the Company
(other than Equity Interests (or convertible debt securities) sold to a
Subsidiary of the Company, and other than Disqualified Interests or debt
securities that have been converted into Disqualified Interests) plus
(iv) to the extent that any Restricted Investment that was made by the
Company after the date of the Indenture is sold by the Company for cash
or otherwise liquidated or repaid for cash, the amount of such cash
received (less the cost of disposition, if any).
The foregoing provisions will not prohibit: (i) the payment of any
dividend or distribution within 60 days after the date of declaration thereof,
if at the date of declaration such payment would have complied with the
provisions of this Indenture; (ii) the redemption, repurchase, retirement or
other acquisition of any Equity Interests of the Company in exchange for, or out
of the proceeds of, the substantially concurrent sale (other than to a
Restricted Subsidiary of the Company) of other Equity Interests of the Company
(other than any Disqualified Interests); provided, that the amount of any such
net cash proceeds that are utilized for any such redemption, repurchase,
retirement or other acquisition shall be excluded from clause (c)(2) of the
preceding paragraph; (iii) the defeasance, redemption or repurchase of
subordinated Indebtedness with the net cash proceeds, from or in exchange for,
an incurrence of Permitted Refinancing Indebtedness or the substantially
concurrent issuance (other than to a Restricted Subsidiary of the Company) of
Equity Interests of the Company (other than Disqualified Interests); provided,
that the amount of any such net cash proceeds that are utilized for any such
redemption, repurchase, retirement or other acquisition shall be excluded from
clause (c)(2) of the preceding paragraph; (iv) the payment of Management Fees to
Adelphia in an amount not to exceed the amount permitted to be paid under the
terms of the Partnership Agreement in effect on the Issuance Date or (v)
Restricted Investment not otherwise permitted by this Section 4.07 not to exceed
$10 million in the aggregate; provided that, Restricted Payments under clauses
(iv) and (v) shall be permitted only if no Default or Event of Default has
occurred and is continuing.
The Board of Directors may designate any Restricted Subsidiary to
be an Unrestricted Subsidiary if (i) after giving effect to such designation, no
Default or Event of Default shall have occurred and be continuing, (ii) such
Subsidiary after such designation does not have any Indebtedness other than
Non-recourse Debt and (iii) after giving effect to such designation, the Company
could incur $1.00 of Indebtedness pursuant to Section 4.09. For purposes of
making such determination, all outstanding Investments by the Company and its
Restricted Subsidiaries in the Subsidiary so designated will be deemed to be
Restricted Payments at the time of such designation and will reduce the amount
available for Restricted Payments under the first paragraph of this Section. All
such outstanding Investments will be deemed to constitute Investments in an
amount equal to the greater of (a) the net book value of such Investments at the
time of designation and (b) the fair market value of such Investments at the
time of such designation. Such designation will only be permitted if such
Restricted Payment would be permitted at such time and if such Restricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
The Board of Directors may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that such designation shall
be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any
outstanding Indebtedness of such Subsidiary and that following such designation,
no Default or Event of Default shall have occurred and be continuing.
The amount of all Restricted Payments (other than cash) shall be
the fair market value (evidenced by a resolution of the Board of Directors set
forth in an Officers' Certificate delivered to the Trustee) on the date of the
Restricted Payment of the asset(s) proposed to be transferred by the Company or
such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment.
In each quarterly or annual report to the Trustee, the Company
shall deliver to the Trustee an Officers' Certificate stating the amounts of all
Restricted Payments during the applicable prior period, and whether such
Restricted Payments were permitted and setting forth the basis upon which the
calculations required by Section 4.07 were computed, which calculations maybe
based upon the Company's latest available financial statements.
Section 4.08. Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to (a)(i) pay dividends or make any other distributions to
the Company or any of its Restricted Subsidiaries (A) on its Equity Interests or
(B) with respect to any other interest or participation in, or measured by, its
profits or (ii) pay any Indebtedness owed to the Company or any of its
Restricted Subsidiaries, (b) make loans or advances to the Company or any of its
Restricted Subsidiaries or (c) transfer any of its properties or assets to the
Company or any of its Restricted Subsidiaries, except for such encumbrances or
restrictions existing under or by reason of (i) provisions in instruments
governing Indebtedness permitted to be incurred under this Indenture, provided
that such provisions are, in the reasonable judgment of the Company, no more
restrictive than similar provisions in debt or credit instruments then available
to other companies in a similar line of business with a comparable credit risk,
(ii) the Indenture, the Senior Notes and the instruments or agreements governing
the Existing Indebtedness, (iii) applicable law, (iv) customary non-assignment
provisions in leases entered into in the ordinary course of business and
consistent with past practices, or (v) the partnership agreements of the
Restricted Subsidiaries as in effect on the date of the Indenture.
Section 4.09. Incurrence of Indebtedness and Issuance of Disqualified
Interests
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect to
(collectively, "incur") any Indebtedness (including Acquired Debt) and the
Company will not issue any Disqualified Interests and will not permit any of its
Restricted Subsidiaries to issue any Disqualified Interests; provided, however,
that the Company or its Restricted Subsidiaries may incur Indebtedness
(including Acquired Debt) or issue Disqualified Interests if the Company's Debt
to Cash Flow Ratio at the time of such incurrence of Indebtedness, after giving
pro forma effect to such incurrence or issuance as of such date and to the use
of proceeds therefrom as if the same had occurred at the beginning of the most
recently ended fiscal quarter period of the Company for which internal financial
statements are available, would have been no greater than 7.0 to 1.0 for any
Indebtedness incurred on or prior to November 15, 1998 and 6.5 to 1.0 for any
Indebtedness incurred thereafter.
The foregoing limitations shall not apply to:
(a) the incurrence by the Company of Indebtedness represented by
the Senior Notes;
(b) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in
exchange for, or the net proceeds of which are used to
extend, refinance, renew, replace, defease or refund
Indebtedness that was permitted by the first paragraph of
this Section 4.09 or clauses (a), (b) or (c) herein;
(c) the incurrence by the Company and its Restricted Subsidiaries
of the Existing Indebtedness;
(d) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among
the Company or any of its Restricted Subsidiaries; provided,
however, that (a) if the Company is the obligor on such
Indebtedness, such Indebtedness is expressly contractually
subordinated in right of payment to the prior payment in full
in cash of all Obligations with respect to the Senior Notes
and, (b)(1) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by
a Person other than the Company or a Restricted Subsidiary
and (2) any sale or other transfer of any such Indebtedness
to a Person that is not either the Company or a Restricted
Subsidiary shall be deemed, in each case, to constitute an
incurrence of such Indebtedness by the Company or such
Restricted Subsidiary, as the case may be;
(e) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the
purpose of fixing or hedging interest rate risk with respect
to any floating rate Indebtedness of such Person that is
permitted by the terms of the Indenture to be outstanding;
(f) the incurrence of Indebtedness by the Company or any
Restricted Subsidiary of Indebtedness (in addition to
Indebtedness otherwise permitted by this section) in an
aggregate principal amount at any time outstanding under this
clause (f) not to exceed $10.0 million; and
(g) the incurrence of Nonrecourse Debt by any Unrestricted
Subsidiary of the Company; provided, however, that if any
such Indebtedness remains outstanding but ceases to be
Nonrecourse Debt of an Unrestricted Subsidiary, such event
shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary.
If any Management Fees are not paid, the Company may defer and accrue
such Management Fees provided that, (i) all such Management Fees deferred or
paid for any period do not exceed the amount permitted to be paid under Section
4.07 for such period and (ii) any such deferred Management Fees are subject to a
Management Fee Subordination Agreement that is in full force and effect and not
being contested by any Person.
If the Company or any Restricted Subsidiary shall have any Indebtedness
outstanding that is owed to Adelphia, FPL Group or any of their Affiliates
(other than the Company or any Restricted Subsidiary), then such Indebtedness
shall be subject to a Subordination Agreement that is in full force and effect
and not being contest by any Person.
Section 4.10. Asset Sales.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to: (i) sell, lease, convey or otherwise dispose of any assets
(including, without limitation, by way of a sale-and-leaseback) other than sales
of inventory and other current assets in the ordinary course of business
(provided that the sale, lease, conveyance or other disposition of all or
substantially all of the assets of the Company and its Restricted Subsidiaries
taken as a whole shall be governed by the provisions of Sections 4.15 and 5.01
hereof), or (ii) the issue of Equity Interests of any of the Company's
Restricted Subsidiaries or sale of Equity Interests of any of the Company's
Restricted Subsidiaries, in the case of either clause (i) or (ii) above, whether
in a single transaction or a series of related transactions, (a) that have a
fair market value in excess of $1,000,000 or (b) for net proceeds in excess of
$500,000 (each of the foregoing, an "Asset Sale").
Notwithstanding the foregoing: (i) a transfer of assets by any
Person to a Restricted Subsidiary of such Person, or by a Restricted Subsidiary
of any Person to such Person or to another Restricted Subsidiary of such Person;
(ii) an issuance of Equity Interests by a Restricted Subsidiary of any Person to
such Person or to another Restricted Subsidiary of such Person; and (iii) a
Restricted Payment that is permitted by the Section 4.07 will not be deemed to
be Asset Sales.
Within 180 days after the receipt of any Net Proceeds from an Asset
Sale, the Company or such Restricted Subsidiary, as the case may be, may apply
such Net Proceeds from such Asset Sale, at its option, either, (i) reduce
Indebtedness (and to correspondingly reduce commitments with respect to any
revolving credit facility) such that the Debt to Cash Flow Ratio after such
Asset Sale is lower than before such Asset Sale or (ii) to acquire, or cause a
Restricted Subsidiary to acquire, assets useful to its business. Any Net
Proceeds from such Asset Sale, other than Equity Interests or debt securities
issued by a Person which has Investment Grade Senior Debt) that are not applied
or invested as provided in the first sentence of this paragraph will be deemed
to constitute "Excess Proceeds." Within five days of each date on which the
aggregate amount of Excess Proceeds exceeds $5 million, the Company shall
commence a pro rata Asset Sale Offer pursuant to Section 3.09 hereof to purchase
the maximum principal amount of Senior Notes that may be purchased out of the
Excess Proceeds at an offer price in cash in an amount equal to 100% of the
principal amount thereof on the date fixed for the closing of such offer plus
accrued and unpaid interest and Liquidated Damages, if any, thereon as of the
date of purchase in accordance with the procedures set forth in Section 3.09
hereof. To the extent that the aggregate amount of Senior Notes tendered
pursuant to an Asset Sale Offer is less than the amount that may be purchased
from Excess Proceeds, the Company may use any remaining Excess Proceeds for
general corporate purposes. Upon completion of such offer to purchase, the
amount of Excess Proceeds will be deemed to be reset at zero.
Section 4.11. Transactions with Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment 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 or make or amend any contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate (each of the
foregoing, an "Affiliate Transaction"), unless (a) such Affiliate Transaction is
on terms that are no less favorable to the Company, or the relevant Restricted
Subsidiary, as the case may be, than those that would have been obtained in a
comparable transaction by the Company or such Restricted Subsidiary, as the case
may be, with an unrelated Person and (b) the Company delivers to the Trustee
with its regular quarterly or annual reports (i) with respect to any Affiliate
Transaction or series of Affiliate Transactions involving aggregate
consideration in excess of $2 million, a resolution of the Board of Directors
set forth in an Officers' Certificate certifying that such Affiliate Transaction
complies with clause (a) above and that such Affiliate Transaction has been
approved by a majority of the disinterested members of the Board of Directors,
if any, and (ii) with respect to any Affiliate Transaction or series of
Affiliate Transactions involving aggregate consideration in excess of $25
million, an opinion as to the fairness to Holders of such Affiliate Transaction
from a financial point of view issued by a nationally recognized investment
banking, accounting or appraisal firm experienced in the appraisal or similar
review of similar types of transactions; provided, however, that (i)
transactions in the ordinary course of business with customers and suppliers,
(ii) transactions effected in accordance with the provisions of any of the
Material Agreements pursuant to the terms thereof, as amended from time to time,
provided that such terms are not economically more favorable to the Affiliate
than the terms in effect on the date of this Indenture, (iii) any employment
agreement entered into by the Company or any of its Restricted Subsidiaries, in
the ordinary course of business and consistent with the past practice of the
Company or such Subsidiary, (iv) transactions between or among the Company
and/or its Restricted Subsidiaries and (v) Restricted Payments and Permitted
Investments that are permitted by Section 4.07 in each case, shall not be deemed
Affiliate Transactions.
Section 4.12. Liens.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien securing Indebtedness on any asset now owned or hereafter
acquired, or any income or profits therefrom or assign or convey any right to
receive income therefrom to secure Indebtedness, except (i) Liens on assets of
Subsidiaries (other than Olympus Capital) to secure Indebtedness permitted to be
incurred by the Indenture, other than Indebtedness owed to an Affiliate of the
Company, (ii) Liens on assets of Subsidiaries to secure Indebtedness under the
Bank Credit Facilities, provided that, the principal amount of such Indebtedness
is not greater than the maximum principal amount of Indebtedness permitted to be
incurred under the Bank Credit Facilities as of the date of this Indenture or
permitted incurred under this Indenture and (iii) Liens on assets of the Company
to secure Indebtedness to be incurred by the Indenture, other than Indebtedness
owed to an Affiliate of the Company, provided, that the Senior Notes are equally
and ratably secured with such Indebtedness.
Section 4.13. Business Activities of Olympus Capital.
Olympus Capital shall not engage in any business other than in connection
with its acting as an Issuer of the Senior Notes, and Olympus Capital shall not
have any investments or any Subsidiaries.
Section 4.14. Corporate Existence.
Subject to Article 5 hereof, each Issuer shall do or cause to be
done all things necessary to preserve and keep in full force and effect (i) its
partnership or corporate existence, and the corporate, partnership or other
existence of each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of such
Issuer or any such Subsidiary and (ii) their rights (charter and statutory),
licenses and franchises; provided, however, that the Issuers shall not be
required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Subsidiaries, if the Board of
Directors of each of the Managing General Partner, on behalf of the Company (or
the Company, if the Company is a corporation), and Olympus Capital shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Issuers and their Subsidiaries, taken as a whole, and that
the loss thereof is not adverse in any material respect to the Holders of the
Senior Notes.
Section 4.15. Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, the Company shall
make an offer (a "Change of Control Offer") to each Holder to repurchase all or
any part (equal to $1,000 or an integral multiple thereof) of each Holder's
Senior Notes at a purchase price equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any,
to the date of purchase (the "Change of Control Payment"). Within 10 days
following any Change of Control, the Company shall mail a notice to each Holder
describing the transaction or transactions that constitute the Change of Control
and stating: (1) that the Change of Control Offer is being made pursuant to this
Section 4.15 and that all Senior Notes tendered will be accepted for payment;
(2) the purchase price and the purchase date, which shall be no later than 30
business days from the date such notice is mailed (the "Change of Control
Payment Date"); (3) that any Senior Note not tendered will continue to accrue
interest; (4) that, unless the Company defaults in the payment of the Change of
Control Payment, all Senior Notes accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control Payment
Date; (5) that Holders electing to have any Senior Notes purchased pursuant to a
Change of Control Offer will be required to surrender the Senior Notes, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the Senior
Notes completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day preceding the Change of
Control Payment Date; (6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than the close of business on
the second Business Day preceding the Change of Control Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of Senior Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have the Senior Notes
purchased; and (7) that Holders whose Senior Notes are being purchased only in
part will be issued new Senior Notes equal in principal amount to the
unpurchased portion of the Senior Notes surrendered, which unpurchased portion
must be equal to $1,000 in principal amount or an integral multiple thereof. The
Company shall comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent such laws
and regulations are applicable in connection with the repurchase of Senior Notes
in connection with a Change of Control.
(b) On the Change of Control Payment Date, the Company shall, to
the extent lawful, (1) accept for payment all Senior Notes or portions thereof
properly tendered pursuant to the Change of Control Offer, (2) deposit with the
Paying Agent an amount equal to the Change of Control Payment in respect of all
Senior Notes or portions thereof so tendered and (3) deliver or cause to be
delivered to the Trustee the Senior Notes so accepted together with an Officers'
Certificate stating the aggregate principal amount of Senior Notes or portions
thereof being purchased by the Company. The Paying Agent shall promptly mail to
each Holder of Senior Notes so tendered payment in an amount equal to the
purchase price for the Senior Notes, and the Trustee shall promptly authenticate
and mail (or cause to be transferred by book entry) to each Holder a new Senior
Note equal in principal amount to any unpurchased portion of the Senior Notes
surrendered by such Holder, if any; provided, that each such new Senior Note
shall be in a principal amount of $1,000 or an integral multiple thereof. The
Company shall publicly announce the results of the Change of Control Offer on or
as soon as practicable after the Change of Control Payment Date.
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets.
The Company shall not consolidate or merge with or into (whether or
not the Company is the surviving corporation) or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another corporation, Person or
entity unless (i) the Company is the surviving entity or the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made is a corporation, partnership or limited liability company
organized or existing under the laws of the United States, any state thereof or
the District of Columbia, (ii) the entity or Person formed by or surviving any
such consolidation or merger (if other than the Company) or the entity or Person
to which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made assumes all the obligations of the Company under the Senior
Notes and this Indenture pursuant to a supplemental indenture in a form
reasonably satisfactory to the Trustee, (iii) immediately after such
transaction, no Default or Event of Default exists, and (iv) the Company or the
entity or Person formed by or surviving any such consolidation or merger (if
other than the Company), or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made in a form reasonably
satisfactory to the Trustee, and will, at the time of such transaction and after
giving pro forma effect thereto as if such transaction had occurred at the
beginning of the applicable one-quarter period, be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Debt to Cash Flow Ratio test
set forth in Section 4.09.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.01 hereof, the successor
corporation, partnership or limited liability company formed by such
consolidation or into or with which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to the Company), and may exercise every right
and power of the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; provided, however, that
the predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Senior Notes except in the case of a sale of
all of the Company's assets that meets the requirements of Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if:
(a) the Company defaults in the payment when due of interest
on, or Liquidated Damages with respect to, the Senior Notes and
such default continues for a period of 30 days;
(b) the Company defaults in the payment when due of principal
of or premium, if any, on the Senior Notes when the same becomes
due and payable at maturity, upon acceleration, repurchase or
otherwise;
(c) the Company fails to comply with any of the provisions
of Section 4.07, 4.09, 4.10 or 5.01 hereof;
(d) the Company fails to observe or perform any other
covenant, representation, warranty or other agreement in this
Indenture or the Senior Notes for 60 days after written notice to
the Company by the Trustee or the Holders of at least 25% in
principal amount of the Senior Notes then outstanding;
(e) a default occurs which has not been waived or cured under
any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by
the Company or its Restricted Subsidiaries), whether such
Indebtedness or guarantee now exists, or is created after the date
of this Indenture, which default (a) is caused by a failure to pay
principal or premium, if any, or interest on such Indebtedness
prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default") or
(b) results in the acceleration of such Indebtedness prior to its
express maturity and, in each case, the principal amount of such
Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates $10 million
or more;
(f) a final judgment or final judgments for the payment of
money are entered by a court or courts of competent jurisdiction
against the Company or any of its Restricted Subsidiaries and such
judgment or judgments remain undischarged for a period (during
which execution shall not be effectively stayed) of 60 days,
provided that the aggregate of all such undischarged judgments
exceeds $5 million;
(g) the Company or any of its Significant Subsidiaries that
are Restricted Subsidiaries or any group of Restricted Subsidiaries
that, taken as a whole, would constitute a Significant Subsidiary
pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a Custodian of it
or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is not paying its debts as they become
due; or
(h) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any of its
Significant Subsidiaries that are Restricted Subsidiaries or
any group of Restricted Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary in an involuntary
case;
(ii) appoints a Custodian of the Company or any of its
Significant Subsidiaries that are Restricted Subsidiaries or
any group of Restricted Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary or for all or
substantially all of the property of the Company or any of
its Significant Subsidiaries that are Restricted Subsidiaries
or any group of Restricted Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary; or
(iii) orders the liquidation of the Company or any of
its Significant Subsidiaries that are Restricted Subsidiaries
or any group of Restricted Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days.
