Exhibit 10.2
CSC HOLDINGS, INC.,
Issuer,
to
U.S. BANK NATIONAL ASSOCIATION,
Trustee
Indenture
Dated as of June 4, 2008
$500,000,000
8½% Senior Notes due 2015
8½% Series B Senior Notes due
2015
Reconciliation and Tie Between
Trust Indenture Act
of 1939 and Indenture, dated as
of June 4, 2008
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Trust Indenture
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Act Section
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Indenture Section
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§10(a)(1)
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608
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(a)(2)
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608
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(b)
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607, 609
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§311(a)
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612
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(b)
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612
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§312(a)
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607
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(b)
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607
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(c)
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701
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§313
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702
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§314(a)
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703
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(a)(4)
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1013
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(c)(1)
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103
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(c)(2)
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103
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(e)
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103
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§315(b)
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601
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§316(a)(last sentence)
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101 (“Outstanding”)
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(a)(1)(A)
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502, 512
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(a)(1)(B)
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513
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(b)
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508
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(c)
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105(d)
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§317(a)(1)
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503
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(a)(2)
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504
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(b)
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1003
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§318(a)
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108
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Note:
This reconciliation and tie shall
not, for any purpose, be deemed to be a part of this
Indenture.
TABLE OF CONTENTS
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PAGE
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RECITALS OF THE COMPANY
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1
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ARTICLE One DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
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1
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Section 101.
Definitions
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1
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“Acquired
Indebtedness”
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2
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“Additional
Securities”
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2
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“Adjusted Treasury
Rate”
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2
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“Affiliate”
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2
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“Agent
Members”
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2
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“Annualized Operating Cash
Flow”
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2
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“Average
Life”
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2
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“Bank Credit
Agreement”
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2
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“Banks”
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3
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“Board of
Directors”
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3
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“Board
Resolution”
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3
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“Book-Entry
Security”
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3
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“Business
Day”
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3
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“Capital
Stock”
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3
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“Capitalized Lease
Obligation”
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3
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“Cash Flow
Ratio”
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3
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“Commission”
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3
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“Common
Stock”
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4
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“Company”
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4
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“Company Request” or
“Company Order”
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4
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“Comparable Treasury
Issue”
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4
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“Comparable Treasury
Price”
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4
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“Consolidated Net Tangible
Assets”
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4
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“Corporate Trust
Office”
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4
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“corporation”
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4
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“Cumulative Cash Flow
Credit”
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5
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“Cumulative Interest
Expense”
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5
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“Debt”
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5
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“Default”
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6
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“Depository”
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6
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“Disqualified
Stock”
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6
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“Event of
Default”
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6
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“Exchange
Act”
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6
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“Exchange
Offer”
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6
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“Exchange Offer Registration
Statement”
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6
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“Exchange
Securities”
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6
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“generally accepted accounting
principles”
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6
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PAGE
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“Global
Security”
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6
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“guarantee”
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7
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“Holder”
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7
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“Indebtedness”
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7
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“Indenture”
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7
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“Initial Interest Payment
Date”
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7
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“Initial
Purchasers”
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7
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“Initial
Securities”
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7
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“Interest Payment
Date”
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7
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“Interest Swap
Obligations”
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8
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“Investment”
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8
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“Lease”
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8
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“Lien”
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8
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“Liquidated
Damages”
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8
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“Maturity”
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8
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“Officers’
Certificate”
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9
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“Operating Cash
Flow”
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9
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“Opinion of
Counsel”
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9
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“Outstanding”
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9
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“Paying
Agent”
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10
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“Permitted
Liens”
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10
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“Person”
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12
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“Physical
Security”
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12
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“Predecessor
Security”
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12
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“Preferred
Stock”
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12
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“Qualified Institutional
Buyer” or “QIB”
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12
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“Quotation
Agent”
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12
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“Receivables and Related
Assets”
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13
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“Redemption
Date”
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13
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“Redemption
Price”
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13
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“Reference Treasury
Dealer”
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13
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“Reference Treasury Dealer
Quotations”
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13
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“Refinancing
Indebtedness”
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13
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“Registered
Securities”
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13
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“Registration Rights
Agreement”
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13
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“Regular Record
Date”
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14
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“Regulation S Global
Security”
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14
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“Responsible
Officer”
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14
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“Restricted
Payment”
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14
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“Restricted
Security”
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15
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“Restricted
Subsidiary”
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15
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“Rule 144A Global
Security”
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15
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“Securities
Act”
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15
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PAGE
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“Securities Issue
Date”
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15
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“Securitization
Subsidiary”
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15
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“Security” and
“Securities”
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16
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“Security Register” and
“Security Registrar”
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16
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“Senior
Indebtedness”
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16
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“Shelf Registration
Statement”
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16
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“Special Record
Date”
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16
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“Stated
Maturity”
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16
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“Stock
Payment”
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16
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“subsidiary”
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16
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“Subsidiary”
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17
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“Trust Indenture
Act”
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17
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“Trustee”
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17
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“Unrestricted
Subsidiary”
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17
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“Voting
Stock”
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17
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Section 102. Other
Definitions
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17
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Section 103. Compliance
Certificates and Opinions
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18
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Section 104. Form of
Documents Delivered to Trustee
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18
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Section 105. Acts of
Holders
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19
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Section 106. Notices, Etc. to
Trustee and Company
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20
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Section 107. Notice to Holders;
Waiver
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20
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Section 108. Conflict of Any
Provision of Indenture with Trust Indenture Act
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21
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Section 109. Effect of Headings
and Table of Contents
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21
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Section 110. Successors and
Assigns
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21
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Section 111. Separability
Clause
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21
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Section 112. Benefits of
Indenture
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21
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Section 113. Governing Law;
Waiver of Jury Trial
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22
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Section 114. Legal
Holidays
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22
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Section 115. No Recourse
Against Others
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22
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ARTICLE Two SECURITY FORMS
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22
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Section 201. Forms Generally;
Incorporation of Form in Indenture
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22
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Section 202. Form of Face
of Security
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23
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Section 203. Form of
Reverse of Security
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26
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Section 204. Form of
Trustee’s Certificate of Authentication
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30
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Section 205. Form of
Legend on Restricted Securities
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31
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Section 206. Form of
Legend for Book-Entry Securities
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32
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ARTICLE Three THE SECURITIES
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32
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Section 301. Title and
Terms
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32
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Section 302.
Denominations
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33
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Section 303. Execution,
Authentication, Delivery and Dating
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33
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Section 304. Temporary
Securities
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35
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Section 305. Registration,
Registration of Transfer and Exchange
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36
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PAGE
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Section 306. Mutilated,
Destroyed, Lost and Stolen Securities
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37
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Section 307. Payment of
Interest; Interest Rights Preserved
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38
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Section 308. Persons Deemed
Owners
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39
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Section 309.
Cancellation
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39
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Section 310. Computation of
Interest
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40
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Section 311. Registration
Rights of Holders of Initial Securities
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40
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Section 312. ISIN and CUSIP
Numbers
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40
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Section 313. Book-Entry
Provisions for Global Securities
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40
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Section 314. Special Transfer
Provisions
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42
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ARTICLE Four SATISFACTION AND
DISCHARGE
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44
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Section 401. Satisfaction and
Discharge of Indenture
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44
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Section 402. Application of
Trust Money
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45
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ARTICLE Five REMEDIES
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45
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Section 501. Events of
Default
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45
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Section 502. Acceleration of
Maturity; Rescission
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47
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Section 503. Collection of
Indebtedness and Suits for Enforcement by Trustee
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48
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Section 504. Trustee
May File Proofs of Claim
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49
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Section 505. Trustee
May Enforce Claims Without Possession of Securities
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50
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Section 506. Application of
Money Collected
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50
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Section 507. Limitation on
Suits
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50
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Section 508. Unconditional
Right of Holders to Receive Principal and Interest
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51
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Section 509. Restoration of
Rights and Remedies
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51
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Section 510. Rights and
Remedies Cumulative
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51
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Section 511. Delay or Omission
Not Waiver
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52
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Section 512. Control by
Holders
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52
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Section 513. Waiver of Past
Defaults
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52
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Section 514. Undertaking for
Costs
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53
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Section 515. Waiver of Stay,
Extension or Usury Laws
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53
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ARTICLE Six THE TRUSTEE
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53
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Section 601. Certain Duties and
Responsibilities
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53
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Section 602. Certain Rights of
Trustee
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54
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Section 603. Not Responsible
for Recitals or Issuance of Securities
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56
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Section 604. May Hold
Securities
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56
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Section 605. Money Held in
Trust
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57
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Section 606. Compensation and
Reimbursement
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57
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Section 607. Conflicting
Interests
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58
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Section 608. Corporate Trustee
Required; Eligibility
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58
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Section 609. Resignation and
Removal; Appointment of Successor
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58
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Section 610. Acceptance of
Appointment by Successor
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59
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Section 611. Merger,
Conversion, Consolidation or Succession to Business
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60
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Section 612. Preferential
Collection of Claims Against Company
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60
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Section 613. Trustee’s
Application for Instructions from the Company
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60
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PAGE
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Section 614. Notice of
Defaults
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60
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ARTICLE Seven HOLDERS’ LISTS AND REPORTS
BY TRUSTEE AND COMPANY
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61
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Section 701. Disclosure of
Names and Addresses of Holders
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61
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Section 702. Reports by
Trustee
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61
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Section 703. Reports by
Company
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61
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ARTICLE Eight CONSOLIDATION,
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MERGER, CONVEYANCE, TRANSFER OR
LEASE
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62
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Section 801. Company
May Consolidate, Etc., Only on Certain Terms
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62
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Section 802. Successor
Substituted
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63
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ARTICLE Nine SUPPLEMENTAL INDENTURES
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63
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Section 901. Supplemental
Indentures Without Consent of Holders
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63
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Section 902. Supplemental
Indentures with Consent of Holders
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64
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Section 903. Execution of
Supplemental Indentures
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65
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Section 904. Effect of
Supplemental Indentures
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65
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Section 905. Conformity with
Trust Indenture Act
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65
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Section 906. Reference in
Securities to Supplemental Indentures
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65
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ARTICLE Ten COVENANTS
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66
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Section 1001. Payment of
Principal and Interest
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66
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Section 1002. Maintenance of
Office or Agency
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66
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Section 1003. Money for
Security Payments to Be Held in Trust
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66
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Section 1004. Corporate
Existence
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68
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Section 1005. Payment of Taxes
and Other Claims
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68
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Section 1006. Maintenance of
Properties
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68
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Section 1007. Limitation on
Indebtedness
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68
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Section 1008. Limitation on
Liens
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69
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Section 1009. Limitation on
Restricted Payments
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69
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Section 1010. Limitation on
Investments in Unrestricted Subsidiaries and Affiliates
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70
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Section 1011. Transactions with
Affiliates
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70
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Section 1012. Provision of
Financial Statements
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71
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Section 1013. Statement as to
Compliance
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71
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Section 1014. Waiver of Certain
Covenants
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71
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Section 1015. Statement by
Officers as to Default
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72
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ARTICLE Eleven REDEMPTION OF
SECURITIES
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72
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Section 1101. Notices to
Trustee
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72
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Section 1102. Selection of
Securities to Be Redeemed
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72
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Section 1103. Notice of
Redemption
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73
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Section 1104. Effect of Notice
of Redemption
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73
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Section 1105. Deposit of
Redemption Price
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74
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Section 1106. Securities
Redeemed in Part
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74
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Section 1107. Optional
Redemption
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74
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ARTICLE Twelve DEFEASANCE AND COVENANT
DEFEASANCE
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75
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Section 1201. Option to Effect
Defeasance or Covenant Defeasance
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75
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PAGE
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Section 1202. Defeasance and
Discharge
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75
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Section 1203. Covenant
Defeasance
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76
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Section 1204. Conditions to
Defeasance or Covenant Defeasance
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76
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Section 1205. Deposited Money
and U.S. Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions
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78
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Section 1206.
Reinstatement
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79
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TESTIMONIUM
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81
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SIGNATURES AND SEALS
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81
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ACKNOWLEDGMENTS
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81
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EXHIBIT A
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List of Restricted
Subsidiaries
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INDENTURE dated as of June 4,
2008 between CSC Holdings, Inc., a Delaware corporation
(hereinafter called the “Company”), and U.S. Bank
National Association, a national banking association, trustee
(hereinafter called the “Trustee”).
RECITALS OF THE
COMPANY
The Company has duly authorized the
creation of an issue of its 8½% Senior Notes due 2015
(hereinafter called the “Initial Securities”) and its
8½% Series B Senior Notes due 2015 (the “Exchange
Securities”, and together with the Initial Securities and any
Additional Securities, the “Securities”), of
substantially the tenor and amount hereinafter set forth, and to
provide therefor the Company has duly authorized the execution and
delivery of this Indenture;
Upon the issuance of the Exchange
Securities, if any, or the effectiveness of the Exchange Offer
Registration Statement (as defined herein) or, under certain
circumstances, the effectiveness of the Shelf Registration
Statement (as defined herein), this Indenture shall be subject to,
and shall be governed by, the provisions of the Trust Indenture Act
that are required to be part of this Indenture and shall to the
extent applicable be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE
WITNESSETH:
For and in consideration of the
premises and the purchase of the Securities by the Holders thereof,
it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101.
Definitions.
For all purposes of this Indenture,
except as otherwise expressly provided or unless the context
otherwise requires:
(a)
the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(b)
all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c)
all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles (as defined herein); and
(d)
the words “herein”, “hereof” and
“hereunder” and other words of similar import refer to
this Indenture as a whole and not to any particular Article,
Section or other subdivision.