Section 6.02. Acceleration.
If any Event of Default (other than an Event of Default specified
in clause (g) or (h) of Section 6.01 hereof occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Senior Notes may declare all the Senior Notes to be due and payable
immediately. Upon any such declaration, the Senior Notes shall become due and
payable immediately. Notwithstanding the foregoing, if an Event of Default
specified in clause (g) or (h) of Section 6.01 hereof occurs all outstanding
Senior Notes shall be due and payable immediately without further action or
notice. The Holders of a majority in aggregate principal amount of the then
outstanding Senior Notes by written notice to the Trustee may on behalf of all
of the Holders rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default (except nonpayment of principal, interest or premium that has become due
solely because of the acceleration) have been cured or waived.
If an Event of Default occurs on or after November 15, 2001 by
reason of any willful action (or inaction) taken (or not taken) by or on behalf
of the Company with the intention of avoiding payment of the premium that the
Company would have had to pay if the Company then had elected to redeem the
Senior Notes pursuant to Section 3.07 hereof, then, upon acceleration of the
Senior Notes, an equivalent premium shall also become and be immediately due and
payable, to the extent permitted by law, anything in this Indenture or in the
Senior Notes to the contrary notwithstanding. If an Event of Default occurs
prior to November 15, 2001 by reason of any willful action (or inaction) taken
(or not taken) by or on behalf of the Company with the intention of avoiding the
prohibition on redemption of the Senior Notes prior to such date, then, upon
acceleration of the Senior Notes, an additional premium shall also become and be
immediately due and payable in an amount, for each of the years beginning on
November 15 of the years set forth below, as set forth below (expressed as a
percentage of the principal amount to the date of payment that would otherwise
be due but for the provisions of this sentence):
Year Percentage
1996....................................................... 114.1667%
1997....................................................... 112.3958%
1998...,,.................................................. 110.6250%
1999....................................................... 108.8542%
2000....................................................... 107.0833%
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, and interest and Liquidated Damages, if any, on the Senior Notes or to
enforce the performance of any provision of the Senior Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Senior Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Senior Note in exercising
any right or remedy accruing upon an Event of Default shall not impair the right
or remedy or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount
of the then outstanding Senior Notes by notice to the Trustee may on behalf of
the Holders of all of the Senior Notes waive an existing Default or Event of
Default and its consequences hereunder, except a continuing Default or Event of
Default in the payment of the principal of, premium and Liquidated Damages, if
any, or interest on, the Senior Notes or in connection with an offer to purchase
which requires the consent of the Holders of not less than 66_% of the aggregate
principal amount of the then outstanding Senior Notes (provided, however, that
the Holders of a majority in aggregate principal amount of the then outstanding
Senior Notes may rescind an acceleration and its consequences, including any
related payment default that resulted from such acceleration). 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 6.05. Control by Majority.
Holders of a majority in principal amount of the then outstanding
Senior Notes may direct the time, method and place of conducting any proceeding
for exercising any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Senior Notes or that may
involve the Trustee in personal liability.
Section 6.06. Limitation on Suits.
A Holder of a Senior Note may pursue a remedy with respect to this
Indenture or the Senior Notes only if:
(a) the Holder of a Senior Note gives to the Trustee written
notice of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Senior Notes make a written request to the
Trustee to pursue the remedy;
(c) such Holder of a Senior Note or Holders of Senior Notes offer
and, if requested, provide to the Trustee indemnity satisfactory to the
Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if
requested, the provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Senior Notes do not give the
Trustee a direction inconsistent with the request.
A Holder of a Senior Note may not use this Indenture to prejudice the rights of
another Holder of a Senior Note or to obtain a preference or priority over
another Holder of a Senior Note.
Section 6.07. Rights of Holders of Senior Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Senior Note to receive payment of principal, premium and
Liquidated Damages, if any, and interest on the Senior Note, on or after the
respective due dates expressed in the Senior Note (including in connection with
an offer to purchase), or to bring suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of
principal of, premium and Liquidated Damages, if any, and interest remaining
unpaid on the Senior Notes and interest on overdue principal and, to the extent
lawful, interest and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Senior Notes allowed in any judicial proceedings relative to the
Issuers (or any other obligor upon the Senior Notes), its creditors or its
property and shall be entitled and empowered to collect, receive and distribute
any money or other property payable or deliverable on any such claims and any
custodian in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. 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 Senior
Notes or the rights of any Holder, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Senior Notes for amounts due and unpaid on
the Senior Notes for principal, premium and Liquidated Damages, if any, and
interest, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Senior Notes for principal, premium and
Liquidated Damages, if any and interest, respectively; and
Third: to the Issuers or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment
to Holders of Senior Notes pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Senior Note pursuant to Section 6.07 hereof, or a suit by Holders of more than
10% in principal amount of the then outstanding Senior Notes.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If 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 its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision
of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this Indenture at
the request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuers.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by
it to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Managing General Partner of the Company on behalf of
the Company (or the Company if the Company is a corporation) and Olympus
Capital.
(f) 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 unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Senior Notes and may otherwise deal with the Issuers or any
Affiliate of the Issuers with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Senior
Notes, it shall not be accountable for the Issuers' use of the proceeds from the
Senior Notes or any money paid to the Issuers or upon the direction of the
Issuers under any provision of this Indenture, it shall not be responsible for
the use or application of any money received by any Paying Agent other than the
Trustee, and it shall not be responsible for any statement or recital herein or
any statement in the Senior Notes or any other document in connection with the
sale of the Senior Notes or pursuant to this Indenture other than its
certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to Holders of Senior Notes a
notice of the Default or Event of Default within 90 days after it occurs. Except
in the case of a Default or Event of Default in payment of principal of,
premium, if any, or interest on any Senior Note, the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders of the
Senior Notes.
Section 7.06. Reports by Trustee to Holders of the Senior Notes.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Senior Notes remain
outstanding, the Trustee shall mail to the Holders of the Senior Notes a brief
report dated as of such reporting date that complies with TIA ss. 313(a) (but if
no event described in TIA ss. 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA ss. 313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA ss. 313(c).
A copy of each report at the time of its mailing to the Holders of
Senior Notes shall be mailed to the Issuers and filed with the SEC and each
stock exchange on which the Senior Notes are listed in accordance with TIA ss.
313(d). The Company shall promptly notify the Trustee when the Senior Notes are
listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
The Issuers shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuers shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Issuers shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Issuers (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Issuers or any Holder or any other person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to
the extent any such loss, liability or expense may be attributable to its
negligence or bad faith. The Trustee shall notify the Issuers promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Issuers shall not relieve the Issuers of their obligations hereunder. The
Issuers shall defend the claim and the Trustee shall cooperate in the defense.
The Trustee may have separate counsel and the Issuers shall pay the reasonable
fees and expenses of such counsel. The Issuers need not pay for any settlement
made without their consent, which consent shall not be unreasonably withheld.
The obligations of the Issuers under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture.
To secure the Issuers' payment obligations in this Section, the
Trustee shall have a Lien prior to the Senior Notes on all money or property
held or collected by the Trustee, except that held in trust to pay principal and
interest on particular Senior Notes. Such Lien shall survive the satisfaction
and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(g) or (h) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss. 313(b)(2)
to the extent applicable.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying the Issuers. The Holders of Senior
Notes of a majority in principal amount of the then outstanding Senior Notes may
remove the Trustee by so notifying the Trustee and the Issuers in writing. The
Issuers may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuers shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Senior Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Issuers.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Issuers,
or the Holders of Senior Notes of at least 10% in principal amount of the then
outstanding Senior Notes may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Senior
Note who has been a Holder of a Senior Note for at least six months, fails to
comply with Section 7.10, such Holder of a Senior Note may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Senior Notes. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, provided
all sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Issuers' obligations under Section 7.07
hereof shall continue for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has, or is a wholly-owned subsidiary of a
bank holding company that has, a combined capital and surplus of at least $100
million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIAss. 310(a)(1), (2) and (5). The Trustee is subject to
TIAss. 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced
by a resolution set forth in an Officers' Certificate, at any time, elect to
have either Section 8.02 or 8.03 hereof be applied to all outstanding Senior
Notes upon compliance with the conditions set forth below in this Article Eight.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Senior Notes on
the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Senior Notes, which shall thereafter be deemed to be "outstanding"
only for the purposes of Section 8.05 hereof and the other Sections of this
Indenture referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Senior Notes and this Indenture (and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Senior Notes to receive solely from the trust fund described in
Section 8.04 hereof, and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any, and interest and Liquidated
Damages on such Senior Notes when such payments are due, (b) the Company's
obligations with respect to such Senior Notes under Article 2 and Section 4.02
hereof, (c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company's obligations in connection therewith and (d) this
Article Eight. Subject to compliance with this Article Eight, the Company may
exercise its option under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 hereof.
Section 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Sections 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.13, 4.15 and 5.01 hereof with respect to the outstanding Senior
Notes on and after the date the conditions set forth below are satisfied
(hereinafter, "Covenant Defeasance"), and the Senior Notes shall thereafter be
deemed not "outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Senior Notes
shall not be deemed outstanding for accounting purposes). For this purpose,
Covenant Defeasance means that, with respect to the outstanding Senior Notes,
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.01 hereof, but,
except as specified above, the remainder of this Indenture and such Senior Notes
shall be unaffected thereby. In addition, upon the Company's exercise under
Section 8.01 hereof of the option applicable to this Section 8.03 hereof,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
Sections 6.01(c) through 6.01(f) hereof shall not constitute Events of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Senior Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders, cash in United
States dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered
to the Trustee, to pay the principal of, premium, if any and
interest and Liquidated Damages, if any, on the outstanding Senior
Notes on the stated date for payment thereof or on the applicable
redemption date, as the case may be;
(b) in the case of an election under Section 8.02
hereof, the Company shall have delivered to the Trustee an Opinion
of Counsel in the United States reasonably acceptable to the
Trustee confirming that (A) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling or (B)
since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of the outstanding Senior Notes will not recognize
income, gain or loss for federal income tax purposes as a result of
such Legal Defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03
hereof, the Company shall have delivered to the Trustee an Opinion
of Counsel in the United States reasonably acceptable to the
Trustee confirming that the Holders of the outstanding Senior Notes
will not recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred
and be continuing on the date of such deposit (other than a Default
or Event of Default resulting from the incurrence of Indebtedness
all or a portion of the proceeds of which will be used to defease
the Senior Notes pursuant to this Article Eight concurrently with
such incurrence) or insofar as Sections 6.01(g) or 6.01(h) hereof
is concerned, at any time in the period ending on the 91st day
after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute a default
under, any material agreement or instrument (other than this
Indenture) to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an
opinion of counsel to the effect that on the 91st day following the
deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders over any other
creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the
Company; and
(h) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for or relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.
Section 8.05. Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of the
outstanding Senior Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Senior Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of such
Senior Notes of all sums due and to become due thereon in respect of principal,
premium, if any, and interest and Liquidated Damages, if any, but such money
need not be segregated from other funds except to the extent required by law.
The Issuers shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Senior
Notes.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuers from time to time upon the request
of the Issuers any money or non-callable Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 8.06. Repayment to Issuers.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Issuers in trust for the payment of the principal of, premium, if
any, or interest and Liquidated Damages, if any; on any Senior Note and
remaining unclaimed for two years after such principal, and premium, if any, or
interest or Liquidated Damages has become due and payable shall be paid to the
Issuers on their request or (if then held by the Issuers) shall be discharged
from such trust; and the Holder of such Senior Note shall thereafter, as an
unsecured creditor, look only to the Issuers for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Issuers as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Issuers cause to be
published once, in the New York Times and The Wall Street Journal (national
edition), 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
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Issuers.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Issuers' obligations under this Indenture and the Senior
Notes shall be revived and reinstated as though no deposit had occurred pursuant
to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; provided, however, that, if the Issuers make any
payment of principal of, premium, if any, or interest or Liquidated Damages, if
any, on any Senior Note following the reinstatement of their obligations, the
Issuers shall be subrogated to the rights of the Holders of such Senior Notes to
receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Senior Notes.
Notwithstanding Section 9.02 of this Indenture, the Company and the
Trustee may amend or supplement this Indenture or the Senior Notes without the
consent of any Holder of a Senior Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Senior Notes in addition to or
in place of certificated Senior Notes;
(c) to provide for the assumption of the Company's obligations to
the Holders of the Senior Notes in the case of a merger or consolidation
pursuant to Article Five hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Senior Notes or that does not adversely
affect the legal rights hereunder of any Holder of the Senior Note; or
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Upon the request of the Issuers accompanied by resolutions of the
Board of Directors of the Managing General Partner of the Company (or the
Company if the Company is a corporation) and Olympus Capital authorizing the
execution of any such amended or supplemental Indenture, and upon receipt by the
Trustee of an Officers' Certificate and an Opinion of Counsel, the Trustee shall
join with the Issuers in the execution of any amended or supplemental Indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into such amended or supplemental
Indenture that affects its own rights, duties or immunities under this Indenture
or otherwise.
Section 9.02. With Consent of Holders of Senior Notes.
Except as provided below in this Section 9.02, the Company and the
Trustee may amend or supplement this Indenture (including Section 3.09, 4.10 and
4.15 hereof) and the Senior Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the Senior
Notes then outstanding (including consents obtained in connection with a
purchase of, or tender offer or exchange offer for the Senior Notes), and,
subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of
Default (other than a Default or Event of Default in the payment of the
principal of, premium, if any, or interest on the Senior Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of this Indenture or the Senior Notes or the Registration
Rights Agreement may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Senior Notes (including consents
obtained in connection with a tender offer or exchange offer for the Senior
Notes). Without the consent of at least 66 2/3% in principal amount of the
Senior Notes then outstanding (including consents obtained in connection with a
tender offer or exchange offer for such Senior Notes), no waiver or amendment to
this Indenture may make any change in the provisions of Section 4.10, 3.09 or
4.15 hereof that adversely affects the rights of any Holder of Senior Notes.
Upon the request of the Issuers accompanied by resolutions of the
Board of Directors of the Managing General Partner of the Company (or the
Company if the Company is a corporation) and Olympus Capital authorizing the
execution of any such amended or supplemental Indenture, and upon the filing
with the Trustee of evidence satisfactory to the Trustee of the consent of the
Holders of Senior Notes as aforesaid, and upon receipt by the Trustee of an
Officers' Certificate and an Opinion of Counsel, the Trustee shall join with the
Company in the execution of such amended or supplemental Indenture unless such
amended or supplemental Indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such amended or
supplemental Indenture.
It shall not be necessary for the consent of the Holders of Senior
Notes under this Section 9.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Issuers shall mail to the Holders of Senior Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Issuers to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the Senior Notes then
outstanding may waive compliance in a particular instance by the Issuers with
any provision of this Indenture or the Senior Notes. However, without the
consent of each Holder affected, an amendment or waiver may not (with respect to
any Senior Notes held by a non-consenting Holder):
(a) reduce the principal amount of Senior Notes whose
Holders must consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of
any Senior Note or alter any of the provisions with respect to the
redemption of the Senior Notes except as provided above with
respect to Sections 3.09, 4.10 and 4.15 hereof;
(c) reduce the rate or time of payment of interest on any
Senior Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Senior Notes
(except a rescission of acceleration of the Senior Notes by the
Holders of at least a majority in aggregate principal amount of the
then outstanding Senior Notes and a waiver of the payment default
that resulted from such acceleration);
(e) make any Senior Note payable in money other than that
stated in the Senior Notes;
(f) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders of
Senior Notes to receive payments of principal of or premium, if
any, on the Senior Notes; or
(g) make any change in the foregoing amendment and waiver
provisions.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Senior Notes
shall be set forth in a amended or supplemental Indenture that complies with the
TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Senior Note is a continuing consent by the Holder
of a Senior Note and every subsequent Holder of a Senior Note or portion of a
Senior Note that evidences the same debt as the consenting Holder's Senior Note,
even if notation of the consent is not made on any Senior Note. However, any
such Holder of a Senior Note or subsequent Holder of a Senior Note may revoke
the consent as to its Senior Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05. Notation on or Exchange of Senior Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Senior Note thereafter authenticated. The Issuers in
exchange for all Senior Notes may issue and the Trustee shall authenticate new
Senior Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Senior Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
ARTICLE 10
MISCELLANEOUS
Section 10.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA ss.318(c), the imposed duties shall control.
Section 10.02. Notices.
Any notice or communication by the Issuers or the Trustee to the
others is duly given if in writing and delivered in Person or mailed by first
class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Issuers:
Olympus Communications, L.P.
Olympus Capital Corporation
c/o Olympus Communications, L.P.
5 West Third Street
P.O. Box 472
Coudersport, Pennsylvania 16915
Telecopier No.: (814) 274-6586
Attention: Timothy J. Rigas
With a copy to:
Buchanan Ingersoll
1 Oxford Center
301 Grant Street, 20th Floor
Pittsburgh, Pennsylvania 15219
Telecopier No.: (412) 562-1041
Attention: Lewis Davis, Esq.
If to the Trustee:
Bank of Montreal Trust Company
77 Water Street
New York, New York 10005
Telecopier No. (212) 701-7684
Attention: Theresa Gaballah
The Issuers or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA ss. 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Issuers mail a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 10.03. Communication by Holders of Senior Notes with Other Holders
of Senior Notes.
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Senior Notes.
The Issuers, the Trustee, the Registrar and anyone else shall have the
protection of TIA ss. 312(c).
Section 10.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 11.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 11.05 hereof) stating that, in the opinion of such counsel,
all such conditions precedent and covenants have been satisfied.