“Acquired
Indebtedness” means Indebtedness of a Person
(a) existing at the time such Person is merged with or into
the Company or a Subsidiary or becomes a Subsidiary or
(b) assumed in connection with the acquisition of assets from
such Person.
“Additional
Securities” means an unlimited maximum aggregate principal
amount of Securities (other than the Initial Securities and
Exchange Securities) issued under this Indenture in accordance with
Section 201 and subject to Section 1007
hereof.
“Adjusted
Treasury Rate” means, with respect to any redemption date,
the rate per annum equal to the semiannual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
redemption date.
“Affiliate”
means, with respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For
the purposes of this definition, “control”, when used
with respect to any specified Person, means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the
foregoing.
“Agent
Members” has the meaning specified in
Section 313.
“Annualized
Operating Cash Flow” means, for any period of three complete
consecutive calendar months, an amount equal to Operating Cash
Flow for such period multiplied by four.
“Average
Life” means, at any date of determination with respect to any
debt security, the quotient obtained by dividing (a) the sum
of the products of (i) the number of years from such date of
determination to the dates of each successive scheduled principal
payment of such debt security and (ii) the amount of such
principal payment by (b) the sum of all such principal
payments.
“Bank
Credit Agreement” means the Credit Agreement, dated as of
February 24, 2006 among the Company, the Restricted
Subsidiaries party thereto, the Lenders party thereto, Bank of
America, N.A., as Administrative Agent, Collateral Agent and L/C
Issuer, Banc of America Securities LLC and Citigroup Global Markets
Inc., as Joint Lead Arrangers, Banc of Americas Securities LLC,
Citigroup Global Markets Inc. and JPMorgan Securities, Inc.,
as Book Runners on the Revolving Credit Facility and the Term A
Facility, Citibank, N.A., as Syndication Agent, and Credit Suisse,
Bear Stearns Corporate Lending Inc., JPMorgan Securities, Inc.
and Merrill Lynch Capital Corporation, as Co-Documentation Agents,
as amended by Amendment
2
No. 1 thereto, dated
March 27, 2006, and Amendment No. 2 thereto, dated
March 29, 2006, as in effect on the date hereof and as such
agreement may be amended or replaced from time to time.
“Banks” means the
lenders from time to time who are parties to the Bank Credit
Agreement.
“Board of
Directors” means the board of directors of the Company or any
duly authorized committee of such board.
“Board
Resolution” means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification and delivered to the
Trustee.
“Book-Entry
Security” means a Security represented by a Global Security
and registered in the name of the nominee of the
Depository.
“Business
Day” means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City
of New York are authorized or obligated by law, regulation or
executive order to close.
“Capital
Stock” means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated)
of such Person’s capital stock whether now outstanding or
issued after the date of this Indenture, including, without
limitation, all Common Stock, Preferred Stock and Disqualified
Stock.
“Capitalized Lease
Obligation” means any obligation of a Person to pay rent or
other amounts under a lease with respect to any property, whether
real, personal or mixed, acquired or leased by such Person and used
in its business that is required to be accounted for as a liability
on the balance sheet of such Person in accordance with generally
accepted accounting principles, and the amount of such Capitalized
Lease Obligation shall be the amount so required to be accounted
for as a liability.
“Cash Flow
Ratio” means, as at any date, the ratio of (a) the sum
of the aggregate outstanding principal amount of all Indebtedness
of the Company and the Restricted Subsidiaries determined on a
consolidated basis, but excluding all Interest Swap Obligations
entered into by the Company or any Restricted Subsidiary and one of
the Banks outstanding on such date, plus (but without duplication
of Indebtedness supported by letters of credit) the aggregate
undrawn face amount of all letters of credit outstanding on such
date to (b) Annualized Operating Cash Flow determined as at
the last day of the most recent month for which financial
information is available.
“Commission”
means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act or, if at any time
after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such
time.
3
“Common
Stock” means, with respect to any Person, any and all shares,
interests and participations (however designated and whether voting
or non-voting) in such Person’s common equity, whether now
Outstanding or issued after the date of this Indenture, and
includes, without limitation, all series and classes of such common
stock.
“Company” means
the Person named as the “Company” in the first
paragraph of this instrument, until a successor Person shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter “Company” shall mean such
successor Person. To the extent necessary to comply with the
requirements of the provisions of Trust Indenture Act Sections 310
through 317 as they are applicable to the Company, the term
“Company” shall include any other obligor with respect
to the Securities for the purposes of complying with such
provisions.
“Company
Request” or “Company Order” means a written
request or order signed in the name of the Company (a) by its
Chairman, Chief Executive Officer, a Vice Chairman, its President
or a Vice President and (b) by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary and delivered to
the Trustee; provided , however , that such written
request or order may be signed by any two of the officers or
directors listed in clause (a) above in lieu of being signed
by one of such officers or directors listed in such clause
(a) and one of the officers listed in clause
(b) above.
“Comparable
Treasury Issue” means the United States Treasury security
selected by a Quotation Agent as having a maturity comparable to
the remaining term of the Securities to be redeemed that would be
utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of such
Securities.
“Comparable
Treasury Price” means, with respect to any redemption date,
(1) the average of the Reference Treasury Dealer Quotations
for such redemption date, after excluding the highest and lowest
such Reference Treasury Dealer Quotations, or (2) if the
trustee obtains fewer than three such Reference Treasury Dealer
Quotations, the average of all such quotations.
“Consolidated Net
Tangible Assets” of any Person means, as of any date,
(a) all amounts that would be shown as assets on a
consolidated balance sheet of such Person and its Restricted
Subsidiaries prepared in accordance with generally accepted
accounting principles, less (b) the amount thereof
constituting goodwill and other intangible assets as calculated in
accordance with generally accepted accounting
principles.
“Corporate
Trust Office” means the office of the Trustee at which at any
particular time its corporate trust business shall be principally
administered, which office on the date hereof is located at
100 Wall Street, 16 th Floor, New York, New York
10005.
“corporation”
includes corporations, associations, partnerships, limited
liability companies, companies and business trusts.
4
“Cumulative
Cash Flow Credit” means the sum of:
(a)
cumulative Operating Cash Flow during the period commencing on
April 1, 2008 and ending on the last day of the most recent
month preceding the date of the proposed Restricted Payment for
which financial information is available or, if cumulative
Operating Cash Flow for such period is negative, minus the amount
by which cumulative Operating Cash Flow is less than zero,
plus
(b)
the aggregate net proceeds received by the Company from the
issuance or sale (other than to a Restricted Subsidiary) of its
Capital Stock (other than Disqualified Stock) on or after
April 1, 2008, plus
(c)
the aggregate net proceeds received by the Company from the
issuance or sale (other than to a Restricted Subsidiary) of its
Capital Stock (other than Disqualified Stock) on or after
April 1, 2008, upon the conversion of, or exchange for,
Indebtedness of the Company or any Restricted Subsidiary or from
the exercise of any options, warrants or other rights to acquire
Capital Stock of the Company.
For purposes of this definition, the
net proceeds in property other than cash received by the Company as
contemplated by clauses (b) and (c) above shall be valued
at the fair market value of such property (as determined by the
Board of Directors, whose good faith determination shall be
conclusive) at the date of receipt by the Company.
“Cumulative
Interest Expense” means, for the period commencing on
April 1, 2008 and ending on the last day of the most recent
month preceding the proposed Restricted Payment for which financial
information is available, the aggregate of the interest expense of
the Company and its Restricted Subsidiaries for such period,
determined on a consolidated basis in accordance with generally
accepted accounting principles, including interest expense
attributable to Capitalized Lease Obligations.
“Debt” with
respect to any Person means, without duplication, any liability,
whether or not contingent, (a) in respect of borrowed
money or evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements
with respect thereto), but excluding reimbursement obligations
under any surety bond, (b) representing the balance deferred
and unpaid of the purchase price of any property (including
pursuant to Capitalized Lease Obligations), except any such balance
that constitutes a trade payable, (c) under Interest Swap
Agreements entered into pursuant to the Bank Credit Agreement,
(d) under any other agreement related to the fixing of
interest rates on any Indebtedness, such as an interest swap, cap
or collar agreement (if and to the extent any of the foregoing
liabilities would appear as a liability upon a balance
sheet of such Person prepared on a consolidated basis in
accordance with generally accepted accounting principles)
or (e) guarantees of items of other Persons which would
be included within this definition for such other Persons, whether
or not the guarantee would appear on such balance sheet.
“Debt” shall not include (a) Disqualified Stock,
(b) any liability for
5
federal, state, local or other taxes
owed or owing by such person or (c) any accounts payable or
other liability to trade creditors arising in the ordinary course
of business (including guarantees thereof or instruments evidencing
such liabilities).
“Default” means
any event that is, or after notice or passage of time or both would
be, an Event of Default.
“Depository”
means, with respect to the Securities issued in the form of one or
more Book-Entry Securities, The Depository Trust Company or another
Person designated as Depository by the Company, which must be a
clearing agency registered under the Exchange Act.
“Disqualified
Stock” means any Capital Stock of the Company or any
Restricted Subsidiary which, by its terms (or by the terms of any
security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof, in
whole or in part, on or prior to the maturity date of the
Securities.
“Event of
Default” has the meaning specified in
Article Five.
“Exchange
Act” means the Securities Exchange Act of 1934, as
amended.
“Exchange
Offer” means the offer by the Company to the Holders of the
Initial Securities or any Additional Securities to exchange all of
the Initial Securities or such Additional Securities, as the case
may be, for Exchange Securities, as provided for in the
Registration Rights Agreement.
“Exchange
Offer Registration Statement” means the Exchange Offer
Registration Statement as defined in the Registration Rights
Agreement.
“Exchange
Securities” has the meaning specified in the first recital of
this Indenture and refers to any Exchange Securities containing
terms substantially identical to the Initial Securities and
Additional Securities (except that (a) such Exchange
Securities shall not contain terms with respect to transfer
restrictions and shall be registered under the Securities Act, and
(b) certain provisions relating to an increase in the stated
rate of interest thereon shall be eliminated) that are issued and
exchanged for the Initial Securities and Additional Securities in
accordance with the Exchange Offer, as provided for in the
Registration Rights Agreement and this Indenture.
“generally
accepted accounting principles” or “GAAP” means
generally accepted accounting principles in the United States, as
in effect on the date of determination, consistently
applied.
“Global
Security” means one or more Securities evidencing all or a
part of the Securities to be issued as Book-Entry Securities,
issued to the Depository in accordance with
6
Section 303 and bearing the
legend prescribed in Section 206 and, in the case of a
Restricted Security, the legend prescribed in
Section 205.
“guarantee”
means, as applied to any obligation, (a) a guarantee (other
than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of
any part or all of such obligation or (b) an agreement, direct
or indirect, contingent or otherwise, providing assurance of the
payment or performance (or payment of damages in the event of
non-performance) of any part or all of such obligation, including,
without limiting the foregoing, the payment of amounts drawn down
by letters of credit. Notwithstanding anything herein to the
contrary, a guarantee shall not include any agreement solely
because such agreement creates a Lien on the assets of any
Person. The amount of a guarantee shall be deemed to be the
maximum amount of the obligation guaranteed for which the guarantor
could be held liable under such guarantee.
“Holder” means a
Person in whose name a Security is registered in the Security
Register.
“Indebtedness”
with respect to any Person means the Debt of such Person;
provided that, for purposes of the definition of
“Indebtedness” (including the term “Debt”
to the extent incorporated in such definition) and for purposes of
the definition of Event of Default, the term
“guarantee” shall not be interpreted to extend to a
guarantee under which recourse is limited to the Capital Stock of
an entity that is not a Restricted Subsidiary.
“Indenture” means
this instrument as originally executed (including all exhibits and
schedules hereto) and as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof.
“Initial
Interest Payment Date” has the meaning specified in
Section 3.01.
“Initial
Purchasers” means Banc of America Securities LLC, Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Citigroup
Global Markets Inc., J.P. Morgan Securities Inc., GE Capital
Markets, Inc., Credit Suisse Securities (USA) LLC, BNP Paribas
Securities Corp., Deutsche Bank Securities Inc., Fortis Securities
LLC, Goldman, Sachs & Co., Morgan Stanley & Co.
Incorporated, Piper Jaffray & Co., Greenwich Capital
markets, Inc., Scotia Capital (USA) Inc., SunTrust Robinson
Humphrey, Inc. and Wedbush Morgan Securities Inc.
“Initial
Securities” has the meaning specified in the recitals to this
Indenture.
“Interest
Payment Date” means the Stated Maturity of an installment of
interest on the Securities.
“Interest Swap
Agreement” means an interest rate swap, cap or collar
agreement or similar arrangement among the Company and/or any
Restricted Subsidiary and one or more banks or financial
institutions providing for protection against fluctuations in
interest rates or the
7
exchange of nominal interest
obligations among the Company and/or such Restricted Subsidiary and
such banks or financial institutions, either generally or under
specific contingencies, as said agreement or arrangement shall be
modified and supplemented and in effect from time to
time.
“Interest
Swap Obligations” means, with respect to any Person, the
obligations of such Person pursuant to any arrangement with any
other Person whereby, directly or indirectly, such Person is
entitled to receive from time to time periodic payments calculated
by applying either a floating or a fixed rate of interest on a
stated notional amount in exchange for periodic payments made by
such Person calculated by applying a fixed or a floating rate of
interest on the same notional amount.