Section 10.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA
ss. 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
Section 10.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 10.07. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company, Olympus Capital or any general
partner of the Company (including Adelphia or FPL Group in any such capacity),
as such, shall have any liability for any obligations of the Issuers under the
Senior Notes, this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting a Senior
Note waives and releases all such liability including any rights against any
general partner of the Company in its capacity as general partner. The waiver
and release are part of the consideration for issuance of the Senior Notes.
Section 10.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS INDENTURE AND THE SENIOR NOTES.
Section 10.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Company or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
Section 10.10. Successors.
All agreements of the Issuers in this Indenture and the Senior
Notes shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors.
Section 10.11. Severability.
In case any provision in this Indenture or in the Senior Notes
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 10.12. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 10.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
<PAGE>
11
SIGNATURES
Olympus Communications, L.P.
By: ACP Holdings, Inc.
Title: Managing General Partner
By:
Name:
Title:
Olympus Capital Corporation
By:
Name:
Title:
Attest:
(SEAL)
Bank of Montreal Trust Company
By:
Name:
Title:
Attest:
(SEAL)
<PAGE>
2
Exhibit A-1
(Face of Senior Note)
10_% Senior Notes due 2006
No. $__________
OLYMPUS COMMUNICATIONS, L.P.
OLYMPUS CAPITAL CORPORATION
promises to pay to or registered assigns, the principal sum of
_____________________ Dollars on November 15, 2006.
Interest Payment Dates: May 15, and November 15
Record Dates: May 1, and November 1
Dated:
OLYMPUS COMMUNICATIONS, L.P.
By: ACP Holdings, Inc.
Managing General Partner
By
Name:
Title:
OLYMPUS CAPITAL CORPORATION
By
Name:
Title:
(SEAL)
This is one of the Senior Notes referred to in the within-mentioned Indenture:
BANK OF MONTREAL TRUST COMPANY,
as Trustee
By:
Authorized Signature
<PAGE>
A-1-12
(Back of Senior Note)
10_% Senior Notes due 2006
[Unless and until it is exchanged in whole or in part for Senior Notes in
definitive form, this Senior Note may not be transferred except as a
whole by the Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such
successor Depository. Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York,
New York) ("DTC"), to the issuer or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or such other name as may be requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as may be 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.]1/
THE SENIOR NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) BY THE
PURCHASER (1) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION
COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER
THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) BY
SUBSEQUENT INVESTORS AS SET FORTH IN (A) ABOVE OR TO
INSTITUTIONAL ACCREDITED INVESTORS IN A TRANSACTION EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES
LAWS OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS.
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. Interest. Olympus Communications, L.P., a Delaware
limited partnership (the "Company"); and Olympus Capital
Corporation ("Olympus Capital" and, together with the Company, the "Issuers"),
promise to pay interest on the principal amount of this Senior Note at 10_% per
annum from November 12, 1996 until November 15, 2006 and shall pay the
Liquidated Damages, if any, payable pursuant to Section 5 of the Registration
Rights Agreement referred to below. The Issuers shall pay interest and
Liquidated Damages, if any, semi-annually in arrears on May 15 and November 15
of each year, or if any such day is not a Business Day, on the next succeeding
Business Day (each an "Interest Payment Date"). Interest on the Senior Notes
will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Senior Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be May 15, 1997. The Issuers shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at a rate equal to
the per annum rate on the Senior Notes then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Liquidated Damages, if any, (without regard
to any applicable grace periods) from time to time on demand at the same rate to
the extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment. The Issuers shall make payments in
respect of the Senior Notes represented by the Global
Notes (including principal, premium, interest and Liquidated Damages, if any) by
wire transfer of immediately available funds to the accounts specified by the
Note Custodian. With respect to Senior Notes issued in definitive form, the
Issuers shall make all payments of principal, premium, interest and Liquidated
Damages, if any, by mailing a check to each such Holder's registered address,
provided that all payments with respect to Senior Notes having an aggregate
principal amount of $100,000 or more, the Holders of which have given wire
transfer instructions to the Issuers at least ten business days prior to the
applicable payment date, will be required to be made by wire transfer of
immediately available funds to the accounts specified by the Holders thereof.
Except for trades involving only Euroclear or CEDEL participants, the Senior
Notes represented by the Global Notes are expected to be eligible to trade in
DTC's Same-Day Funds Settlement System, and any permitted secondary market
trading activity in such notes will, therefore, be required by DTC to be settled
in immediately available funds. The Issuers expects that secondary trading in
the Definitive Notes also will be settled in immediately available funds.
3. Paying Agent and Registrar. Initially, Bank of
Montreal Trust Company, the Trustee under the Indenture,
will act as Paying Agent and Registrar. The Senior Notes may be presented for
registration of transfer and exchange at the offices of the Registrar. The
Issuers may change any Paying Agent or Registrar without notice to any Holder.
The Issuers or any of their Subsidiaries may act in any such capacity.
4. Indenture. The Issuers issued the Senior Notes
under an Indenture dated as of November 12, 1996
("Indenture") between the Issuers and the Trustee. The terms of the Senior Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code ss.ss.
77aaa-77bbbb). The Senior Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. The Senior
Notes are senior unsecured obligations of the Issuers limited to $200 million in
aggregate principal amount.
5. Optional Redemption.
(a) Except as set forth in paragraph (b) of this
Paragraph 5, the Senior Notes are not redeemable at the
Company's option prior to November 15, 2001. From and after November 15, 2001,
the Company shall have the option to redeem the Senior Notes, in whole or in
part, upon not less than 30 nor more than 60 days notice, at the redemption
prices (expressed as percentages of principal amount) set forth below, plus
accrued and unpaid interest and Liquidated Damages thereon to the applicable
redemption date, if redeemed during the twelve-month period beginning on
November 15 of the years indicated below:
Year Percentage
2001.................................................... 105.3125%
2002.................................................... 103.5417%
2003.................................................... 101.7708%
2004 and thereafter..................................... 100.0000%
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, during the first 36 months after the date of the Offering Circular,
the Company may redeem up to $70 million in principal amount of Senior Notes at
a redemption price of 110.625% of the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages thereon, if any, to the redemption date
with the net cash proceeds of an Initial Public Offering of Equity Interests in
the Company, provided that at least $130 million in aggregate principal amount
of Senior Notes remain outstanding immediately after the occurrence of such
redemption and, provided, further that such redemption occurs within 30 days of
the date of the closing of such Public Offering.
(c) Any redemption pursuant to this paragraph shall be made
pursuant to the provisions of Section 3.01 through 3.06 of the Indenture.
6. Mandatory Redemption. Except as set forth in paragraph 7
below, the Company shall not be required to make mandatory redemption payments
with respect to the Senior Notes.
7. Repurchase at Option of Holder.
(a) If there is a Change of Control, the Company shall be required
to make an offer (a "Change of Control Offer") to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of each Holder's Senior Notes
at a purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Liquidated Damages thereon, if any, to the date
of purchase, which date shall be no later than 30 days from the date such notice
is mailed (the "Change of Control Payment Date"). Within 10 days following any
Change of Control, the Company shall mail a notice to each Holder setting forth
the procedures governing the Change of Control Offer as required by the
Indenture. Such right to require the repurchase of Senior Notes shall not
continue after discharge of the Company from its obligations with respect to the
Senior Notes. The board of directors of the Managing General Partner of the
Company may not waive this provision.
(b) As soon as practical, but in no event later than 5 business
days after any date (an "Asset Sale Trigger Date") that the aggregate amount of
Excess Proceeds exceeds $5 million, the Company shall commence a pro rata Asset
Sale Offer (as described under Section 3.09 of the Indenture) to purchase the
maximum principal amount of Senior Notes that may be purchased out of the Excess
Proceeds, at an offer price in cash in an amount equal to 100% of the principal
amount thereof on the date fixed for the closing of such offer plus accrued and
unpaid interest and Liquidated Damage thereon, if any, to the date of purchase.
To the extent that any Excess Proceeds remain after completion of an Offer, the
Company may use the remaining amount for general corporate purposes. If the
aggregate principal amount of Senior Notes surrendered by Holders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select the Senior Notes
to be purchased on a pro rata basis. Holders of Senior Notes that are the
subject of an offer to purchase will receive an Asset Sale Offer from the
Company prior to any related purchase date and may elect to have such Senior
Notes purchased by completing the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Senior Notes. Upon completion of such Offer to
purchase, the amount of Excess Proceeds will be reset to zero.
8. Notice of Redemption. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Senior Notes are to be redeemed at its registered address. Senior
Notes may be redeemed in part but only in whole multiples of $1,000. On and
after the redemption date interest ceases to accrue on Senior Notes or portions
thereof called for redemption.
9. Denominations, Transfer, Exchange. The Senior Notes are in
registered form without coupons in minimum denominations of $1,000 and integral
multiples of $1,000 in excess thereof. The transfer of Senior Notes may be
registered and Senior Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Issuers may require a
Holder to pay any taxes and fees required by law or permitted by the Indenture.
The Issuers need not exchange or register the transfer of any Senior Note or
portion of a Senior Note selected for redemption, except for the unredeemed
portion of any Senior Note being redeemed in part. Also, it need not exchange or
register the transfer of any Senior Notes for a period of 15 days before a
selection of Senior Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a Senior Note
may be treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture or the Senior Notes may be amended or supplemented
with the consent of the Holders of at least a majority in principal amount of
the then outstanding Senior Notes, and any existing default or compliance with
any provision of the Indenture or the Senior Notes may be waived with the
consent of the Holders of a majority in principal amount of the then outstanding
Senior Notes. Without the consent of any Holder of a Senior Note, the Indenture
or the Senior Notes may be amended or supplemented to cure any ambiguity, defect
or inconsistency, to provide for uncertificated Senior Notes in addition to or
in place of certificated Senior Notes, to provide for the assumption of the
Company's obligations to Holders of the Senior Notes in case of a merger or
consolidation, to make any change that would provide any additional rights or
benefits to the Holders of the Senior Notes or that does not adversely affect
the legal rights under the Indenture of any such Holder, or to comply with the
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the Trust Indenture Act.
12. Defaults and Remedies. An Event of Default occurs if: (i) the
Company defaults in the payment when due of any interest on, or Liquidated
Damages with respect to, any Senior Note and such default continues for a period
of 30 days (whether or not prohibited by Article 6 of the Indenture); (ii) the
Company defaults in the payment of the principal of (or premium, if any, on) any
Senior Note at its maturity (whether or not prohibited by Article 6 of the
Indenture); (iii) the Company fails to comply with any of the provisions of
Sections 4.07, 4.09, 4.10 or 5.01 of the Indenture; (iv) the Company fails to
observe or perform any other covenant, representation, warranty or other
agreement in the Indenture or the Senior Notes for 60 days after written notice
to the Company by the Trustee or the Holders of at least 25% in principal amount
of the Senior Notes then outstanding; (v) a default occurs under any mortgage,
indenture or instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company or any
of its Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or its Restricted Subsidiaries of the Issuers), whether such
Indebtedness or guarantee now exists or shall be created hereafter, which
default (a) is caused by a failure to pay principal or premium, if any or
interest upon such Indebtedness prior to the expiration of the grace period
provided in such Indebtedness on the date of such default (a "Payment Default")
or (b) results in the acceleration of such Indebtedness prior to its expressed
maturity and in each case the principal amount of such Indebtedness, together
with the principal amount of any other such Indebtedness, with respect to which
the principal (and premium, if any) amount unpaid upon its expressed maturity
under which there has been a Payment Default or the maturity of which has been
so accelerated, aggregates $10 million or more; (vi) a final judgment or final
judgments for the payment of money are entered by a court or courts of competent
jurisdiction against the Company or any of its Restricted Subsidiaries and such
judgment or judgments remain undischarged for a period (during which execution
shall not be effectively stayed) of 60 days, provided that the aggregate of all
such judgments exceeds $5 million; or (vii) the Company or any of its
Significant Subsidiaries that are Restricted Subsidiaries or any group of
Restricted Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary pursuant to or within the meaning of Bankruptcy Law: (a) commences a
voluntary case, (b) consents to the entry of an order for relief against it in
an involuntary case, (c) consents to the appointment of a Custodian of it or for
all or substantially all of its property, (d) makes a general assignment for the
benefit of its creditors, or (e) generally is not paying its debts as they
become due; or (viii) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that: (a) is for relief against the Company or
any of its Significant Subsidiaries that are Restricted Subsidiaries or any
group of Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary in an involuntary case, (b) appoints a custodian of the
Company or any of its Significant Subsidiaries that are Restricted Subsidiaries
or any group of Restricted Subsidiaries that, taken as whole, would constitute a
Significant Subsidiary or for all or substantially all of the Company or any of
its Significant Subsidiaries that are Restricted Subsidiaries or any group of
Restricted Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary, or (c) orders the liquidation of the Company or any of their
Significant Subsidiaries or any group of Restricted Subsidiaries that, taken as
a whole, would constitute a Significant Subsidiary; and the order or decree
remains unstayed and in effect for 60 consecutive days. If any Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Senior Notes may declare all the Senior
Notes to be due and payable immediately. Notwithstanding the foregoing, in the
case an Event of Default specified in clauses (g) or (h) of Section 6.01 of the
Indenture occurs with respect to the Issuers, any Significant Subsidiary that is
a Restricted Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary, all outstanding Senior
Notes will become due and payable without further action or notice. Holders of
the Senior Notes may not enforce the Indenture or the Senior Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in principal amount of the then outstanding Senior Notes may direct the Trustee
in its exercise of any trust or power. The Trustee may withhold from Holders of
the Senior Notes notice of any continuing Default or Event of Default (except a
Default or Event of Default relating to the payment of principal or interest) if
it determines that withholding notice is in their interest. In the case of any
Event of Default occurring on or after November 16, 2001, by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the Company
with the intention of avoiding payment of the premium that the Company would
have had to pay if the Company then had elected to redeem the Senior Notes
pursuant to Section 3.07 of the Indenture, an equivalent premium shall also
become and be immediately due and payable to the extent permitted by law upon
the acceleration of the Senior Notes. The Holders of not less than a majority in
aggregate principal amount of the Senior Notes then outstanding by notice to the
Trustee may on behalf of the Holders of all of the Senior Notes waive any
existing Default or Event of Default and its consequences under the Indenture,
except a continuing Default or Event of Default in the payment of the principal
of, premium and Liquidated Damages, if any, or interest on, the Senior Notes or
in connection with an offer to purchase which requires the consent of Holders of
not less than 66_% of the aggregate principal amount of the then outstanding
Senior Notes (provided, however, that the Holders of a majority in aggregate
principal amount of the then outstanding Senior Notes may rescind an
acceleration and its consequence, including any related payment default) or a
default with respect to any covenant or provision which cannot be modified or
amended without the consent of the Holder of each outstanding Senior Note
affected.
The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the Company is required,
upon becoming aware of any Default or Event of Default, to deliver to the
Trustee a statement specifying such Default or Event of Default and what action
the Company is taking or proposes to take thereto.
13. Trustee Dealings with Company. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Issuers or their Affiliates, and may otherwise deal with the
Issuers or their Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A director, officer, employee,
incorporator or stockholder, partners or members of the Company, Olympus Capital
or any general partner of the Company (including Adelphia or FPL Group in any
such capacity), as such, shall not have any liability for any obligations of the
Issuers under the Senior Notes or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder by
accepting a Senior Note waives and releases all such liability including any
rights against any general partner of the Company in its capacity as general
partner. The waiver and release are part of the consideration for the issuance
of the Senior Notes.
15. Authentication. This Senior Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TENENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. Additional Rights of Holders of Transfer Restricted Securities.
In addition to the rights provided to Holders of Senior Notes under the
Indenture, Holders of Transfer Restricted Securities shall have all the rights
set forth in the Registration Rights Agreement dated as of November 12, 1996,
between the Issuers and the parties named on the signature pages thereof.
18. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuers have caused
CUSIP numbers to be printed on the Senior Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Senior Notes
or as contained in any notice of redemption and reliance may be placed only on
the other identification numbers placed thereon.
The Issuers shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Olympus Communications, L.P.
5 West Third Street
P.O. Box 472
Coudersport, Pennsylvania 16915
Attention: Timothy J. Rigas
<PAGE>
ASSIGNMENT FORM
To assign this Senior Note, fill in the form below: (I) or (we) assign
and transfer this Senior Note to
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
to transfer this Senior Note on the books of the Issuers. The agent may
substitute another to act for him.
Date:_______________
Your Signature:
(Sign exactly as your name appears on the
face of this Note)
<PAGE>
Option of Holder to Elect Purchase
If you want to elect to have this Senior Note purchased by
the Issuers pursuant to Section 4.10 or 4.15 of the Indenture, check the
box below:
[GRAPHIC OMITTED] Section 4.10 [GRAPHIC OMITTED] Section 4.15
If you want to elect to have only part of the Senior Note
purchased by the Issuers pursuant to Section 4.10 or Section 4.15 of the
Indenture, state the amount you elect to have purchased: $_______________
Date:____________________ Your Signature:
(Sign exactly as your name appears on the
Senior Note)
Tax Identification No.:_______________
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE OF EXCHANGES OF NOTES2/
The following exchanges of a part of this Global Note for other
Notes have been made:
<S> <C> <C> <C> <C>
Date of Exchange Amount of decrease in Amount of increase in Principal Amount of this Signature of
Principal Amount of this Principal Amount of this Global Note following authorized officer of
Global Note Global Note such decrease (or Trustee or Note
increase) Custodian
</TABLE>
<PAGE>
A-2-5
EXHIBIT A-2
(Face of Regulation S Temporary Global Note)
10_% Senior Notes due 2006
No. $_______________
OLYMPUS COMMUNICATIONS, L.P.
OLYMPUS CAPITAL CORPORATION
promises to pay to ____________________________________or registered
assigns, the principal sum of _____________________ Dollars on November
15, 2006.
Interest Payment Dates: May 15, and November 15
Record Dates: May 1 and November 1
Dated:
OLYMPUS COMMUNICATIONS, L.P.
By: ACP Holding, Inc.
Managing General Partner
By
Name:
Title:
OLYMPUS CAPITAL CORPORATION
By
Name:
Title:
(SEAL)
This is one of the Senior Notes referred to in the within-mentioned Indenture:
BANK OF MONTREAL TRUST COMPANY,
as Trustee
By:
Authorized Signature
<PAGE>
(Back of Regulation S Temporary Global Note)
10_% Series A Senior Notes due 2006
Unless and until it is exchanged in whole or in part for Senior
Notes in definitive form, this Senior Note may not be transferred except as a
whole by the Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such
successor Depository. Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) ("DTC"), to the Issuers or their agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or such other name as may be requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as may be 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.
THE SENIOR NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (A) BY THE PURCHASER (1) TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B)
BY SUBSEQUENT INVESTORS AS SET FORTH IN (A) ABOVE OR TO
INSTITUTIONAL ACCREDITED INVESTORS IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES AND OTHER JURISDICTIONS.
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE,
AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S
TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
INTEREST HEREON.