“Investment”
means any advance, loan, account receivable (other than an account
receivable arising in the ordinary course of business), or other
extension of credit (excluding, however, accrued and unpaid
interest in respect of any advance, loan or other extension of
credit) or any capital contribution to (by means of transfers of
property to others, payments for property or services for the
account or use of others, or otherwise), any purchase or ownership
of any stocks, bonds, notes, debentures or other securities
(including, without limitation, any interests in any partnership,
joint venture or joint adventure) of, or any bank accounts
with or guarantee of any Indebtedness or other obligations of, any
Unrestricted Subsidiary or Affiliate that is not a Subsidiary;
provided that (a) the term “Investment”
shall not include any transaction that would otherwise constitute
an Investment of the Company or a Subsidiary to the extent that the
consideration provided by the Company or such Subsidiary in
connection therewith shall consist of Capital Stock of the Company
(other than Disqualified Stock) and (b) the term
“guarantee” shall not be interpreted to extend to a
guarantee under which recourse is limited to the Capital Stock of
an entity that is not a Restricted Subsidiary.
“Lease” means any
capital lease, operating lease, equipment lease, real property
lease or other lease.
“Lien” means any
lien, security interest, charge or encumbrance of any kind
(including any conditional sale or other title retention agreement,
any lease in the nature of a security interest and any agreement to
give any security interest). A Person shall be deemed to own
subject to a Lien any property which such Person has acquired or
holds subject to the interest of a vendor or lessor under a
conditional sale agreement, capital lease or other title retention
agreement.
“Liquidated
Damages” means all liquidated damages then owing pursuant to
Section 4 of the Registration Rights Agreement, or, in the
case of Additional Securities, the applicable section of the
registration rights agreement entered into with respect to those
Additional Securities.
“Maturity” when
used with respect to any Security means the date on which the
principal of such Security becomes due and payable as therein or
herein provided whether at the Stated Maturity, by declaration of
acceleration or otherwise.
8
“Officers’
Certificate” means a certificate signed by (a) the
Chairman, Chief Executive Officer, a Vice Chairman, the President,
a Vice President or the Treasurer of the Company and
(b) the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee; provided ,
however , that such certificate may be signed by two of the
officers or directors listed in clause (a) above in lieu of
being signed by one of such officers or directors listed in such
clause (a) and one of the officers listed in clause
(b) above.
“Operating
Cash Flow” means, for any period, the sum of the
following for the Company and the Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with
generally accepted accounting principles (except for the
amortization of deferred installation income which shall be
excluded from the calculation of Operating Cash Flow for all
purposes of this Indenture): (a) aggregate
operating revenues minus (b) aggregate operating
expenses (including technical, programming, sales, selling, general
and administrative expenses and salaries and other compensation,
net of amounts allocated to Affiliates, paid to any general
partner, director, officer or employee of the Company or any
Restricted Subsidiary, but excluding interest, depreciation and
amortization and the amount of non-cash compensation in respect of
the Company’s employee incentive stock programs for such
period (not to exceed in the aggregate for any calendar year 7% of
the Operating Cash Flow for the previous calendar year) and, to the
extent otherwise included in operating expenses, any losses
resulting from a write-off or write-down of Investments by the
Company or any Restricted Subsidiary in Affiliates). For
purposes of determining Operating Cash Flow, there shall be
excluded all management fees until actually paid to the Company or
any Restricted Subsidiary in cash.
“Opinion of
Counsel” means a written opinion of counsel, who may be
counsel for the Company. Each such opinion shall include the
statements provided for in Trust Indenture Act section 314 to the
extent applicable.
“Outstanding”
when used with respect to Securities means, as of the date of
determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a)
Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b)
Securities, or portions thereof, for whose payment or purchase
money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the
Holders of such Securities;
(c)
Securities, except to the extent provided in Sections 1202 and
1203, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article Twelve;
and
(d)
Securities paid pursuant to Section 306, Securities in
exchange for which, or in lieu of which, other Securities have been
authenticated and delivered pursuant to this
9
Indenture, other
than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands the
Securities are valid obligations of the Company;
provided , however , that, in determining whether
the Holders of the requisite principal amount of Outstanding
Securities have given any request, demand, direction, consent or
waiver hereunder, Securities owned by the Company or any other
obligor upon the Securities, or any Affiliate of the Company, or
such other obligor, shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall
be protected in relying upon any such request, demand, direction,
consent or waiver, only Securities which a Responsible Officer of
the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s
right so to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the Securities
or any Affiliate of the Company or such other obligor.
“Paying
Agent” means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the
Company.
“Permitted
Liens” means the following types of Liens:
(a)
Liens existing on the date of this Indenture;
(b)
Liens on shares of the Capital Stock of an entity that is not a
Restricted Subsidiary, which Liens solely secure a guarantee by the
Company or a Restricted Subsidiary, or both, of Indebtedness of
such entity;
(c)
Liens on Receivables and Related Assets (and proceeds thereof)
securing only Indebtedness otherwise permitted to be incurred by a
Securitization Subsidiary;
(d)
Liens on shares of the Capital Stock of a Subsidiary securing
Indebtedness under the Bank Credit Agreement or any renewal or
replacement of the Bank Credit Agreement;
(e)
Liens granted in favor of the Company or any Restricted
Subsidiary;
(f)
Liens securing the Securities;
(g)
Liens securing Acquired Indebtedness created prior to (and not in
connection with or in contemplation of) the incurrence of such
Indebtedness by the Company or a Restricted Subsidiary;
provided that such Lien does not extend to any property or
assets of the Company or any Restricted Subsidiary other than the
assets acquired in connection with the incurrence of such Acquired
Indebtedness;
10
(h)
Liens securing Interest Swap Obligations or “margin
stock”, as defined in Regulations G and U of the Board
of Governors of the Federal Reserve System;
(i)
statutory Liens of landlords and carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen or other like Liens arising in
the ordinary course of business of the Company or any Restricted
Subsidiary and with respect to amounts not yet delinquent or being
contested in good faith by appropriate proceedings;
(j)
Liens for taxes, assessments, government charges or claims not yet
due or that are being contested in good faith by appropriate
proceedings;
(k)
zoning restrictions, easements, rights-of-way, restrictions and
other similar charges or encumbrances or minor defects in title not
interfering in any material respect with the business of the
Company or any of its Restricted Subsidiaries;
(l)
Liens arising by reason of any judgment, decree or order of any
court, arbitral tribunal or similar entity so long as any
appropriate legal proceedings that may have been initiated for the
review of such judgment, decree or order shall not have been
finally terminated or the period within which such proceedings may
be initiated shall not have expired;
(m)
Liens incurred or deposits made in the ordinary course of business
in connection with workers’ compensation, unemployment
insurance and other types of social security or similar
legislation;
(n)
Liens securing the performance of bids, tenders, Leases, contracts,
franchises, public or statutory obligations, surety, stay or appeal
bonds, or other similar obligations arising in the ordinary course
of business;
(o)
Leases under which the Company or any Restricted Subsidiary is the
lessee or the lessor;
(p)
purchase money mortgages or other purchase money liens (including
without limitation any Capitalized Lease Obligations) upon any
fixed or capital assets acquired after the date of this Indenture,
or purchase money mortgages (including without limitation
Capitalized Lease Obligations) on any such assets hereafter
acquired or existing at the time of acquisition of such assets,
whether or not assumed, so long as (i) such mortgage or lien
does not extend to or cover any other asset of the Company or any
Restricted Subsidiary and (ii) such mortgage or lien secures
the obligation to pay the purchase price of such asset, interest
thereon and other charges incurred in connection therewith (or the
obligation under such Capitalized Lease Obligation)
only;
11
(q)
Liens securing reimbursement obligations with respect to commercial
letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds
thereof;
(r)
Liens encumbering deposits made to secure obligations arising from
statutory, regulatory, contractual, or warranty requirements of the
Company or any of its Restricted Subsidiaries, including rights of
offset and set-off;
(s)
Liens to secure other Indebtedness; provided ,
however , that the principal amount of any Indebtedness
secured by such Liens, together with the principal amount of any
Indebtedness refinancing any Indebtedness incurred under this
clause (s) as permitted by clause (t) below (and
successive refinancings thereof), may not exceed 15% of the
Company’s Consolidated Net Tangible Assets as of the last day
of the Company’s most recently completed fiscal year for
which financial information is available; and
(t)
any extension, renewal or replacement, in whole or in part, of any
Lien described in the foregoing clauses (a) through (s);
provided that any such extension, renewal or replacement
shall be no more restrictive in any material respect than the Lien
so extended, renewed or replaced and shall not extend to any
additional property or assets.