Subject to the provisions hereof, Olympus Communications, L.P., a
Delaware limited partnership (the "Company"), and Olympus Capital Corporation, a
Delaware corporation ("Olympus Capital," and together with the Company, the
"Issuers") promise to pay to _______________ the principal sum of
____________________ UNITED STATES DOLLARS (U.S. $__________) on November 15,
2006, and to pay interest on the principal amount of this Note beginning
November 12, 1996 at the rate of 10_% per annum. Upon exchange of this
Regulation S Temporary Global Note for a Regulation S Permanent Global Note as
set forth below, interest shall be payable in cash semi-annually in arrears on
May 15 and November 15, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date"); provided that the
first Interest Payment Date shall be May 15, 1997. Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of original issuance. Interest will be
computed on the basis of a 360-day year comprised of twelve 30-day months.
This Regulation S Temporary Global Note is issued in respect of an issue
of 10_% Notes due 2006 (the "Notes") of the Issuers limited to the aggregate
principal amount of U.S. $100,000,000 issued pursuant to an Indenture (the
"Indenture") dated as of November 12, 1996, among the Issuers and Bank of
Montreal Trust Company (the "Trustee"), and is governed by the terms and
conditions of the Indenture governing the Senior Notes, which terms and
conditions are incorporated herein by reference and, except as otherwise
provided herein, shall be binding on the Issuers and the Holder hereof as if
fully set forth herein. Unless the context otherwise requires, the terms used
herein shall have the meanings specified in the Indenture. Until this Regulation
S Temporary Global Note is exchanged for a Regulation S Permanent Global Note,
the Holder hereof shall not be entitled to receive payments of interest hereon;
until so exchanged in full, this Regulation S Temporary Global Note shall in all
other respects be entitled to the same benefits as other Senior Notes under the
Indenture.
This Regulation S Temporary Global Note is exchangeable in whole or in
part for one or more Regulation S Permanent Global Notes or U.S. Global Notes
only (i) on or after the termination of the 40-day restricted period (as defined
in Regulation S) and (ii) upon presentation of certificates (accompanied by an
Opinion of Counsel, if applicable) required by Article 2 of the Indenture. Upon
exchange of this Regulation S Temporary Global Note for one or more Regulation S
Permanent Global Notes or U.S. Global Notes, the Trustee shall cancel this
Regulation S Temporary Global Note.
This Regulation S Temporary Global Note shall not be valid or obligatory
until the certificate of authentication hereon shall have been duly manually
signed by the Trustee in accordance with the Indenture. This Regulation S
Temporary Global Note shall be governed by and construed in accordance with the
laws of the State of the New York. All references to "$," "Dollars," "dollars"
or "U.S. $" are to such coin or currency of the United States of America as at
the time shall be legal tender for the payment of public and private debts
therein.
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE OF EXCHANGES FOR GLOBAL NOTES
The following exchanges of a part of this Regulation S Temporary
Global Note for other Global Notes have been made:
- ----------------------- --------------------------- --------------------------- ----------------------------- ---------------------
<S> <C> <C> <C> <C>
Date of Exchange Amount of decrease in Amount of increase in Principal Amount of Signature of
Principal Amount of Principal Amount of this Global Note authorized officer of
this Global Note this Global Note following such decrease Trustee or Note
(or increase) Custodian
- ----------------------- --------------------------- --------------------------- ----------------------------- ---------------------
</TABLE>
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
B-1-2
EXHIBIT B-1
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM U.S. GLOBAL NOTE TO REGULATION S GLOBAL NOTE
(Pursuant to Section 2.06(a)(i) of the Indenture)
Bank of Montreal Trust Company
77 Water Street
New York, New York 10005
U.S.A.
Re: 10_% Senior Notes due 2006 of Olympus Communications, L.P. and Olympus
Capital Corporation.
Reference is hereby made to the Indenture, dated as of November 12,
1996 (the "Indenture"), among Olympus Communications, L.P. (the "Company"),
Olympus Capital Corporation ("Olympus Capital"), as Issuers and Bank of Montreal
Trust Company, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to $__________ principal amount of Senior Notes
which are evidenced by one or more (check one) |_| Rule 144A Global Notes (CUSIP
No. __________) or |_| Accredited Institutional Investor Global Notes (CUSIP No.
__________) and held with the Depository in the name of
_________________________________________ (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Senior Notes to a Person
who will take delivery thereof in the form of an equal principal amount of
Senior Notes evidenced by one or more Regulation S Global Notes (CUSIP No.
__________), which amount, immediately after such transfer, is to be held with
the Depository through Euroclear or Cedel Bank or both (Common Code
- -------------------------).
In connection with such request and in respect of such Senior
Notes, the Transferor hereby certifies that such transfer has been effected in
compliance with the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with Rule 903 or Rule 904 under the United States
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor hereby further certifies that:
(1) The offer of the Senior Notes was not made to a person in the
United States;
(2) either:
(a) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person
acting on its behalf reasonably believed and believes that
the transferee was outside the United States; or
(b) the transaction was executed in on or through the facilities
of a designated offshore securities market and neither the
Transferor nor any person acting on its behalf knows that the
transaction was prearranged with a buyer in the United
States;
(3) no directed selling efforts have been made in contravention
of the requirements of Rule 904(b) of Regulation S;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest
being transferred as described above is to be held with the
Depository through Euroclear or Cedel Bank or both (Common
Code ____________________).
Upon giving effect to this request to exchange a beneficial
interest in such Rule 144A Global Note or Accredited Institutional Investor
Global Note for a beneficial interest in a Regulation S Global Note, the
resulting beneficial interest shall be subject to the restrictions on transfer
applicable to Regulation S Global Notes pursuant to the Indenture and the
Securities Act and, if such transfer occurs prior to the end of the 40-day
restricted period associated with the initial offering of Senior Notes, the
additional restrictions applicable to transfers of interest in the Regulation S
Temporary Global Note.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuers and Goldman, Sachs & Co. (the
"Purchasers"), the initial purchasers of such Senior Notes being transferred.
Terms used in this certificate and not otherwise defined in the Indenture have
the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
cc: Olympus Communications, L.P.
Olympus Capital Corporation
Goldman, Sachs & Co.
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
B-2-2
EXHIBIT B-2
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE OR
ACCREDITED INSTITUTIONAL INVESTOR GLOBAL NOTE
(Pursuant to Section 2.06(a)(ii) of the Indenture)
Bank of Montreal Trust Company
77 Water Street
New York, New York 10005
U.S.A.
Re: 10_% Senior Notes due 2006 of Olympus Communications, L.P. and Olympus
Capital Corporation.
Reference is hereby made to the Indenture, dated as of November 12,
1996 (the "Indenture"), among Olympus Communications, L.P. (the "Company"),
Olympus Capital Corporation ("Olympus Capital"), as Issuers and Bank of Montreal
Trust Company, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to $__________ principal amount of Senior Notes
which are evidenced by one or more Regulation S Global Notes (CUSIP No.
__________) and held with the Depository through Euroclear or Cedel Bank or both
(Common Code _________________________) in the name of
_________________________________________ (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Senior Notes to a Person
who will take delivery thereof in the form of an equal principal amount of
Senior Notes evidenced by one or more (check one) |_| Rule 144A Global Notes
(CUSIP No. __________) or |_| Accredited Institutional Investor Global Note
(CUSIP No. __________), to be held with the Depository.
In connection with such request and in respect of such Senior
Notes, the Transferor hereby certifies that:
[CHECK ONE]
[GRAPHIC OMITTED] such transfer is being effected pursuant to and in
accordance with Rule 144A under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the Senior Notes are being
transferred to a Person that the Transferor reasonably believes is
purchasing the Senior Notes for its own account, or for one or more
accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in
a transaction meeting the requirements of Rule 144A;
or
[GRAPHIC OMITTED] such transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
[GRAPHIC OMITTED] such transfer is being effected pursuant to an
effective registration statement under the Securities Act;
or
[GRAPHIC OMITTED] such transfer is being effected pursuant to an
exemption from the registration requirements of the Securities Act
other than Rule 144A or Rule 144, and the Transferor hereby further
certifies that the Senior Notes are being transferred in compliance
with the transfer restrictions applicable to the Global Notes and
in accordance with the requirements of the exemption claimed, which
certification is supported by an Opinion of Counsel, provided by
the transferor or the transferee (a copy of which the Transferor
has attached to this certification) in form reasonably acceptable
to the Issuers and to the Registrar, to the effect that such
transfer is in compliance with the Securities Act;
and such Senior Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
Upon giving effect to this request to exchange a beneficial
interest in Regulation S Global Notes for a beneficial interest in Rule 144A
Global Notes or Accredited Institutional Investor Global Notes, as the case may
be, the resulting beneficial interest shall be subject to the restrictions on
transfer applicable to Rule 144A Global Notes or Accredited Institutional
Investor Global Notes, as the case may be, pursuant to the Indenture and the
Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuers and Goldman, Sachs & Co. (the
"Purchasers"), the initial purchasers of such Senior Notes being transferred.
Terms used in this certificate and not otherwise defined in the Indenture have
the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
cc: Olympus Communications, L.P.
Olympus Capital Corporation
Goldman, Sachs & Co.
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
B-3-2
EXHIBIT B-3
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE OR ACCREDITED INSTITUTIONAL INVESTOR
GLOBAL NOTE TO ACCREDITED INSTITUTIONAL INVESTOR GLOBAL NOTE
OR RULE 144A GLOBAL NOTE, RESPECTIVELY
(Pursuant to Section 2.06(a)(iii) of the Indenture)
Bank of Montreal Trust Company
77 Water Street
New York, New York 10005
U.S.A.
Re: 10_% Senior Notes due 2006 of Olympus Communications, L.P. and Olympus
Capital Corporation.
Reference is hereby made to the Indenture, dated as of November 12,
1996 (the "Indenture"), among Olympus Communications, L.P. (the "Company"),
Olympus Capital Corporation ("Olympus Capital"), as Issuers and Bank of Montreal
Trust Company, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to $__________ principal amount of Senior Notes
which are evidenced by one or more (check one) |_| Rule 144A Global Notes (CUSIP
No. __________) or |_| Accredited Institutional Investor Global Notes (CUSIP No.
__________) and held with the Depository in the name of
_________________________________________ (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in such Senior Notes to a
Person who will take delivery thereof in the form of an equal principal amount
of Senior Notes evidenced by one or more (check one) |_| Rule 144A Global Notes
(CUSIP No. __________) or |_| Accredited Institutional Investor Global Notes
(CUSIP No. __________), to be held with the Depository.
In connection with such request and in respect of such Senior
Notes, the Transferor hereby certifies that:
[CHECK ONE]
[GRAPHIC OMITTED] such transfer is being effected pursuant to and in
accordance with Rule 144A under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the Senior Notes are being
transferred to a Person that the Transferor reasonably believes is
purchasing the Senior Notes for its own account, or for one or more
accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in
a transaction meeting the requirements of Rule 144A;
or
[GRAPHIC OMITTED] transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
[GRAPHIC OMITTED] such transfer is being effected pursuant to an
effective registration statement under the Securities Act;
or
[GRAPHIC OMITTED] such transfer is being effected pursuant to an
exemption from the registration requirements of the Securities Act
other than Rule 144A or Rule 144, and the Transferor hereby further
certifies that the Senior Notes are being transferred in compliance
with the transfer restrictions applicable to the Global Notes and
in accordance with the requirements of the exemption claimed, which
certification is supported by an Opinion of Counsel, provided by
the transferor or the transferee (a copy of which the Transferor
has attached to this certification) in form reasonably acceptable
to the Issuers and to the Registrar, to the effect that such
transfer is in compliance with the Securities Act;
and such Senior Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
Upon giving effect to this request to exchange a beneficial
interest in Rule 144A Global Notes or Accredited Institutional Investor Global
Notes for a beneficial interest in Accredited Institutional Investor Global
Notes or Rule 144A Global Notes, as the case may be, the resulting beneficial
interest shall be subject to the restrictions on transfer applicable to Rule
144A Global Notes or Accredited Institutional Investor Global Notes, as the case
may be, pursuant to the Indenture and the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuers and Goldman, Sachs & Co. (the
"Purchasers"), the initial purchasers of such Senior Notes being transferred.
Terms used in this certificate and not otherwise defined in the Indenture have
the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
cc: Olympus Communications, L.P.
Olympus Capital Corporation
Goldman, Sachs & Co.
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
B-4-2
EXHIBIT B-4
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
OF DEFINITIVE NOTES
(Pursuant to Section 2.06(b) of the Indenture)
Bank of Montreal Trust Company
77 Water Street
New York, New York 10005
U.S.A.
Re: 10_% Senior Notes due 2006 of Olympus Communications, L.P. and Olympus
Capital Corporation.
Reference is hereby made to the Indenture, dated as of November 12,
1996 (the "Indenture"), among Olympus Communications, L.P. (the "Company"),
Olympus Capital Corporation ("Olympus Capital"), as Issuers and Bank of Montreal
Trust Company, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to $__________ principal amount of Senior Notes
which are evidenced by one or more Definitive Notes (CUSIP No. __________) and
registered with the Registrar in the name of
_________________________________________ (the "Transferor"). The Transferor has
requested an exchange or transfer of such Definitive Note(s) in the form of an
equal principal amount of Senior Notes evidenced by one or more Definitive Notes
(CUSIP No. __________), to be delivered to the Transferor or, in the case of a
transfer of such Senior Notes, to such Person as the Transferor instructs the
Trustee.
In connection with such request and in respect of the Senior Notes
surrendered to the Trustee herewith for exchange (the "Surrendered Notes"), the
Holder of such Surrendered Notes hereby certifies that:
[CHECK ONE]
[GRAPHIC OMITTED] the Surrendered Notes are being acquired for the
Transferor's own account, without transfer;
or
[GRAPHIC OMITTED] the Surrendered Notes are being transferred to one of
the Issuers;
or
[GRAPHIC OMITTED] Surrendered Notes are being transferred pursuant to and
in accordance with Rule 144A under the United States Securities Act
of 1933, as amended (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the Surrendered Notes are
being transferred to a Person that the Transferor reasonably
believes is purchasing the Surrendered Notes for its own account,
or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such
account is a "qualified institutional buyer" within the meaning of
Rule 144A, in each case in a transaction meeting the requirements
of Rule 144A;
or
[GRAPHIC OMITTED] the Surrendered Notes are being transferred in a
transaction permitted by Rule 144 under the Securities Act;
or
[GRAPHIC OMITTED] the Surrendered Notes are being transferred
pursuant to an effective registration statement under the Securities Act;
or
[GRAPHIC OMITTED] such transfer is being effected pursuant to an
exemption from the registration requirements of the Securities Act
other than Rule 144A or Rule 144, and the Transferor hereby further
certifies that the Senior Notes are being transferred in compliance
with the transfer restrictions applicable to the Global Notes and
in accordance with the requirements of the exemption claimed, which
certification is supported by an Opinion of Counsel, provided by
the transferor or the transferee (a copy of which the Transferor
has attached to this certification) in form reasonably acceptable
to the Issuers and to the Registrar, to the effect that such
transfer is in compliance with the Securities Act;
and the Surrendered Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuers and Goldman, Sachs & Co. (the "Purchasers"), the
initial purchasers of such Senior Notes being transferred. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
cc: Olympus Communications, L.P.
Olympus Capital Corporation
Goldman, Sachs & Co.
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
B-5-2
EXHIBIT B-5
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER FROM RULE
144A GLOBAL NOTE, ACCREDITED INSTITUTIONAL INVESTOR GLOBAL NOTE
OR REGULATION S PERMANENT GLOBAL NOTE TO DEFINITIVE NOTE
(Pursuant to Section 2.06(c) of the Indenture)
Bank of Montreal Trust Company
77 Water Street
New York, New York 10005
U.S.A.
Re: 10_% Senior Notes due 2006 of Olympus Communications, L.P. and Olympus
Capital Corporation.
Reference is hereby made to the Indenture, dated as of November 12,
1996 (the "Indenture"), among Olympus Communications, L.P. (the "Company"),
Olympus Capital Corporation ("Olympus Capital"), as Issuers and Bank of Montreal
Trust Company, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to $__________ principal amount of Senior Notes
which are evidenced by one or more (check one) |_| Rule 144A Global Notes (CUSIP
No. __________) or |_| Accredited Institutional Investor Global Notes (CUSIP No.
__________) or |_| Regulation S Permanent Global Notes (CUSIP No. __________)
and held with the Depository through Euroclear or Cedel Bank or both in the name
of _________________________________________ (the "Transferor"). The Transferor
has requested a transfer of such beneficial interest in the Senior Notes to a
Person who will take delivery thereof in the form of an equal principal amount
of Senior Notes evidenced by one or more Definitive Notes (CUSIP No.
__________), to be registered with the Registrar in the name of
- --------------.
In connection with such request and in respect of the Senior Notes
surrendered to the Trustee herewith for exchange (the "Surrendered Notes"), the
Holder of such Surrendered Notes hereby certifies that:
[CHECK ONE]
[GRAPHIC OMITTED] the Surrendered Notes are being transferred to the
beneficial owner of such Senior Notes;
or
[GRAPHIC OMITTED] the Surrendered Notes are being transferred pursuant to
and in accordance with Rule 144A under the United States Securities
Act of 1933, as amended (the "Securities Act"), and, accordingly,
the Transferor hereby further certifies that the Surrendered Notes
are being transferred to a Person that the Transferor reasonably
believes is purchasing the Surrendered Notes for its own account,
or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such
account is a "qualified institutional buyer" within the meaning of
Rule 144A, in each case in a transaction meeting the requirements
of Rule 144A;
or
[GRAPHIC OMITTED] the Surrendered Notes are being transferred in a
transaction permitted by Rule 144 under the Securities Act;
or
[GRAPHIC OMITTED] the Surrendered Notes are being transferred
pursuant to an effective registration statement under the Securities Act;
or
[GRAPHIC OMITTED] such transfer is being effected pursuant to an
exemption from the registration requirements of the Securities Act
other than Rule 144A or Rule 144, and the Transferor hereby further
certifies that the Senior Notes are being transferred in compliance
with the transfer restrictions applicable to the Global Notes and
in accordance with the requirements of the exemption claimed, which
certification is supported by an Opinion of Counsel, provided by
the transferor or the transferee (a copy of which the Transferor
has attached to this certification) in form reasonably acceptable
to the Issuers and to the Registrar, to the effect that such
transfer is in compliance with the Securities Act;
and the Surrendered Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuers and Goldman, Sachs & Co. (the
"Purchasers"), the initial purchasers of such Senior Notes being transferred.
Terms used in this certificate and not otherwise defined in the Indenture have
the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
cc: Olympus Communications, L.P.
Olympus Capital Corporation
Goldman, Sachs & Co.
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
B-6-3
EXHIBIT B-6
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER FROM
DEFINITIVE NOTE TO RULE 144A GLOBAL NOTE, ACCREDITED INSTITUTIONAL
INVESTOR GLOBAL NOTE OR REGULATION S PERMANENT GLOBAL NOTE
(Pursuant to Section 2.06(e) of the Indenture)
Bank of Montreal Trust Company
77 Water Street
New York, New York 10005
U.S.A.
Re: 10_% Senior Notes due 2006 of Olympus Communications, L.P. and Olympus
Capital Corporation.
Reference is hereby made to the Indenture, dated as of November 12,
1996 (the "Indenture"), among Olympus Communications, L.P. (the "Company"),
Olympus Capital Corporation ("Olympus Capital"), as Issuers and Bank of Montreal
Trust Company, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to $__________ principal amount of Senior Notes
which are evidenced by one or more Definitive Notes (CUSIP No. __________) and
registered with the Registrar in the name of
_________________________________________ (the "Transferor"). The Transferor has
requested a transfer of such Definitive Notes to a Person who will take delivery
thereof in the form of an equal beneficial interest in Global Notes evidenced by
one or more (check one) |_| Rule 144A Global Notes (CUSIP No. ) or |_|
Accredited Institutional Investor Global Notes (CUSIP No. __________) or |_|
Regulation S Permanent Global Notes (CUSIP No. __________), which amount,
immediately after such transfer, is to be held with the Depository through
Euroclear or Cedel Bank or both (Common Code _________________________).
In connection with such request and in respect of the Senior Notes
surrendered to the Trustee herewith for exchange (the "Surrendered Notes"), the
Holder of such Surrendered Notes hereby certifies that:
[CHECK ONE]
[GRAPHIC OMITTED] the Surrendered Notes are being transferred to the
beneficial owner of such Senior Notes;
or
[GRAPHIC OMITTED] the Surrendered Notes are being transferred pursuant to
and in accordance with Rule 144A under the United States Securities
Act of 1933, as amended (the "Securities Act"), and, accordingly,
the Transferor hereby further certifies that the Surrendered Notes
are being transferred to a Person that the Transferor reasonably
believes is purchasing the Surrendered Notes for its own account,
or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such
account is a "qualified institutional buyer" within the meaning of
Rule 144A, in each case in a transaction meeting the requirements
of Rule 144A;
or
[GRAPHIC OMITTED] the Surrendered Notes are being transferred in a
transaction permitted by Rule 144 under the Securities Act;
or
[GRAPHIC OMITTED] the Surrendered Notes are being transferred pursuant
to an effective registration statement under the Securities Act;
or
[GRAPHIC OMITTED] such transfer is being effected pursuant to an
exemption from the registration requirements of the Securities Act
other than Rule 144A or Rule 144, and the Transferor hereby further
certifies that the Senior Notes are being transferred in compliance
with the transfer restrictions applicable to the Global Notes and
in accordance with the requirements of the exemption claimed, which
certification is supported by an Opinion of Counsel, provided by
the transferor or the transferee (a copy of which the Transferor
has attached to this certification) in form reasonably acceptable
to the Issuers and to the Registrar, to the effect that such
transfer is in compliance with the Securities Act;
or
[GRAPHIC OMITTED] such transfer is being effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act, and
accordingly the Transferor hereby further certifies that:
(1) The offer of the Senior Notes was not made to a person in the
United States;
(2) either:
(a) at the time the buy order was originated, the
transferee was outside the United States or the
Transferor and any person acting on its behalf
reasonably believed and believes that the transferee
was outside the United States; or
(b) the transaction was executed in, on or through the
facilities of a designated offshore securities market
and neither the Transferor nor any person acting on its
behalf knows that the transaction was prearranged with
a buyer in the United States;
(3) no directed selling efforts have been made in contravention
of the requirements of Rule 904(b) of Regulation S;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest
being transferred as described above is to be held with the
Depository through Euroclear or Cedel Bank or both (Common
Code _________________________).
Upon giving effect to this request to exchange a Definitive Note
for a beneficial interest in such Rule 144A Global Note, Accredited
Institutional Investor Global Note or Regulation S Global Note, the
resulting beneficial interest shall be subject to the restrictions
on transfer applicable to Global Notes pursuant to the Indenture
and the Securities Act and, if such transfer occurs prior to the
end of the 40-day restricted period associated with the initial
offering of Senior Notes, the additional restrictions applicable to
transfers of interest in the Regulation S Temporary Global Note.
and the Surrendered Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuers and Goldman, Sachs & Co. (the
"Purchasers"), the initial purchasers of such Senior Notes being transferred.
Terms used in this certificate and not otherwise defined in the Indenture have
the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
cc: Olympus Communications, L.P.
Olympus Capital Corporation
Goldman, Sachs & Co.
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Exhibit 10.04
REGISTRATION RIGHTS AGREEMENT
Dated as of November 12, 1996
by and among
Olympus Communications, L.P.,
Olympus Capital Corporation
and
Goldman, Sachs & Co.
<PAGE>
This Registration Rights Agreement (this "Agreement") is made and
entered into as of November 12, 1996 by and among Olympus Communications, L.P.,
a Delaware limited partnership (the "Company"), Olympus Capital Corporation, a
Delaware corporation ("Olympus Capital" and, together with the Company, the
"Issuers") and Goldman, Sachs & Co. (the "Purchasers"), who have agreed to
purchase the 105/8% Senior Notes due 2006 of the Issuers (the "Senior Notes")
pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
November 6, 1996 (the "Purchase Agreement"), by and among the Issuers and the
Purchasers. In order to induce the Purchasers to purchase the Senior Notes, the
Issuers have agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
obligations of the Purchasers set forth in Section 2 of the Purchase Agreement.
The parties hereby agree as follows:
<PAGE>
1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall
have the following meanings:
Act: The Securities Act of 1933, as amended.
Broker-Dealer: Any broker or dealer registered under the Exchange
Act.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be deemed
"Consummated" for purposes of this Agreement upon the occurrence of (i) the
filing and effectiveness under the Act of the Exchange Offer Registration
Statement relating to the Exchange Notes to be issued in the Exchange Offer,
(ii) the maintenance of such Registration Statement continuously effective and
the keeping of the Exchange Offer open for a period not less than the minimum
period required pursuant to Section 3(b) hereof, and (iii) the delivery by the
Issuers to the Registrar under the Indenture of Exchange Notes in the same
aggregate principal amount as the aggregate principal amount of Senior Notes
that were tendered by Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Senior Notes, each
Interest Payment Date.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: The 105/8% Senior Notes due 2006 of the Issuers
(the "Exchange Notes") to be issued pursuant to the Indenture in the Exchange
Offer.
Exchange Offer: The registration by the Issuers under the Act of
the Exchange Notes pursuant to a Registration Statement pursuant to which the
Issuers offer the Holders of all outstanding Transfer Restricted Securities the
opportunity to exchange all such outstanding Transfer Restricted Securities held
by such Holders for Exchange Notes in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities tendered in
such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Purchasers propose to
sell the Senior Notes to certain "qualified institutional buyers," as such term
is defined in Rule 144A under the Act, and to certain institutional "accredited
investors," as such term is defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Act ("Accredited Institutions") and outside the United
States to non-U.S. persons in reliance on Regulation S under the Act.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of November 12, 1996, among the
Issuers and Bank of Montreal Trust Company, as trustee (the "Trustee"), pursuant
to which the Senior Notes are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture and the Notes.
NASD: National Association of Securities Dealers, Inc.
Notes: The Senior Notes and the Exchange Notes.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such prospectus.
Purchasers: As defined in the preamble hereto.
Record Holder: With respect to any Damages Payment Date relating to
Notes, each Person who is a Holder of Notes on the record date with respect to
the Interest Payment Date on which such Damages Payment Date shall occur.
Registrar: Means the Registrar of the Notes as defined in the
Indenture.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Issuers
relating to (a) an offering of Exchange Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, which is filed pursuant to the provisions of
this Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
Senior Notes: As defined in the preamble hereto.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
---
Transfer Restricted Securities: Each Senior Note, until the
earliest to occur of (a) the date on which such Senior Note is exchanged in the
Exchange Offer and entitled to be resold to the public by the Holder thereof
without complying with the prospectus delivery requirements of the Act, (b) the
date on which such Senior Note has been effectively registered under the Act and
disposed of in accordance with a Shelf Registration Statement and (c) the date
on which such Senior Note is distributed to the public pursuant to Rule 144
under the Act or by a Broker-Dealer pursuant to the "Plan of Distribution"
contemplated by the Exchange Offer Registration Statement (including delivery of
the Prospectus contained therein).
Underwritten Registration or Underwritten Offering: A registration
in which securities of the Issuers are sold to an underwriter for reoffering to
the public.
2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled
to the benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed
to be a holder of Transfer Restricted Securities (each, a "Holder") whenever
such Person owns Transfer Restricted Securities.
3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under
applicable law or Commission policy (after the procedures set forth in Section
6(a) below have been complied with), the Issuers shall (i) use their reasonable
efforts to cause to be filed with the Commission as soon as practicable after
the Closing Date, but in no event later than 90 days after the Closing Date, a
Registration Statement under the Act relating to the Exchange Notes and the
Exchange Offer, (ii) use their best efforts to cause such Registration Statement
to become effective no later than 180 days after the Closing Date, (iii) in
connection with the foregoing, file (A) all pre-effective amendments to such
Registration Statement as may be necessary in order to cause such Registration
Statement to become effective, (B) if applicable, a post-effective amendment to
such Registration Statement pursuant to Rule 430A under the Act and (C) cause
all necessary filings in connection with the registration and qualification of
the Exchange Notes to be made under the Blue Sky laws of such jurisdictions as
are necessary to permit Consummation of the Exchange Offer, and (iv) upon the
effectiveness of such Registration Statement, commence the Exchange Offer. The
Exchange Offer Registration Statement shall be on the appropriate form
permitting registration of the Exchange Notes to be offered in exchange for the
Transfer Restricted Securities and to permit resales of Notes held by
Broker-Dealers as contemplated by Section 3(c) below.
(b) The Issuers shall cause the Exchange Offer Registration
Statement to be effective continuously and shall keep the Exchange Offer open
for a period of not less than the minimum period required under applicable
federal and state securities laws to Consummate the Exchange Offer; provided,
however, that in no event shall such period be less than 20 business days. The
Issuers shall cause the Exchange Offer to comply with all applicable federal and
state securities laws. No securities other than the Notes shall be included in
the Exchange Offer Registration Statement. The Issuers shall use their best
efforts to cause the Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration Statement has become
effective, but in no event later than 30 business days thereafter.
(c) The Issuers shall indicate in a "Plan of Distribution" section
contained in the Prospectus contained in the Exchange Offer Registration
Statement that any Broker-Dealer who holds Senior Notes that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from an Issuer), may exchange such
Senior Notes pursuant to the Exchange Offer; however, such Broker-Dealer may be
deemed to be an "underwriter" within the meaning of the Act and may be required,
therefore, to deliver a prospectus meeting the requirements of the Act in
connection with any sales of the Exchange Notes received by such Broker-Dealer
in the Exchange Offer, which prospectus delivery requirement may be satisfied by
the delivery by such Broker-Dealer of the Prospectus contained in the Exchange
Offer Registration Statement. Such "Plan of Distribution" section shall also
contain all other information with respect to such resales by Broker-Dealers
that the Commission may require in order to permit such resales pursuant
thereto, but such "Plan of Distribution" shall not name any such Broker-Dealer
or disclose the amount of Notes held by any such Broker-Dealer except to the
extent required by the Commission as a result of a change in policy after the
date of this Agreement.
The Issuers shall use their best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of Notes acquired by Broker-Dealers for
their own accounts as a result of market-making activities or other trading
activities, and to ensure that such Registration Statement conforms with the
requirements of this Agreement, the Act and the policies, rules and regulations
of the Commission as announced from time to time, for a period of one year from
the date on which the Exchange Offer Registration Statement is declared
effective.
The Issuers shall promptly provide sufficient copies of the latest
version of such Prospectus to Broker-Dealers promptly upon request, at any time
during such one year period in order to facilitate such sales.
4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Issuers are not required
to file an Exchange Offer Registration Statement or permitted to Consummate the
Exchange Offer, in either case, because the Exchange Offer is not permitted by
applicable law or Commission policy (after the procedures set forth in Section
6(a) below have been complied with) or (ii) if any Holder of Transfer Restricted
Securities shall notify the Issuers within 20 business days of the Consummation
of the Exchange Offer (A) that such Holder is prohibited by applicable law or
Commission policy from participating in the Exchange Offer, or (B) that such
Holder may not resell the Exchange Notes acquired by it in the Exchange Offer to
the public without delivering a prospectus and that the Prospectus contained in
the Exchange Offer Registration Statement is not appropriate or available for
such resales by such Holder, or (iii) if any Holder of Transfer Restricted
Securities is a Broker-Dealer and holds Senior Notes acquired directly from an
Issuer or an affiliate of either of the Issuers and shall so notify the Issuers
then the Issuers shall
(x) cause to be filed a shelf registration statement pursuant
to Rule 415 under the Act, which may be an amendment to the Exchange
Offer Registration Statement (in either event, the "Shelf Registration
Statement") on or prior to the earliest to occur of (1) the 30th day
after the date on which the Issuers are notified by the Commission or
otherwise determine that they are not required to file the Exchange Offer
Registration Statement or permitted to Consummate the Exchange Offer, (2)
the 30th day after the date on which the Issuers receive notice from a
Holder of Transfer Restricted Securities as contemplated by clauses (ii)
or (iii) above, and (3) the 60th day after the Closing Date (such
earliest date being the "Shelf Filing Deadline"), which Shelf
Registration Statement shall provide for resales of all Transfer
Restricted Securities the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof; and
(y) use their best efforts to cause such Shelf Registration
Statement to be declared effective by the Commission on or before the
90th day after the Shelf Filing Deadline.
The Issuers shall use their best efforts to keep such Shelf Registration
Statement continuously effective, supplemented and amended as required by the
provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure
that it is available for resales of Notes by the Holders of Transfer Restricted
Securities entitled to the benefit of this Section 4(a), and to ensure that it
conforms with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, until
the third anniversary of the Closing Date or such shorter period that will
terminate when all the Notes covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement or become eligible for
resale pursuant to Rule 144 without volume or other restrictions.
(b) Provision by Holders of Certain Information in Connection
with the Shelf Registration Statement. No Holder of Transfer Restricted
Securities may include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such Holder
furnishes to the Issuers in writing, within 20 business days after receipt of a
request therefor, such information as the Issuers may reasonably request for use
in connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Securities shall
be entitled to Liquidated Damages pursuant to Section 5 hereof unless and until
such Holder shall have used its best efforts to provide all such reasonably
requested information. Each Holder as to which any Shelf Registration Statement
is being effected agrees to furnish promptly to the Issuers all information
required to be disclosed in order to make the information previously furnished
to the Issuers by such Holder not materially misleading.
5. LIQUIDATED DAMAGES
If (i) the Registration Statement required by this Agreement is not
filed with the Commission on or prior to the date specified for such filing in
this Agreement, (ii) such Registration Statement has not been declared effective
by the Commission on or prior to the date specified for such effectiveness in
this Agreement (the "Effectiveness Target Date"), (iii) the Exchange Offer has
not been Consummated within 30 business days after the Effectiveness Target Date
with respect to the Exchange Offer Registration Statement or (iv) any
Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be usable for
its intended purpose without being succeeded immediately by a post-effective
amendment to such Registration Statement that cures such failure and that is
itself immediately declared effective (each such event referred to in clauses
(i) through (iv), a "Registration Default"), the Issuers hereby jointly and
severally agree to pay liquidated damages to each Holder of Transfer Restricted
Securities with respect to the first 90-day period immediately following the
occurrence of such Registration Default, in an amount equal to 0.25% per annum
on the principal amount of Transfer Restricted Securities held by such Holder
for the period that the Registration Default continues. The amount of the
liquidated damages shall increase by an additional 0.25% per annum for each
subsequent 90 day period until all Registration Defaults have been cured, up to
a maximum amount of liquidated damages of 2.0% per annum on the principal amount
of Transfer Restricted Securities. All accrued liquidated damages shall be paid
to Record Holders by the Issuers by wire transfer of immediately available funds
or by federal funds check on each Damages Payment Date, as provided in the
Indenture. Following the cure of all Registration Defaults relating to any
particular Transfer Restricted Securities, the accrual of liquidated damages
with respect to such Transfer Restricted Securities will cease.
All obligations of the Issuers set forth in the preceding paragraph
that are outstanding with respect to any Transfer Restricted Security at the
time such security ceases to be a Transfer Restricted Security shall survive
until such time as all such obligations with respect to such Security shall have
been satisfied in full.
6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with
the Exchange Offer, the Issuers shall comply with all of the provisions of
Section 6(c) below, shall use their best efforts to effect such exchange to
permit the sale of Transfer Restricted Securities being sold in accordance with
the intended method or methods of distribution thereof, and shall comply with
all of the following provisions:
6.(i) If in the reasonable opinion of counsel to the Issuers
there is a question as to whether the Exchange Offer is permitted by
applicable law, the Issuers hereby agree to seek a no-action letter or
other favorable decision from the Commission allowing the Issuers to
Consummate an Exchange Offer for such Senior Notes. The Issuers hereby
agree to pursue the issuance of such a decision to the Commission staff
level but shall not be required to take commercially unreasonable action
to effect a change of Commission policy. The Issuers hereby agree,
however, to (A) participate in telephonic conferences with the
Commission, (B) deliver to the Commission staff an analysis prepared by
counsel to the Issuers setting forth the legal bases, if any, upon which
such counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursue a resolution (which need not be
favorable) by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange
Offer pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Issuers,
prior to the Consummation thereof, a written representation to the
Issuers (which may be contained in the letter of transmittal contemplated
by the Exchange Offer Registration Statement) to the effect that (A) it
is not an affiliate of the Issuers, (B) it is not engaged in, and does
not intend to engage in, and has no arrangement or understanding with any
person to participate in, a distribution of the Exchange Notes to be
issued in the Exchange Offer and (C) it is acquiring the Exchange Notes
in its ordinary course of business. In addition, all such Holders of
Transfer Restricted Securities shall otherwise cooperate in the Issuers'
preparations for the Exchange Offer. Each Holder hereby acknowledges and
agrees that any Broker-Dealer and any such Holder using the Exchange
Offer to participate in a distribution of the securities to be acquired
in the Exchange Offer (1) could not under Commission policy as in effect
on the date of this Agreement rely on the position of the Commission
enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated July
2, 1993, and similar no-action letters (including any no-action letter
obtained pursuant to clause (i) above), and (2) must comply with the
registration and prospectus delivery requirements of the Act in
connection with a secondary resale transaction and that such a secondary
resale transaction should be covered by an effective registration
statement containing the selling security holder information required by
Item 507 or 508, as applicable, of Regulation S-K if the resales are of
Exchange Notes obtained by such Holder in exchange for Senior Notes
acquired by such Holder directly from an Issuer.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Issuers shall, provide a supplemental letter
to the Commission stating (A) that the Issuers are registering the
Exchange Offer in reliance on the position of the Commission enunciated
in Exxon Capital Holdings Corporation (available May 13, 1988), Morgan
Stanley and Co., Inc. (available June 5, 1991) and, if applicable, any
no-action letter obtained pursuant to clause (i) above and (B) including
a representation that the Issuers have not entered into any arrangement
or understanding with any Person to distribute the Exchange Notes to be
received in the Exchange Offer and that, to the best of the Issuers'
information and belief, each Holder participating in the Exchange Offer
is acquiring the Exchange Notes in its ordinary course of business and
has no arrangement or understanding with any Person to participate in the
distribution of the Exchange Notes received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the
Shelf Registration Statement, the Issuers shall comply with all the provisions
of Section 6(c) below and shall use their best efforts to effect such
registration to permit the sale of the Transfer Restricted Securities being sold
in accordance with the intended method or methods of distribution thereof, and
pursuant thereto the Issuers will as expeditiously as possible prepare and file
with the Commission a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale of
the Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof.