“Person” means
any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
“Physical
Security” has the meaning specified in
Section 303.
“Predecessor
Security” of any particular Security means every previous
Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of
this definition, any Security authenticated and delivered under
Section 306 in exchange for a mutilated security or in lieu of
a lost, destroyed or stolen Security shall be deemed to evidence
the same debt as the mutilated, lost, destroyed or stolen
Security.
“Preferred
Stock” means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated)
of such Person’s preferred or preference stock, whether now
Outstanding or issued after the date of this Indenture, and
includes, without limitation, all classes and series of preferred
or preference stock.
“Qualified
Institutional Buyer” or “QIB” shall have the
meaning specified in Rule 144A under the Securities
Act.
“Quotation
Agent” means the Reference Treasury Dealer appointed by the
trustee after consultation with the Company.
12
“Receivables and
Related Assets” means (a) accounts receivable,
instruments, chattel paper, obligations, general intangibles,
equipment and other similar assets, including interests in
merchandise or goods, the sale or Lease of which gives rise to the
foregoing, related contractual rights, guarantees, insurance
proceeds, collections and other related assets, (b) equipment,
(c) inventory and (d) proceeds of all of the
foregoing.
“Redemption
Date”, when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this
Indenture.
“Redemption
Price” has the meaning specified in
Section 1107.
“Reference
Treasury Dealer” means (1) Banc of America Securities
LLC and its successors; provided , however , that if
the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a “Primary Treasury
Dealer”), the Company shall substitute therefor another
Primary Treasury Dealer; and (2) any other Primary Treasury
Dealers selected by the Trustee after consultation with the
Company.
“Reference
Treasury Dealer Quotations” means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and ask prices for the
Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. on the third business
day preceding such Redemption Date.
“Refinancing
Indebtedness” means Indebtedness of the Company incurred to
redeem, repurchase, defease or otherwise acquire or retire for
value other Indebtedness that is subordinate in right of payment to
the Securities, so long as any such new Indebtedness (a) is
made subordinate to the Securities at least to the same extent as
the Indebtedness being refinanced and (b) does not
(i) have an Average Life less than the Average Life of the
Indebtedness being refinanced, (ii) have a final scheduled
maturity earlier than the final scheduled maturity of the
Indebtedness being refinanced, or (iii) permit redemption at
the option of the holder earlier than the earlier of (A) the
final scheduled maturity of the Indebtedness being refinanced or
(B) any date of redemption at the option of the holder of the
Indebtedness being refinanced.
“Registered
Securities” means Securities issued or sold in a transaction
pursuant to an effective registration statement under the
Securities Act, as contemplated in the Registration Rights
Agreement, and any Exchange Security subsequently issued in
exchange for or upon transfer of any such Security.
“Registration Rights
Agreement” means, with respect to the Initial Securities, the
Registration Rights Agreement, dated June 4, 2008, among the
Company and the Initial Purchasers, a form of which Registration
Rights Agreement is attached hereto as Exhibit B, and, with
respect to any Additional Securities, one or more registration
rights agreements between the Company and the other parties
thereto, as such agreement(s) may be amended, modified
or
13
supplemented from time to time,
relating to rights given by the Company to the purchasers of
Additional Securities to register such Additional Securities under
the Securities Act.
“Regular
Record Date” for the interest payable on any Interest Payment
Date means the June 1 or December 1 (whether or not a
Business Day), as the case may be, next preceding such Interest
Payment Date.
“Regulation
S Global Security” has the meaning specified in
Section 303.
“Responsible
Officer”, when used with respect to the Trustee, means any
vice president, any assistant vice president, any trust
officer or assistant trust officer or any other officer of the
Trustee customarily performing functions similar to those performed
by any of the above designated officers or assigned by the Trustee
to administer corporate trust matters at its Corporate Trust Office
and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because
of his knowledge of and familiarity with the particular
subject.
“Restricted
Payment” means:
(a)
any Stock Payment by the Company or a Restricted
Subsidiary;
(b)
any direct or indirect payment by the Company or a Restricted
Subsidiary to redeem, purchase, defease or otherwise acquire or
retire for value, prior to any scheduled maturity, scheduled
repayment or scheduled sinking fund payment, any Indebtedness of
the Company that is subordinate in right of payment to the
Securities; provided , however , that any direct or
indirect payment by the Company or a Restricted Subsidiary to
redeem, purchase, defease or otherwise acquire or retire for value,
prior to any scheduled maturity, scheduled repayment or scheduled
sinking fund payment, any Indebtedness of the Company that is
subordinate in right of payment to the Securities shall not be a
Restricted Payment if either (i) after giving effect thereto,
the ratio of the Senior Indebtedness of the Company and the
Restricted Subsidiaries to Annualized Operating Cash Flow
determined as of the last day of the most recent month for which
financial information is available is less than or equal to 5 to 1
or (ii) such subordinate Indebtedness is redeemed, purchased,
defeased or otherwise acquired or retired in exchange for, or out
of (x) the proceeds of a sale (within one year before or 180
days after such redemption, purchase, defeasance, acquisition or
retirement) of Refinancing Indebtedness or Capital Stock of the
Company or warrants, rights or options to acquire Capital Stock of
the Company or (y) any source of funds other than the
incurrence of Indebtedness; or
(c)
any direct or indirect payment by the Company or a Restricted
Subsidiary to redeem, purchase, defease or otherwise acquire or
retire for value any Disqualified Stock at its mandatory redemption
date or other maturity date if and to the extent that Indebtedness
is incurred to finance such redemption, purchase, defeasance or
other acquisition or retirement.
14
Notwithstanding the foregoing,
Restricted Payments shall not include (a) payments by any
Restricted Subsidiary to the Company or any other Restricted
Subsidiary or (b) any Investment or designation of a
Restricted Subsidiary as an Unrestricted Subsidiary permitted under
Section 1010.
“Restricted
Security” has the meaning specified in
Section 205.
“Restricted
Subsidiary” means any Subsidiary, whether existing on the
date hereof or created subsequent thereto, designated from time to
time by the Company as a “Restricted Subsidiary”
(the initial Restricted Subsidiaries designated by the Company
being set forth on Exhibit A); provided ,
however , that no Subsidiary that is not a Securitization
Subsidiary can be or remain so designated unless (a) at
least 67% of each of the total equity interest and the voting
control of such Subsidiary is owned, directly or indirectly, by the
Company or another Restricted Subsidiary and (b) such
Subsidiary is not restricted, pursuant to the terms of any loan
agreement, note, indenture or other evidence of indebtedness, from
(i) paying dividends or making any distribution on such
Subsidiary’s Capital Stock or other equity securities or
paying any Indebtedness owed to the Company or to any Restricted
Subsidiary, (ii) making any loans or advances to the
Company or any Restricted Subsidiary or (iii) transferring any
of its properties or assets to the Company or any Restricted
Subsidiary (it being understood that a financial covenant any of
the components of which are directly impacted by the taking of
the action ( e.g. , the payment of a dividend) itself (such
as a minimum net worth test) would be deemed to be a restriction on
the foregoing actions, while a financial covenant none of the
components of which is directly impacted by the taking of the
action ( e.g. , the payment of a dividend) itself
(such as a debt to cash flow test) would not be deemed to be a
restriction on the foregoing actions); and provided
further that the Company may, from time to time, redesignate
any Restricted Subsidiary as an Unrestricted Subsidiary in
accordance with Section 1010.
“Rule 144A Global
Security” has the meaning specified in
Section 303.
“Securities
Act” means the Securities Act of 1933, as
amended.
“Securities
Issue Date” means June 4, 2008 with respect to the
Initial Securities, the date of original issuance of the Exchange
Securities with respect to the Exchange Securities, and the date of
original issuance of the Additional Securities with respect to any
Additional Securities.
“Securitization
Subsidiary” means a Restricted Subsidiary that is established
for the limited purpose of acquiring and financing Receivables and
Related Assets and engaging in activities ancillary thereto;
provided that (a) no portion of the Indebtedness of a
Securitization Subsidiary is guaranteed by or is recourse to the
Company or any other Restricted Subsidiary (other than recourse for
customary representations, warranties, covenants and indemnities,
none of which shall relate to the collectibility of the Receivables
and Related Assets) and (b) none of the Company or any other
Restricted Subsidiary has any obligation to maintain or preserve
such Securitization Subsidiary’s financial
condition.
15
“Security” and
“Securities” have the meaning specified in the second
paragraph of this Indenture, such terms to include the Initial
Securities, the Exchange Securities and any Additional
Securities. The Initial Securities, the Exchange Securities
and any Additional Securities shall be treated as a single class
for all purposes under this Indenture.
“Security
Register” and “Security Registrar” have the
respective meanings specified in Section 305.
“Senior
Indebtedness” means, with respect to any Person, all
principal of, premium, if any, and interest (including interest
accruing on or after the filing of any petition in bankruptcy or
for reorganization relating to such Person whether or not a claim
for post filing interest is allowed in such proceedings) with
respect to all Indebtedness of such Person; provided that
Senior Indebtedness shall not include (a) any Indebtedness of
such Person that, by its terms or the terms of the instrument
creating or evidencing such Indebtedness, is expressly subordinate
in right of payment to the Securities, (b) any guarantee of
Indebtedness of any subsidiary of such Person if recourse against
such guarantee is limited to the Capital Stock or other equity
interests of such subsidiary, (c) any obligation of such
Person to any subsidiary of such Person or, in the case of a
Restricted Subsidiary, to the Company or any other Subsidiary or
(d) any Indebtedness of such Person (and any accrued and
unpaid interest in respect thereof) which is subordinate or junior
in any respect to any other Indebtedness or other obligation of
such Person.
“Shelf
Registration Statement” means the Shelf Registration
Statement as defined in the Registration Rights
Agreement.
“Special
Record Date” means a date fixed by the Trustee for the
payment of any Defaulted Interest pursuant to
Section 307.
“Stated
Maturity”, when used with respect to any Security or any
installment of interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security
or such installment of interest is due and payable.
“Stock
Payment” means, with respect to any Person, the payment or
declaration of any dividend, either in cash or in property (except
dividends payable in Common Stock or common shares of Capital Stock
of such Person), or the making by such Person of any other
distribution, on account of any shares of any class of its Capital
Stock, now or hereafter outstanding, or the redemption, purchase,
retirement or other acquisition or retirement for value by such
Person, directly or indirectly, of any shares of any class of its
Capital Stock, now or hereafter outstanding, other than the
redemption, purchase, defeasance or other acquisition or retirement
for value of any Disqualified Stock at its mandatory redemption
date or other maturity date.
“subsidiary”
means, as to a particular parent entity at any time, any entity of
which more than 50% of the outstanding Voting Stock or other equity
interest entitled ordinarily to vote in the election of the
directors or other governing body (however designated) of such
entity is at
16
the time beneficially owned or
controlled directly or indirectly by such parent corporation, by
one or more such entities or by such parent corporation and one or
more such entities.
“Subsidiary”
means any subsidiary of the Company.
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as
amended, and as in force at the date as of which this
instrument was executed, except as provided in Section 905;
provided , however , that, in the event that the
Trust Indenture Act of 1939 is amended after such date,
“Trust Indenture Act” means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so
amended.
“Trustee” means
the Person named as the “Trustee” in the first
paragraph of this Indenture, until a successor Trustee shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean such
successor Trustee.
“Unrestricted
Subsidiary” means any Subsidiary that is not a Restricted
Subsidiary.
“Voting
Stock” means any Capital Stock having voting power under
ordinary circumstances to vote in the election of the directors of
a corporation (irrespective of whether or not at the time stock of
any other class or classes shall have or might have voting power by
reason of the happening of any contingency).
Section 102. Other
Definitions.
|
Term
|
|
Defined
in Section
|
|
|
|
|
|
“Act”
|
|
105
|
|
“Bankruptcy
Law”
|
|
501
|
|
“covenant
defeasance”
|
|
1203
|
|
“Custodian”
|
|
501
|
|
“defeasance”
|
|
1202
|
|
“Defaulted
Interest”
|
|
307
|
|
“incorporated
provision”
|
|
108
|
|
“redesignation of a Restricted
Subsidiary”
|
|
1010
|
|
“Restricted
Security”
|
|
205
|
|
“Security
Register”
|
|
305
|
|
“Security
Registrar”
|
|
305
|
|
“successor”
|
|
801
|
|
“U.S. Government
Obligations”
|
|
1204
|
17
Section 103. Compliance
Certificates and Opinions.