(c) General Provisions. In connection with any Registration
Statement and any Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required to permit resales of
Notes by Broker-Dealers), the Issuers shall:
(i) use their best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 or 4 of this Agreement,
as applicable; upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to contain
a material misstatement or omission or (B) not to be effective and usable
for resale of Transfer Restricted Securities during the period required
by this Agreement, the Issuers shall file promptly an appropriate
amendment to such Registration Statement, in the case of clause (A),
correcting any such misstatement or omission, and, in the case of either
clause (A) or (B), use its best efforts to cause such amendment to be
declared effective and such Registration Statement and the related
Prospectus to become usable for their intended purpose(s) as soon as
practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the applicable
period set forth in Section 3 or 4 hereof, as applicable or such shorter
period as will terminate when all Transfer Restricted Securities covered
by such Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act, and to
comply fully with the applicable provisions of Rules 424 and 430A under
the Act in a timely manner; and comply with the provisions of the Act
with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof set
forth in such Registration Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, to confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when the
same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement under the Act or of the suspension by any
state securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, (D) of
the existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the making of
any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading. If at
any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending
the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the
Issuers shall use their best efforts to obtain the withdrawal or lifting
of such order at the earliest possible time;
(iv) furnish to each of the selling Holders and each of the
underwriter(s), if any, before filing with the Commission, copies of any
Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review of such Holders and underwriter(s), if any, for a
period of at least five business days, and the Issuers will not file any
such Registration Statement or Prospectus or any amendment or supplement
to any such Registration Statement or Prospectus (including all such
documents incorporated by reference) to which a selling Holder of
Transfer Restricted Securities covered by such Registration Statement or
the underwriter(s), if any, shall reasonably object within five business
days after the receipt thereof. A selling Holder or underwriter, if any,
shall be deemed to have reasonably objected to such filing if such
Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement or
omission;
(v) promptly prior to the filing of any document that is to
be incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to the selling Holders and to the
underwriter(s), if any, make the Issuers' representatives available for
discussion of such document and other customary due diligence matters,
and include such information in such document prior to the filing thereof
as such selling Holders or underwriter(s), if any, reasonably may
request;
(vi) make available at reasonable times for inspection by the
selling Holders, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney or accountant
retained by such selling Holders or any of the underwriters, all
financial and other records, pertinent corporate documents and properties
of the Issuers and cause the Issuers' officers, directors and employees
to supply all information reasonably requested by any such Holders,
underwriter, attorney or accountant in connection with such Registration
Statement or any post-effective amendment thereto subsequent to the
filing thereof and prior to its effectiveness;
(vii) if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities, information with
respect to the principal amount of Transfer Restricted Securities being
sold to such underwriter(s), the purchase price being paid therefor and
any other terms of the offering of the Transfer Restricted Securities to
be sold in such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as practicable
after the Issuers are notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment;
(viii) cause the Transfer Restricted Securities covered by
the Registration Statement to be rated with the appropriate rating
agencies, if so requested by the Holders of a majority in aggregate
principal amount of Notes covered thereby or the underwriter(s), if any;
(ix) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference);
(x) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; the Issuers hereby
consent to the use of the Prospectus and any amendment or supplement
thereto by each of the selling Holders and each of the underwriter(s), if
any, in connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment or
supplement thereto;
(xi) enter into such agreements (including an underwriting
agreement), and make such representations and warranties, and take all
such other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities pursuant
to any Registration Statement contemplated by this Agreement, all to such
extent as may be requested by the Purchasers or by any Holder of Transfer
Restricted Securities or underwriter in connection with any sale or
resale pursuant to any Registration Statement contemplated by this
Agreement; and whether or not an underwriting agreement is entered into
and whether or not the registration is an Underwritten Registration, the
Issuers shall:
(A) furnish to the Purchasers, each selling Holder and each
underwriter, if any, in such substance and scope as they may
request and as are customarily made by issuers to underwriters in
primary underwritten offerings, (i) upon the date of the
Consummation of the Exchange Offer, (ii) if applicable, the
effectiveness of the Shelf Registration Statement and (iii) upon
the filing of any amendment or supplement to any Registration
Statement:
(1) a certificate, dated the date of Consummation of
the Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, signed by (y) the
President or any Vice President and (z) a principal financial
or accounting officer of each of the Issuers confirming, as
of the date thereof, the matters set forth in paragraphs
(b)(iv), (g), (h), (i) and (j) of Section 7 of the Purchase
Agreement and such other matters as such parties may
reasonably request;
(2) an opinion, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel for
the Issuers, covering the matters set forth in paragraphs
(b), (c), (d) and (e) of Section 7 of the Purchase Agreement
and such other matters as such parties may reasonably
request, and in any event including a statement to the effect
that such counsel has participated in conferences with
officers and other representatives of the Issuers'
representatives of the independent public accountants for the
Issuers and the Purchasers' representatives and the
Purchasers' counsel in connection with the preparation of
such Registration Statement and the related Prospectus and
have considered the matters required to be stated therein and
the statements contained therein, although such counsel has
not independently verified the accuracy, completeness or
fairness of such statements; and that such counsel advises
that, on the basis of the foregoing (relying as to
materiality to a certain extent upon facts provided to such
counsel by officers and other representatives of the Issuers
and without independent check or verification), no facts came
to such counsel's attention that caused such counsel to
believe that the applicable Registration Statement, at the
time such Registration Statement or any post-effective
amendment thereto became effective, and, in the case of the
Exchange Offer Registration Statement, as of the date of
Consummation, contained an untrue statement of a material
fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein
not misleading, or that the Prospectus contained in such
Registration Statement as of its date and, in the case of the
opinion dated the date of Consummation of the Exchange Offer,
as of the date of Consummation, contained an untrue statement
of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light
of the circumstances under which they were made, not
misleading. Without limiting the foregoing, such counsel may
state further that such counsel assumes no responsibility
for, and has not independently verified, the accuracy,
completeness or fairness of the financial statements, notes
and schedules and other financial data included in any
Registration Statement contemplated by this Agreement or the
related Prospectus; and
(3) customary comfort letters, dated as of the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as the
case may be, from the Issuers' independent accountants,
Deloitte & Touche LLP, Ernst & Young LLP and Geo S. Olive &
Co. LLC, in the customary form and covering matters of the
type customarily covered in comfort letters by underwriters
in connection with primary underwritten offerings, and
affirming the matters set forth in the comfort letters
delivered pursuant to Section 7(f) of the Purchase Agreement,
without exception;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Issuers pursuant to this clause (xi), if any.
If at any time the representations and warranties of the Issuers
contemplated in clause (A)(1) above cease to be true and correct, the
Issuers shall so advise the Purchasers and the underwriters(s), if any,
and each selling Holder promptly and, if requested by such Persons, shall
confirm such advice in writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if
any, and their respective counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the securities
or Blue Sky laws of such jurisdictions as the selling Holders or
underwriter(s) may request and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of
the Transfer Restricted Securities covered by any Registration Statement;
provided, however, that the Issuers shall not be required to register or
qualify to transact business where they are not now so qualified or to
take any action that would subject them to the service of process in
suits or to taxation, other than as to matters and transactions relating
to the Registration Statement, in any jurisdiction where they are not now
so subject;
(xiii) shall issue, upon the request of any Holder of Senior
Notes covered by the Shelf Registration Statement, Exchange Notes, having
an aggregate principal amount equal to the aggregate principal amount of
Senior Notes surrendered to the Issuers by such Holder in exchange
therefor or being sold by such Holder; such Exchange Notes to be
registered in the name of such Holder or in the name of the purchaser(s)
of such Notes, as the case may be; in return, the Senior Notes held by
such Holder shall be surrendered to the Issuers for cancellation;
(xiv) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and delivery
of certificates representing Transfer Restricted Securities to be sold
and not bearing any restrictive legends; and enable such Transfer
Restricted Securities to be in such denominations and registered in such
names as the Holders or the underwriter(s), if any, may request at least
two business days prior to any sale of Transfer Restricted Securities
made by such underwriter(s);
(xv) use its best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriter(s),
if any, to consummate the disposition of such Transfer Restricted
Securities, subject to the proviso contained in clause (xii) above;
(xvi) if any fact or event contemplated by clause (d)(iii)(D)
above shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(xvii) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement and provide the Trustees under the Indenture with printed
certificates for the Transfer Restricted Securities which are in a form
eligible for deposit with The Depository Trust Company;
(xviii) cooperate and assist in any filings required to be
made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter") that is required to be retained in accordance with the
rules and regulations of the NASD, and use its reasonable best efforts to
cause such Registration Statement to become effective and approved by
such governmental agencies or authorities as may be necessary to enable
the Holders selling Transfer Restricted Securities to consummate the
disposition of such Transfer Restricted Securities;
(xix) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which need not
be audited) for the twelve-month period (A) commencing at the end of any
fiscal quarter in which Transfer Restricted Securities are sold to
underwriters in a firm or best efforts Underwritten Offering or (B) if
not sold to underwriters in such an offering, beginning with the first
month of the Company's first fiscal quarter commencing after the
effective date of the Registration Statement;
(xx) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith, cooperate with
the Trustee and the Holders of Notes to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use their best
efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be
so qualified in a timely manner;
(xxi) cause all Transfer Restricted Securities covered by the
Registration Statement to be listed on each securities exchange on which
similar securities issued by the Issuers are then listed if requested by
the Holders of a majority in aggregate principal amount of Senior Notes
or the managing underwriter(s), if any; and
(xxii) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Issuers of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof,
or until it is advised in writing (the "Advice") by the Issuers that the use of
the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus. If so
directed by the Issuers, each Holder will deliver to the Issuers (at the
Issuers' expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice. In the event
the Issuers shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to Section
6(c)(iii)(D) hereof to and including the date when each selling Holder covered
by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof or
shall have received the Advice.
7. REGISTRATION EXPENSES
(a) All expenses associated with and incident to the Issuers'
performance of or compliance with this Agreement will be borne by the Issuers,
regardless of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and expenses (including
filings made by the Purchasers or any Holder with the NASD and reasonable
counsel fees and disbursements in connection therewith (and, if applicable, the
fees and expenses of any "qualified independent underwriter" and its counsel
that may be required by the rules and regulations of the NASD)); (ii) all
reasonable fees and disbursements of compliance with federal securities and
state Blue Sky or securities laws (including all fees and expenses of counsel to
the underwriter(s) in connection with compliance with state Blue Sky or
securities laws); (iii) all expenses of printing (including printing
certificates for the Exchange Notes to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Issuers and, subject to Section
7(b) below, the Holders of Transfer Restricted Securities; (v) all application
and filing fees in connection with listing the Notes on a national securities
exchange or automated quotation system pursuant to the requirements hereof; (vi)
all fees and expenses of the Trustee under the Indenture to the extent provided
in the Indenture and of any escrow agent, custodian or exchange agent; and (vii)
all fees and disbursements of independent certified public accountants of the
Issuers (including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Issuers shall, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of their officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Issuers.
(b) In connection with any Registration Statement required by
this Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Issuers shall reimburse the
Purchasers and the Holders of Transfer Restricted Securities being tendered in
the Exchange Offer and/or resold pursuant to the "Plan of Distribution"
contained in the Exchange Offer Registration Statement or registered pursuant to
the Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, who shall be Latham & Watkins or
such other counsel as may be chosen by the Holders of a majority in principal
amount of the Transfer Restricted Securities for whose benefit such Registration
Statement is being prepared.
8. INDEMNIFICATION
(a) Indemnification by the Issuers. Upon any registration of Transfer
Restricted Securities or Broker-Dealer Transfer Restricted Securities, as
applicable, pursuant to Sections 3 and 4 hereof, and in consideration of the
agreements of the Purchasers contained herein, and as an inducement to the
Purchasers to purchase the Notes, the Issuers, jointly and severally, shall and
hereby agree to, (i) indemnify and hold harmless each Holder of Transfer
Restricted Securities and Broker-Dealer Transfer Restricted Securities, as
applicable, to be included in such registration and each person who participates
as a placement or sales agent or as an underwriter in any offering or sale of
such Transfer Restricted Securities or Broker-Dealer Transfer Restricted
Securities, as applicable, against any losses, claims, damages or liabilities,
joint or several, to which such Holder, agent or underwriter may become subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement under which such Transfer Restricted Securities or
Broker-Dealer Transfer Restricted Securities, as applicable, were registered
under the Act, or any preliminary, final or summary Prospectus contained therein
or furnished by the Issuers to any such Holder, agent or underwriter, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and (ii)
reimburse such Holder, such agent and such underwriter for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Issuers shall not be liable under (i) above to any such person
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such Registration Statement, or
preliminary, final or summary Prospectus, or amendment or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Issuers by such person expressly for use therein.
(b) Indemnification by the Holders and any Agents and Underwriters. The
Issuers may require, as a condition to including any Transfer Restricted
Securities or Broker-Dealer Transfer Restricted Securities, as applicable, in
any Registration Statement filed pursuant to Sections 3 and 4 hereof and to
entering into any underwriting agreement, if any, with respect thereto, that the
Issuers shall have received an undertaking reasonably satisfactory to them from
the Holders of such Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities, as applicable, and from each underwriter named in any
such underwriting agreement, if any, severally and not jointly, to (i) indemnify
and hold harmless the Issuers, and, in the case of a Shelf Registration
Statement, all other Holders of Transfer Restricted Securities, against any
losses, claims, damages or liabilities to which the Issuers, or such other
Holders of Transfer Restricted Securities or Broker-Dealer Transfer Restricted
Securities, as applicable, may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in such Registration Statement, or any
preliminary, final or summary Prospectus contained therein or furnished by the
Issuers to any such Holder, agent or underwriter, if any, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Issuers by such Holder or
underwriter expressly for use therein, and (ii) reimburse the Issuers for any
legal or other expenses reasonably incurred by the Company Issuers in connection
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that no such Holder shall be required to undertake
liability to any person under this Section 8(b) for any amounts in excess of the
dollar amount of the proceeds to be received by such Holder from the sale of
such Holder's Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities, as applicable, pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 8, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party other than under the indemnification provisions of or
contemplated by Section 8(a) or 8(b) hereof. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party, and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
Notwithstanding the foregoing, any indemnified party shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless the indemnified party shall have been advised by
counsel that representation of the indemnified party by counsel provided by the
indemnifying party would be inappropriate due to actual or potential conflicting
interests between the indemnifying party and the indemnified party, including
situations in which there are one or more legal defenses available to the
indemnified party that are different from or additional to those available to
the indemnifying party; provided, however, that the indemnifying party shall
not, in connection with any one such action or proceeding or separate but
substantially similar actions or proceedings arising out of the same general
allegations, be liable for the fees and expenses of more than one separate firm
of attorneys at any time for all indemnified parties, except to the extent that
local counsel, in addition to its regular counsel, is required in order to
effectively defend against such action or proceeding. The indemnifying party
shall not be required to indemnify any indemnified party for any amount paid or
payable by such indemnified party in the settlement of any action, proceeding or
investigation without the written consent of the indemnifying party, which
consent shall not be unreasonably withheld. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) Contribution. Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 8(a) or Section 8(b) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. It is understood that
contribution under this subsection (d) is unavailable to indemnified parties to
the same extent that indemnification is unavailable under the proviso at the end
of subsection (a) above. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 8(d) were determined by
pro rata allocation (even if the Holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 8(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds
received by such Holder from the sale of any Transfer Restricted Securities
(after deducting any fees, discounts and commissions applicable thereto) or
Broker-Dealer Transfer Restricted Securities, as applicable, exceeds the amount
of any damages which such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, and no
underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Transfer Restricted Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Holders'
and any underwriters' obligations in this Section 8(d) to contribute shall be
several in proportion to the principal amount of Transfer Restricted Securities
or Broker-Dealer Transfer Restricted Securities, as applicable, registered or
underwritten, as the case may be, by them and not joint.
(e) The obligations of the Issuers under this Section 8 shall be in
addition to any liability which the Issuers may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director and partner of
each Holder, agent and underwriter and each person, if any, who controls any
Holder, agent or underwriter within the meaning of the Act; and the obligations
of the Holders and any underwriters contemplated by this Section 8 shall be in
addition to any liability which the respective Holder or underwriter may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Issuers (including any person who, with his consent,
is named in any Registration Statement as about to become a director of the
Issuers and to each person, if any, who controls the Issuers within the meaning
of the Act.
9. RULE 144A
The Issuers hereby agree with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Act in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144A.
10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such underwriting arrangements.
11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Issuers.
12. MISCELLANEOUS
(a) Remedies. The Issuers agree that monetary damages
(including the liquidated damages contemplated hereby) would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agree to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Issuers will not, on or
after the date of this Agreement enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The Issuers have
not previously entered into any agreement granting any registration rights with
respect to its securities to any Person. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Issuers' securities under any agreement in
effect on the date hereof.
(c) Adjustments Affecting the Notes. The Issuers shall not
take any action, or permit any change to occur, with respect to the Notes that
would materially and adversely affect the ability of the Holders to Consummate
the Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless the Issuers have
obtained the written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered pursuant to
such Exchange Offer may be given by the Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities being tendered or registered.
(e) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested), telex,
telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records
of the Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Issuers:
Olympus Communications, L.P.
Olympus Capital Corporation
c/o Olympus Communications, L.P.
5 West Third Street
Coudersport, PA 16915
Telecopier No.: (814) 274-7098
Attention: Tim Rigas
With a copy to:
Buchanan Ingersoll
1 Oxford Center
301 Grant Street, 20th Floor
Pittsburgh, PA 15219
Telecopier No.: (412) 562-1041
Attention: Lew Davis
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if telecopied; and on
the next business day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall
be concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent such successor
or assign acquired Transfer Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the Notes,
the Indenture and the Purchase Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Issuers with respect to
the Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
<PAGE>
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
Olympus Communications, L.P.
By: ACP Holdings, Inc.
Managing General Partner
By:
Name:
Title:
Olympus Capital Corporation
By:
Name:
Title:
Goldman, Sachs & Co.
By:
Name:
Title:
Exhibit 10.05
TERM NOTE
$70,000,000 Pittsburgh, Pennsylvania
January 4, 1996
FOR VALUE RECEIVED and intending to be legally bound hereby,
Leadership Acquisition Limited Partnership, a Delaware limited partnership (the
"Maker"), hereby promises to pay to Fairbanks Communications, Inc., an Indiana
corporation ("Holder"), SEVENTY MILLION DOLLARS (U.S. $70,000,000), without
interest, on December 30, 1997. Notwithstanding the foregoing, the principal
amount of this Note due on December 30, 1997 (the "Balance Payment") shall be
subject to adjustment as provided in that certain Asset Purchase Agreement dated
as of June 8, 1995 among Olympus Communications, L.P., Holder and Leadership
Security Services, Inc., as amended (the "Asset Purchase Agreement") and as more
particularly described below. All capitalized terms used herein shall have the
same meanings ascribed to such terms in the Asset Purchase Agreement unless
otherwise defined herein. This Note is issued pursuant to the Asset Purchase
Agreement and is entitled to the benefits of that Agreement, the Security
Agreement, the Mortgage and the Agreement of Guaranty and Suretyship.
The Balance Payment shall be subject to adjustment and deferral
as set forth in this paragraph. Attached as Schedule 2.5(e)-1 to the Asset
Purchase Agreement are projections of the number of Basic Subscribers for
certain months of 1995. If, on the Closing Date, the actual number of Basic
Subscribers ("Actual Subscribers") for the month most recently completed prior
to the Closing Date is less than the projected number of Basic Subscribers
("Projected Subscribers") for the same month as specified on Schedule 2.5(e)-1,
the Balance Payment shall be reduced by an amount ("Supplemental Balance
Payment") not to exceed $2,000,000 which shall be equal to the product of (i)
the Projected Subscribers less the Actual Subscribers and (ii) $2,200. If, as of
December 31, 1996, there are at least 52,000 Basic Subscribers of the System,
there shall be no Supplemental Balance Payment but the Balance Payment shall be
reduced by an amount equal to $1 million, which amount shall be due and payable
on August 31, 1999 (or, if such date is not a Business Day, on the next
preceding Business Day) and shall bear interest at the Treasury Rate (as defined
below) from December 31, 1997 until the payment thereof to Holder. If, as of
December 31, 1996, there are less than 52,000 Basic Subscribers of the System,
the Balance Payment shall be reduced only by the greater of $1 million (the
"Alternative Supplemental Balance Payment") or the Supplemental Balance Payment.
If the Supplemental Balance Payment is less than the Alternative Supplemental
Balance Payment, the amount of the difference shall bear interest at the
Treasury Rate from December 31, 1997 until December 31, 1998. The Alternative
Supplemental Balance Payment shall be due and payable on August 31, 1999 (or, if
such date is not a Business Day, on the next preceding Business Day) and shall
bear interest at the Treasury Rate from December 31, 1998 until the payment
thereof to Holder. If the Supplemental Balance Payment is greater than the
Alternative Supplemental Balance Payment, the amount of the difference shall be
due and payable on December 31, 1998 (or, if such date is not a Business Day, on
the next preceding Business Day) and an amount equal to the Alternative
Supplmental Balance Payment shall be due and payable on August 31, 1999 (or, if
such date is not a Business Day, on the next preceding Business Day). The amount
equal to the Alternative Supplmental Balance Payment shall bear interest at the
Treasury Rate from December 31, 1998 until the payment thereof to Holder. All
interest payable pursuant to this paragraph shall be due at maturity. Upon
payment of the Balance Payment on December 30, 1997 (subject to adjustment as
provided herein), Holder agrees to release, or cause the release, of all
security interests, liens and encumbrances granted pursuant to the Security
Agreement and/or the Mortgage. As used herein, the term "Treasury Rate" means
the rate, as the most recently published in the Federal Revenue Statistical
Release H.15 (519), on United States Treasury Constant Maturities adjusted to a
constant maturity of two years.
All amounts due and payable hereunder shall be payable in lawful
money of the United States of America in immediately available funds to Holder
at such place in Indianapolis, Indiana, as the Holder may designate in writing
to the Maker within two business days prior to the due date or at such other
place within the Continental United States as the Holder may designate in
writing to the Maker within two business days prior to the due date.
The Maker shall have the right from time to time to prepay the
principal amount outstanding under this Note in whole or in part without premium
or penalty.
An Event of Default shall mean the occurrence or existence of any
one or more of the following events or conditions (whatever the reason therefor
and whether voluntary, involuntary or effected by operation of law):
(i) The Maker shall fail to pay any principal due under this Note
after such principal shall become due in accordance with the terms hereof;
(ii) A proceeding shall have been instituted in a court having
jurisdiction in the premises seeking a decree or order for relief in respect of
the Maker in an insolvency case under any applicable bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, or a receiver,
liquidator, assignee, custodian, trustee, sequestrator, conservator (or similar
official) of the Maker for any substantial part of its property, or for the
winding up or liquidation of its affairs and such proceeding shall remain
undismissed or unstayed and in effect for a period of 90 consecutive days or
such court shall enter a decree or order granting any of the relief sought in
such proceedings;
(iii) The Maker shall commence a voluntary case under any
applicable bankruptcy, insolvency, reorganization or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the appointment or
taking possession by receiver, liquidator, assignee, custodian, trustee,
sequestrator, conservator (or other similar official) of itself or for any
substantial part of its property or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they become
due, or shall take any action in furtherance of any of the foregoing; or
(iv) The Maker shall convey or encumber or otherwise dispose of
all or any material portion of the Assets prior to December 30, 1997, without
the prior written consent of Holder.
If an Event of Default specified under clause (i) shall occur and
be continuing, the Holder may declare the unpaid principal amount then
outstanding under this Note to be forthwith due and payable, and the same shall
thereupon become and be immediately due and payable to the Holder without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived; and if an Event of Default specified under clauses
(ii), (iii) or (iv) above shall occur, the unpaid principal amount then
outstanding under this Note shall be immediately due and payable, without
protest, demand, or notice of any kind, all of which are hereby expressly
waived.
If any principal amount of this Note is not paid when due such
amount shall bear interest until paid at the Prime Rate published in the Wall
Street Journal from time to time on and after such due or, if the regular
publication of the Prime Rate in the Wall Street Journal shall be discontinued
prior to that date, at the Prime Rate that is the average base rate on corporate
loans charged by the five (5) largest banks in the State of New York, on and
after such date. Any interest payable pursuant to this paragraph shall be in
lieu of (and not in addition to) any other interest payable hereunder.
In the event any one or more of the provisions contained in this
Note shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not effect any
other provision of this Note, and this Note shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
The Maker hereby represents and warrants to the Holder that this
Note has been duly authorized, executed and delivered by the Maker and
constitutes a legal, valid and binding obligation of the Maker enforceable
against it in accordance with its terms, except as the enforceability thereof
may be limited by applicable bankruptcy, reorganization, insolvency, moratorium
or similar laws affecting the enforcement of creditors rights generally and the
possible unavailability of certain equitable remedies.
This Note may not be waived, changed, modified or discharged
orally or except by an agreement in writing signed by the party against whom the
enforcement of waiver, change, modification or discharge is sought.
All notices given to or made upon any party thereto shall be in
writing and shall be delivered or sent to the respective parties at the
addresses and numbers set forth under their respective names on the signature
pages hereof or in accordance with any subsequent unrevoked written direction
from any party to the others. All notices shall be effective (i) in the case of
facsimile, when received; (ii) in the case of hand-delivered notice, when
hand-delivered; and (iii) if given by mail, four (4) days after such
communication is deposited in the mails with first-class postage prepaid, return
receipt requested.
This Note shall be binding upon, inure to the benefit of, and be
enforceable by the Maker and the Holder and their respective successors and
assigns, except that the maker shall not
[THIS SPACE LEFT INTENTIONALLY BLANK]
<PAGE>
have the right to assign this Note or its obligations hereunder without the
prior written consent of Holder.
This Note shall be governed by the internal law of the State of
Florida.
WITNESS the due execution hereof.
LEADERSHIP ACQUISITION
LIMITED PARTNERSHIP
By: Olympus Communications, L.P.,
Managing General Partner
By: ACP Holdings, Inc.,
Managing General Partner
By:
Name:
Title:
Address for Notice:
5 West 3rd Street
Coudersport, PA 16915
Attn: Colin Higgin, Deputy General Counsel
Fairbanks Communications, Inc.
By:
Name:
Title:
Address for Notice:
Leonard J. Betley, Esq.
One American Square
P.O. Box 82001
Indianapolis, IN 46282-0002
Exhibit 10.06
AGREEMENT OF GUARANTY AND SURETYSHIP
In order to induce Fairbanks Communications, Inc., an Indiana
corporation ("Lender"), to extend credit to Leadership Acquisition Limited
Partnership, a Delaware limited partnership ("Borrower"), in connection with
Borrower's purchase of certain assets from Lender, undersigned guarantees and
becomes surety for the full and timely payment, whether by declaration,
acceleration or otherwise, by Borrower of the principal of and interest on that
certain promissory note of even date herewith of Borrower in favor of Lender
("Indebtedness of Borrower" or "Indebtedness"). Undersigned agrees to make such
full payment when Indebtedness of Borrower or any portion thereof is due to be
paid to Lender, irrespective of whether or not any one or more of the following
events have occurred: (i) Lender has made any demand on Borrower; (ii) Lender
has taken any action of any nature against Borrower; (iii) Lender has pursued
any rights which Lender has against any other person who may be liable for the
Indebtedness of Borrower; (iv) Lender holds or has resorted to any security for
Indebtedness of Borrower; or (v) Lender has invoked any other remedies or rights
Lender has available with respect to Indebtedness of Borrower.
1. Undersigned waives and agrees not to enforce any of the rights
of undersigned against Borrower unless and until Borrower is no longer liable in
any respect to Lender, including but not limited to: (i) any right of
undersigned to be subrogated in whole or in part to any right or claim with
respect to any Indebtedness of Borrower or any portion thereof to Lender which
might otherwise arise from partial payment by undersigned to Lender on account
of Indebtedness of Borrower or any portion thereof; and (ii) any right of
undersigned to require the marshalling of assets of Borrower which might
otherwise arise from partial payment by undersigned to Lender on account of
Indebtedness of Borrower or any portion thereof.
2. Undersigned waives any and all notice with respect to: (I)
acceptance by Lender of this agreement; and (ii) the provisions of any note,
instrument or agreement relating to Indebtedness of Borrower; and (iii) any
default in connection with Indebtedness of Borrower.
3. Undersigned waives any presentment, demand, notice of
dishonor or nonpayment, protest, and notice of protest in connection with any
Indebtedness of Borrower.
4. Undersigned agrees that Lender may from time to time and as
many times as Lender, in its sole discretion, deems appropriate do any of the
following without notice to undersigned and without adversely affecting the
validity or enforceability of this agreement (i) release, surrender, exchange,
compromise or settle Indebtedness of Borrower; (ii) change, renew or waive the
terms of Indebtedness of Borrower; (iii) change, renew or waive the terms of any
note, instrument or agreement relating to Indebtedness of Borrower, such rights
in Lender to include without limitation the right to change the rate of interest
charged to Borrower; (iv) grant any extension or indulgence with respect to the
payment to Lender of Indebtedness of Borrower; (v) enter into any agreement of
forbearance with respect to Indebtedness of Borrower; (vi) release, surrender,
exchange or compromise any security held by Lender for the Indebtedness of
Borrower; and (vii) release any person who is a guarantor or surety or who has
agreed to purchase Indebtedness of Borrower.
5. Undersigned further agrees that, if at any time all or any
part of any payment theretofore applied by Lender to any of the Indebtedness is
or must be rescinded or returned by Lender for any reason whatsoever, including
without limitation the insolvency, bankruptcy or reorganization of Borrower,
such Indebtedness shall, for the purposes of this agreement, to the extent that
such payment is or must be rescinded or returned, be deemed to have continued in
existence, notwithstanding such application by Lender, and this agreement shall
continue to be effective or be reinstated, as the case may be, as to such
Indebtedness, all as though such application by Lender had not been made.
6. Undersigned agrees that no failure on the part of Lender to
exercise any of its rights under this agreement shall be a waiver of such rights
or a waiver of any default by undersigned. Undersigned further agrees that no
waiver or modification of any rights of Lender under this agreement shall be
effective unless in writing and signed by an authorized officer of Lender.
Undersigned further agrees that each written waiver shall extend only to the
specific instance actually recited in such written waiver and shall not impair
the rights of Lender in any other respect.
7. Undersigned agrees that this agreement shall be binding upon
undersigned, its successors or assigns. Undersigned further agrees that this
agreement shall inure to the benefit of Lender, its successors and assigns.
8. Undersigned agrees that this agreement and the rights and
obligations of the parties hereto shall be for all purposes governed by and
construed and enforced in accordance with the substantive law of the State of
Florida.
IN WITNESS WHEREOF, undersigned, intending to be legally bound,
has executed this agreement on the 4th day of January, 1996, with the intention
that this agreement shall constitute a sealed instrument.
OLYMPUS COMMUNICATIONS, L.P.
ATTEST: By: ACP HOLDINGS, INC.,
its Managing General Partner
By:
Title:
Exhibit 99.01
CERTIFICATE OF INCORPORATION
OF
OLYMPUS CAPITAL CORPORATION
1. The name of the corporation is:
Olympus Capital Corporation
2. The address of its registered office in the State of Delaware is 1013
Centre Road, Wilmington, Delaware 19805, County of New Castle. The
name of its registered agent at such address is The Prentice-Hall
Corporation System, Inc.
3. The nature of the business or purpose to be conducted or promoted is:
To engage in any lawful act or activity for which
corporations may be organized under the General Corporation
Law of the State of Delaware.
4. The total number of shares of stock which the corporation shall have
authority to issue is 1,000 shares of Common Stock, and the par value
of each of such shares is $0.01, amounting in the aggregate to Ten
Dollars ($10.00).
5. The name and mailing address of the Sole Incorporator is as follows:
Kimberly Ross Lieb
Buchanan Ingersoll Professional Corporation
One Oxford Centre
301 Grant Street, 20th Floor
Pittsburgh, PA 15219
6. The corporation is to have perpetual existence.
7. 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 for any act or omission; provided,
however, that the foregoing shall not eliminate or limit the
liability of a director (a) for any breach of the director's duty or
loyalty to the corporation or its stockholders, (b) for any act or
omission not in good faith or which involves intentional misconduct
or a knowing violation of law, (c) under Section 174 of the General
Corporation law of the State of Delaware, or (d) for any
transaction from which the director derived an improper personal
benefit. Any repeal or modification of this article by the
stockholders of the corporation shall be prospective only, and shall
not adversely affect any limitation on the personal liability of a
director of the corporation existing at the time of such repeal or
modification.
8. In furtherance and not in limitation of the powers conferred by the
General Corporation Law of the State of Delaware, the Board of
Directors of the corporation is expressly authorized to make, alter,
or repeal the By-laws of the corporation.
9. Elections of directors need not be by written ballot except and to be
extent provided in the By-laws of the corporation.
I, Kimberly Ross Lieb, being the Sole Incorporator herein before
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, to make this certificate, hereby
declaring and certifying that this is my act and deed and the facts herein
stated are true, and accordingly have hereunto set my hand this 18th day of
October, 1996.
Kimberly Ross Lieb
Sole Incorporator
Exhibit 99.02
BY-LAWS
of
OLYMPUS CAPITAL CORPORATION
1. Offices
Olympus Capital Corporation (hereinafter the "Corporation") may
have offices and places of business at such places, within or without the State
of Delaware, as the Board of Directors may from time to time determine or the
business of the Corporation may require.
2. Meeting of Stockholders
Place of Meetings.
All meetings of the stockholders for the election of directors
shall be held at such place as may be fixed from time to time by the Board of
Directors, or at such other place either within or without the State of Delaware
as shall be designated from time to time by the Board of Directors and stated in
the notice of the meeting. Meetings of stockholders for any other purpose may be
held at such time and place, within or without the State of Delaware, as shall
be stated in the notice of the meeting or in a duly executed waiver thereof.
Annual Meeting.
Annual meetings of stockholders commencing with the year 1997
shall be held on the date and time as shall be designated from time to time by
the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver thereof.
Special Meetings.
Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, may be called by the President or Board of Directors and shall be
called by the President or Secretary at the request in writing of stockholders
owning not less than one-fifth of the entire capital stock of the Corporation
issued and outstanding and entitled to vote. Such request shall state the
purpose or purposes of the proposed meeting.
Notice.
Written notice of each meeting of stockholders shall be given in
the manner prescribed in Article 4 of these By-laws which shall state the place,
date and hour of the meeting and, in the case of a special meeting, shall state
the purpose or purposes for which the meeting is called. In the case of a
meeting to vote on a proposed merger or consolidation, such notice shall state
the purpose of the meeting and shall contain a copy of the agreement or brief
summary thereof and, in the case of a meeting to vote on a proposed sale, lease
or exchange of all of the Corporation's assets, such notice shall specify that
such a resolution shall be considered. Such notice shall be given to each
stockholder of record entitled to vote at the meeting not less than ten (10) nor
more than sixty (60) days prior to the meeting, except that where the matter to
be acted on is a merger or consolidation of the Corporation or a sale, lease or
exchange of all or substantially all of its assets, such notice shall be given
not less than twenty (20) nor more than sixty (60) days prior to such meeting.
If mailed, notice is given when deposited in the United States mail, postage
prepaid, directed to the stockholder at his address as it appears on the records
of the corporation.
Business.
Business transacted at any special meeting of stockholders shall
be limited to the purpose or purposes stated in the notice.
Quorum and Adjournment.
Except as otherwise provided by statute or the Certificate of
Incorporation, the holders of a majority of the shares of the Corporation issued
and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall be necessary to and shall constitute a quorum for the
transaction of business at each meeting of stockholders but in no event shall a
quorum consist of less than one-third of the shares entitled to vote at the
meeting. If a quorum shall not be present at the time fixed for any meeting, the
stockholders present, in person or by proxy, and entitled to vote thereat shall
have power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present. At such adjourned
meeting at which a quorum shall be present, any business may be transacted which
might have been transacted at the meeting as originally notified. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
Voting.
Unless otherwise provided in the Certificate of Incorporation and
subject to the provisions of Article 6, Section 4 of these By-laws, each
stockholder shall be entitled to one vote, in person or by proxy, for each share
of capital stock held by such stockholder. If the Certificate of Incorporation
provides for more or less than one vote for any share, on any matter, every
reference in these By-laws to a majority or other proportion of stock shall
refer to such majority or other proportion of the votes of such stock.
Vote Required.
When a quorum is present at any meeting, in all matters other
than the election of directors, the vote of the holders of a majority of the
shares present in person or represented by proxy and entitled to vote on the
subject matter shall decide any question brought before such meeting, unless the
question is one upon which by express provision of the statutes or of the
Certificate of Incorporation, a different vote is required in which case such
express provision shall govern and control the decision of such question.
Directors shall be elected by a plurality of the votes of the shares present in
person or represented by proxy at the meeting and entitled to vote on the
election of directors.
Voting Lists.
The officer who has charge of the stock ledger of the Corporation
shall prepare and make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Proxy.
Each stockholder entitled to vote at a meeting of stockholders or
to express consent or dissent to corporate action in writing without a meeting
may authorize another person or persons to act for him by proxy, but no such
proxy shall be voted or acted upon after three (3) years from its date, unless
the proxy provides for a longer period.
A duly executed proxy shall be irrevocable if it states that it
is irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is coupled is an
interest in the stock itself or an interest in the Corporation generally.
Consents.
Any action required or permitted to be taken at any annual or
special meeting of the stockholders may be taken without a meeting, without
prior notice and a vote, if a consent or consents in writing, setting forth the
action so taken, shall be signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote thereon were
present and voted and shall be delivered to the Corporation by delivery to its
registered office in Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to the Corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested. Where corporate action is taken in such manner by less than
unanimous written consent, prompt written notice of the taking of such action
shall be given to all stockholders who have not consented in writing thereto.
Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within sixty days of the
earliest dated consent delivered in the manner required by statute to the
Corporation, written consents signed by a sufficient number of holders to take
action are delivered to the Corporation by delivery to its registered office in
Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
3. Directors
Board of Directors.
The business and affairs of the Corporation shall be managed by
or under the direction of its Board of Directors, which may exercise all such
powers of the Corporation and do all such lawful acts and things, except as
provided in the Certificate of Incorporation.
Number; Election and Tenure.
The number of directors which shall constitute the whole Board
shall be not less than three (3) nor more than nine (9). The first Board shall
consist of five (5) directors. Thereafter, within the limits above specified,
the number of directors shall be determined by resolution of the Board of
Directors or by the stockholders at the annual meeting. The directors shall be
elected at the annual meeting of the stockholders, except as provided in Section
3 of this Article, and each director elected shall hold office until his
successor is elected and qualified or until his earlier resignation or removal.
Any director may resign at any time upon written notice to the Corporation.
Directors need not be stockholders.
Vacancies.
Vacancies in the Board of Directors and newly created
directorships resulting from any increase in the authorized number of directors
may be filled by a majority of the directors then in office, although less than
quorum, or by a sole remaining director, and the directors so chosen shall hold
office until the next annual election and until their successors are duly
elected and shall qualify, or until his earlier resignation or removal. If at
any time, by reason of death or resignation or other cause, the Corporation
should have no directors in office, then any officer or any stockholder or an
executor, administrator, trustee or guardian of a stockholder, or other
fiduciary entrusted with like responsibility for the person or estate of a
stockholder, may call a special meeting of stockholders in accordance with the
provisions of the Certificate of Incorporation or the By-laws or may apply to
the Court of Chancery for a decree summarily ordering an election as provided by
statute.
If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
Meetings.
The Board of Directors of the Corporation may hold its meetings,
and have an office or offices, within or without the State of Delaware.
First Meeting.
The first meeting of each newly elected Board of Directors shall
be held at such time and place as shall be fixed by the vote of the stockholders
at the annual meeting and no notice of such meeting shall be necessary to the
newly elected directors in order legally to constitute the meeting, provided a
quorum shall be present. In the event of the failure of the stockholders to fix
the time or place of such first meeting of the newly elected Board of Directors,
or in the event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
Board of Directors, or as shall be specified in a written waiver signed by all
of the directors.
Notice.
Regular meetings of the Board of Directors may be held without
notice at such time and at such place as shall from time to time be determined
by the Board. A special meeting of the Board may be called by the President or
any Vice President and a special meeting shall be called by the President on the
written request of two directors. Notice of each special meeting of the Board of
Directors, specifying the place, day and hour of the meeting, shall be given in
the manner prescribed in Article 4 of these By-Laws and in this Section 6,
either personally or by mail, by courier, telex or telegram to each director, at
the address or the telex number supplied by the director to the Corporation for
the purpose of notice, at least 48 hours before the time set for the meeting.
Neither the business to be transacted at, nor the purpose of any meeting of the
Board, need be specified in the notice of the meeting.
Quorum and Voting.
Except as may be otherwise specifically provided by statute or by
the Certificate of Incorporation, a majority of the total number of directors
shall constitute a quorum for the transaction of business. The vote of the
majority of the directors present at any meeting at which a quorum is present
shall be the act of the Board of Directors.
Members of the Board or members of any committee designated by
the Board may participate in meetings of the Board or of such committee by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and participation
in such meeting shall constitute presence in person at such meeting.
Consents.
Unless otherwise restricted by the Certificate of Incorporation,
any action required or permitted to be taken at any meeting of the Board of
Directors, or of any committee thereof, may be taken without a meeting if all
members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee.
Committees.
The Board of Directors may, by resolution passed by a majority of
the whole Board, designate one or more committees, each committee to consist of
one or more directors of the Corporation. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. Any such committee, to the
extent provided in the resolution, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending the
By-laws of the Corporation; and, unless the resolution, By-laws or Certificate
of Incorporation provides, no such committee shall have the power or authority
to declare a dividend or to authorize the issuance of stock. In the absence or
disqualification of any member of such committee or committees, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of any such absent or
disqualified member. Such committee or committees shall have such name or names
as may be determined from time to time by resolution adopted by the Board of
Directors.
Committee Minutes.
Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when required.
Compensation of Directors.
The directors as such, and as members of any standing or special
committee, may receive such compensation for their services as may be fixed from
time to time by resolution of the Board. Nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
The directors may be paid their expenses, if any, for attendance
at each meeting of the Board of Directors and may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary as
director. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
Removal of Directors.
Any director or the entire Board of Directors may be removed,
with or without cause, by the holders of a majority of the shares then entitled
to vote at an election of directors.
4. Notices
Form of Notice.
Whenever, under the provisions of the Delaware General
Corporation Law or of the Certificate of Incorporation or of these By-laws,
notice is required to be given to any director or stockholder, it shall not be
construed to mean personal notice, but such notice may be given in writing, by
first class or express mail, addressed to such director or stockholder, at his
address as it appears on the records of the Corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when the same
shall be deposited in the United States mail, except that, in the case of
directors, notice sent by first class mail shall be deemed to have been given
forty-eight hours after being deposited in the United States mail. Whenever,
under these By-laws, notice may be given by telegraph, courier or telex, notice
shall be deemed to have been given when deposited with a telegraph office or
courier service for delivery or, in the case of telex, when dispatched.
Waiver of Notice.
Whenever notice is required to be given under any provisions of
the Delaware General Corporation Law or the Certificate of Incorporation or
these By-laws, a written waiver, signed by the person or persons entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in any written waiver of notice unless
so required by the Certificate of Incorporation or the By-laws.
5. Officers
Selection of Officers.
The officers of the Corporation shall be chosen by the directors
and shall consist of a president and secretary. The Board of Directors may also
choose a treasurer, one or more vice presidents, and one or more assistant
secretaries. Any number of offices may be held by the same person, unless the
Certificate of Incorporation or these By-laws otherwise provide. A failure to
elect officers shall not dissolve or otherwise affect the Corporation.
Term of Office, Removal and Vacancies.
Each officer of the Corporation shall hold his office until his
successor is elected and qualifies or until his earlier resignation or removal.
Any officer may resign at any time upon written notice to the Corporation. Any
officer elected or appointed by the Board of Directors may be removed at any
time by the affirmative vote of a majority of the Board of Directors. Any
vacancy occurring by death, resignation, removal or otherwise, in any office of
the Corporation, shall be filled by the Board of Directors.
Compensation.
The salaries of the officers of the Corporation may be fixed by
the Board of Directors.
Bond.
The Corporation may secure the fidelity of any or all of its
officers or agents by bond or otherwise.
The President.
The President shall be the chief executive officer of the
Corporation, shall preside at all meetings of the stockholders and the Board of
Directors, shall have general and active management of the business of the
Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. He shall have the power to appoint and remove
such subordinate officers and agents other than those actually appointed or
elected by the Board of Directors as the business of the Corporation may
require.
Vice President.
Each Vice President, if any, shall perform such duties as shall
be assigned to him by the Board of Directors or President, and, in the absence
or disability of the President, the most senior in rank of the Vice Presidents
shall perform the duties of the President.
Secretary.
The Secretary shall attend all meetings of the Board of Directors
and all meetings of the stockholders and record all the proceedings of the
meetings of the Board of Directors and the stockholders in a book to be kept for
that purpose and shall perform like duties for the standing committees when
required. He shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of Directors, and shall perform
such other duties as may be prescribed by the Board of Directors or President.
He shall be the custodian of the seal of the Corporation and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring
it, and when so affixed, it may be attested by his signature or by the signature
of such assistant secretary. The Board of Directors may give general authority
to any other officer to affix the seal of the Corporation and to attest the
affixing by his signature.
Assistant Secretary.
The Assistant Secretary, if any, or assistant secretaries, if
more than one, shall perform the duties of the secretary in his or her absence
and shall perform such other duties as the Board of Directors, the President or
the Secretary may from time to time designate.
Treasurer.
The Treasurer shall have custody of the corporate funds and
securities and shall keep, or cause to be kept, full and accurate amounts of
receipts and disbursements in books kept for that purpose. He shall deposit all
monies, and other valuable effects, in the name and to the credit of the
Corporation, in such depository as the Board of Directors shall designate. As
directed by the Board of Directors or the President, he shall disburse monies of
the Corporation, taking proper vouchers for such disbursements and shall render
to the President and directors an account of all his transactions as Treasurer
and of the financial condition of the Corporation. In addition, he shall perform
all the usual duties incident to the office of Treasurer.
6. Certificates of Stock and Transfers
Certificates of Stock; Uncertificated Shares.
The shares of the Corporation shall be represented by
certificates, provided that the Board of Directors may provide by resolution or
resolutions that some or all of any or all classes or series of its stock shall
be uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to the
corporation. Notwithstanding the adoption of such a resolution by the Board of
Directors, every holder of stock represented by certificates and upon request
every holder of uncertificated shares shall be entitled to have a certificate
signed by, or in the name of the Corporation by, the President or any Vice
President, and countersigned by the Secretary or any Assistant Secretary or the
Treasurer, representing the number of shares registered in certificate form. Any
or all the signatures on the certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issue.
Lost, Stolen or Destroyed Stock Certificates; Issuance of New
Certificate or Uncertificated Shares.
The Board of Directors may issue a new certificate of stock or
uncertificated shares in place of any certificate therefore issued by it,
alleged to have been lost, stolen or destroyed, and the Corporation may require
the owner of the lost, stolen or destroyed certificate, or his legal
representative to give the Corporation a bond sufficient to indemnify it against
any claim that may be made against it on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new certificate or
uncertificated shares.
Record Date.
In order that the Corporation may determine the stockholders
entitled to notice of, or to vote at, any meeting of stockholders or at any
adjournment thereof in respect of which a new record date is not fixed, or to
consent to corporate action without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock,
or for the purpose of any other lawful action, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors and which
date shall not be more than sixty (60) nor less than ten (10) days before the
date of any such meeting, nor more than ten (10) days after the date on which
the date fixing the record date for the consent of stockholders without a
meeting is adopted by the Board of Directors, nor more than sixty (60) days
prior to any other such action. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
Registered Stockholders.
The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as of any record date fixed or
determined pursuant to Section 3 of this Article as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, regardless of whether it shall
have express or other notice thereof, except as otherwise provided by the laws
of the State of Delaware.
7. General Provisions
Dividends.
Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate of Incorporation, if any, may be declared by
the Board of Directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the Corporation's
capital stock, subject to the provisions of the Certificate of Incorporation.
Liability of Directors as to Dividends or Stock Redemption.
A member of the board of directors, or a member of any committee
designated by the board of directors, shall be fully protected in relying in
good faith upon the records of the Corporation and upon such information,
opinions, reports or statements presented to the Corporation by any of its
officers or employees, or committees of the Board of Directors, or by any other
person as to matters the director reasonably believes are within such other
person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Corporation, as to the value and amount
of the assets, liabilities and/or net profits of the Corporation, or any other
facts pertinent to the existence and amount of surplus or other funds from which
dividends might properly be declared and paid, or with which the Corporation's
stock might properly be purchased or redeemed.
Reserve for Dividends.
Before declaring any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall think conducive to the interest of the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Annual Statement.
The Board of Directors shall present at each annual meeting, and
at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
Corporation.
Signing Checks, Notes, etc.
All checks or other orders for the payment of money and all notes
or other instruments evidencing indebtedness of the Corporation shall be signed
on its behalf by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate, or, if not so designated, by
the President or any Vice President of the Company.
Fiscal Year.
The fiscal year of the Corporation shall end on March 31 of each
year or as otherwise determined by resolution of the Board of Directors.
Seal.
The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
Voting of Securities of Other Corporations.
In the event that the Corporation shall, at any time or from time
to time, own and have power to vote any securities (including but not limited to
shares of stock or partnership interests) of any other issuer, they shall be
voted by such person or persons, to such extent and in such manner, as may be
determined by the Board of Directors or, if not so determined, by any duly
elected officer of the Corporation.
8. Indemnification
Indemnification.
Except as otherwise provided below, 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, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding") and
whether or not by or in the right of the Corporation or otherwise, by reason of
the fact that he or she, or a person of whom he or she is the heir, executor or
administrator, is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as director or officer or trustee 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 or officer or trustee, or in any other capacity while serving as a
director or officer or trustee, shall be indemnified and held harmless by the
Corporation to the fullest extent permitted by law, as the same exist or may
hereinafter 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 are permitted the corporation to provide prior to
such amendment), against all reasonable expenses, including attorneys' fees, and
any liability and loss, including judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement, incurred or paid by such
person in connection therewith, and such indemnification shall continue as to a
person who has ceased to be a director or officer or trustee; provided, however,
that except as provided in paragraph (b) hereof, the Corporation shall indemnify
any such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this section 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 the final disposition thereof;
provided, however, that to the extent required by the law, the payment of such
expenses incurred by an officer or director in advance of the final disposition
of a proceeding shall be made only upon receipt of an undertaking, by or on
behalf of such person, to repay all amounts so advanced if it shall ultimately
be determined that he or she is not entitled to be indemnified under this
section or otherwise. The right to indemnification and advancement of expenses
provided herein shall continue as to a person who has ceased to be a director or
officer and shall inure to the benefit of the heirs, executors and
administrators of such person.
Right to Claimant to Bring Suit.
If a claim under Section 1 of this Article is not paid in full by
the Corporation within thirty (30) days after a written claim has been received
by the Corporation, the claimant may, at any time thereafter, bring suit against
the Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim.
Non-Exclusivity of Rights.
The right to indemnification and the payment of expenses incurred
in defending a proceeding in advance of a final disposition conferred in this
Article 8 shall not be exclusive of any other rights to which those seeking
indemnification or advancement of expenses hereunder may be entitled under any
bylaw, agreement, vote of stockholders or directors or otherwise, both as to
action in his official capacity and as to action in any other capacity while
holding that office.
Funding.
The Corporation may create a fund of any nature, which may, but
need not be, under the control of a trustee, or otherwise secure or insure in
any manner its indemnification obligations, whether arising under or pursuant to
this bylaw or otherwise.
9. Amendments
These By-laws may be altered, amended or repealed, and new
By-laws may be adopted, by the stockholders, or by the Board of Directors when
such power is conferred upon the Board of Directors by the Certificate of
Incorporation.
Dated: October 18, 1996
Exhibit 99.03
STATE OF DELAWARE
CERTIFICATE
OF
LIMITED PARTNERSHIP
TO THE SECRETARY OF STATE OF THE STATE OF DELAWARE:
The undersigned, for the purposes of forming a limited
partnership under the provisions of the Delaware Code Annotated, Title 17,
ss.201, does hereby execute and file the following Certificate of Limited
Partnership:
<TABLE>
<CAPTION>
1........ The name of limited partnership:
Olympus Communications, L.P.
2........ The address of the registered office in the State of Delaware:
<S> <C> <C> <C> <C>
NAME ADDRESS CITY STATE ZIP CODE
The Prentice-Hall 229 South State Street Dover Delaware 19901
Corporation System, Inc.
3........ The address of the registered agent in the State of Delaware:
NAME ADDRESS CITY STATE ZIP CODE
The Prentice-Hall 229 South State Street Dover Delaware 19901
Corporation System, Inc.
4........ The name and business address of each general partner:
NAME ADDRESS CITY STATE ZIP CODE
ACP Holdings, Inc. 5 West Third Street Coudersport PA 16915
P. O. Box 472
Dorellenic Cable 5 West Third Street Coudersport PA 16915
Partners P. O. Box 472
</TABLE>
OLYMPUS COMMUNICATIONS, L.P.
ACP Holdings, Inc., General Partner
Dated: October 25, 1989 By: /s/ Michael J. Rigas
Michael J. Rigas, Vice President
Dorellenic Cable Partners, General Partner
Dated: October 25, 1989 By: /s/ Michael J. Rigas
Michael J. Rigas, General Partner
<PAGE>
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF LIMITED PARTNERSHIP
OF
OLYMPUS COMMUNICATIONS, L.P.
It is hereby certified that:
FIRST: The name of the limited partnership (hereinafter called the
"Partnership") is Olympus Communications, L.P.
SECOND: Pursuant to provisions of Section 17-202, Title 6, of the Delaware Code
Annotated, the Certificate of Limited Partnership is amended as follows:
Item 4 of the Certificate of Limited Partnership stating the
names and addresses of the general partners of the Partnership
is hereby amended to reflect the withdrawal of Dorellenic
Cable Partners as a general partner of the Partnership.
The undersigned, a general partner of the Partnership, executed this Certificate
of Amendment on October 29, 1992.
ACP HOLDINGS, INC., General Partner
By: /s/ Daniel R. Milliard
Name: Daniel R. Milliard
Title: Vice President
<PAGE>
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF LIMITED PARTNERSHIP
OF
OLYMPUS COMMUNICATIONS, L.P.
It is hereby certified that:
FIRST: The name of the limited partnership (hereinafter
called the "Partnership") is Olympus Communications, L.P.
SECOND: Pursuant to provisions of Section 17-202, Title 6,
Delaware Code, the Certificate of Limited Partnership is amended to reflect the
addition of a new General Partner to the Partnership, that being Cable GP, Inc.
with an address of 1400 Centerpark Boulevard, Suite 600, West Palm Beach,
Florida 33401.
The undersigned, the general partners of the Partnership,
executed this Certificate of Amendment on March 14, 1995.
OLYMPUS COMMUNICATIONS, L.P.
By ACP Holdings, Inc.
Managing General Partner
By: /s/ LeMoyne T. Zacherl
Name: LeMoyne T. Zacherl
Title: Vice President
By: Cable GP, Inc.
New General Partner
By: /s/ L. J. Gelber
Name: L. J. Gelber
Title: President