Upon any application or request by
the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an
Officers’ Certificate stating that all conditions precedent,
if any, provided for in this Indenture (including any covenant
compliance with which constitutes a condition precedent) relating
to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with,
except that, in the case of any such application or request as to
which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need
be furnished.
Every certificate or opinion (other
than the certificates required by Section 1013) with respect
to compliance with a condition or covenant provided for in this
Indenture shall include:
(a)
a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(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 each such individual, he has
made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d)
a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 104. Form of
Documents Delivered to Trustee.
In any case where several matters
are required to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person,
or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an
officer of the Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by,
counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the
18
Company stating that the information
with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are
erroneous.
Where any Person is required to
make, give or execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument.
Section 105. Acts of
Holders.
(a)
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the
“Act” of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Trust Indenture Act
Section 315) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this
Section 105.
(b)
The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner
that the Trustee deems sufficient.
(c)
The ownership of Securities shall be proved by the Security
Register.
(d)
If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution,
fix in advance a record date for the determination of such Holders
entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. Notwithstanding Trust Indenture Act
Section 316(c), any such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a
date not more than 30 days prior to the first solicitation of
Holders generally in connection therewith and no later than
the date such solicitation is completed.
If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such
record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of
Securities then Outstanding have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for this purpose the Securities then
Outstanding shall be
19
computed as of such record
date; provided that no such request, demand, authorization,
direction, notice, consent, waiver or other Act by the Holders on
such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later
than six months after the record date.
(e)
Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every
future Holder of the same Security or the Holder of every Security
issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done, suffered
or omitted to be done by the Trustee, any Paying Agent or the
Company in reliance thereon, whether or not notation of such action
is made upon such Security.
Section 106. Notices,
Etc. to Trustee and Company.
Any request, demand, authorization,
direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with,
(a)
the Trustee by any Holder, the agents of the Banks or the Company
shall be sufficient for every purpose hereunder if made, given,
furnished or delivered, in writing (which may be via facsimile), to
or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Services; or
(b)
the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or delivered in writing to the
Company addressed to it c/o CSC Holdings, Inc., 1111 Stewart
Avenue, Bethpage, New York 11714, Attention: Secretary, or at
any other address previously furnished in writing to the Trustee by
the Company.
Section 107. Notice to
Holders; Waiver.
Where this Indenture provides for
notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any
notice when mailed to a Holder in the aforesaid manner shall be
conclusively deemed to have been received by such Holder whether or
not actually received by such Holder.
Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the
event, and such
20
waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension
of regular mail service or by reason of any other cause, it
shall be impracticable to mail notice of any event as required by
any provision of this Indenture, then any method of giving such
notice as shall be satisfactory to the Trustee shall be deemed to
be a sufficient giving of such notice.
Section 108. Conflict of
Any Provision of Indenture with Trust Indenture Act.
If and to the extent that any
provision of this Indenture limits, qualifies or conflicts
with the duties imposed by Trust Indenture Act Sections 310 to
318, inclusive, or conflicts with any provision
(an “incorporated provision”) required by or
deemed to be included in this Indenture by operation of such
Trust Indenture Act Sections, such imposed duties or incorporated
provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act that
may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or excluded, as
the case may be.
Section 109. Effect of
Headings and Table of Contents.
The Article and
Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction
hereof.
Section 110. Successors
and Assigns.
All covenants and agreements in this
Indenture by the Company shall bind its respective successors and
assigns, whether so expressed or not.
Section 111. Separability
Clause.
In case any provision in this
Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
Section 112. Benefits of
Indenture.
Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person (other
than the parties hereto and their successors hereunder, any Paying
Agent and the Holders) any benefit or any legal or equitable right,
remedy or claim under this Indenture.
21
Section 113. Governing
Law; Waiver of Jury Trial
This Indenture and the Securities
shall be governed by and construed in accordance with the laws of
the State of New York, without regard to conflicts of laws
principles.
This Indenture is subject to the
provisions of the Trust Indenture Act that are required to be part
of this Indenture and shall, to the extent applicable, be governed
by such provisions.
EACH OF THE COMPANY AND THE TRUSTEE
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE
SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY
Section 114. Legal
Holidays.
In any case where any Interest
Payment Date, any date established for payment of Defaulted
Interest pursuant to Section 307, or any Maturity with respect
to any Security shall not be a Business Day, then (notwithstanding
any other provision of this Indenture or of the Securities) payment
of interest or principal need not be made on such date, but may be
made on the next succeeding Business Day with the same force and
effect as if made on the Interest Payment Date, or date established
for payment of Defaulted Interest pursuant to Section 307, or
Maturity, and no interest shall accrue with respect to such payment
for the period from and after such Interest Payment Date, or date
established for payment of Defaulted Interest pursuant to
Section 307, or Maturity, as the case may be, to the next
succeeding Business Day.
Section 115. No Recourse
Against Others.
A director, officer, employee or
stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this
Indenture or for any claim based on, in respect of or by reason of
such obligations or their creation. Each Holder by accepting
any of the Securities waives and releases all such
liability.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms
Generally; Incorporation of Form in Indenture.
The Securities and the
Trustee’s certificate of authentication with respect thereto
shall be in substantially the forms set forth in this Article,
with such appropriate legends, insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture
and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required
to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing
such
22
Securities, as evidenced by their
execution of the Securities. Any portion of the text of any
Security may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Security.
Each Security shall be dated the date of its
authentication.
The definitive Securities shall be
typewritten, printed, lithographed, engraved or otherwise produced
or produced by any combination of these methods or may be
produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced
by their execution of such Securities.
Section 202. Form of
Face of Security.
CSC HOLDINGS, INC.
|
|
8½% [Series B]* Senior
Notes due 2015
|
|
|
|
|
|
|
No.
|
|
$
|
|
|
|
CUSIP
No.
|
|
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|
ISIN
No.
|
CSC Holdings, Inc., a Delaware
corporation (herein called the “Company”, which term
includes any successor entity under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
or registered assigns the principal sum of
Dollars on June 15, 2015, at the office or agency of the
Company referred to below, and to pay interest thereon on
[ ]**, and semiannually thereafter, on June 15 and
December 15 in each year from the Securities Issue Date or
from the most recent Interest Payment Date to which interest has
been paid or duly provided for at the rate of 8½% per annum
until the principal hereof is paid or duly provided for, and (to
the extent lawful) to pay on demand interest on any overdue
interest at the rate borne by the Securities from the date of the
Interest Payment Date on which such overdue interest becomes
payable to the date payment of such interest has been made or duly
provided for.
[The Holder of this Security is
entitled to the benefits of the Registration Rights Agreement,
dated June 4, 2008 (the “Registration Rights
Agreement”), between the Company and the Initial Purchasers
named therein. Subject to the terms of the Registration
Rights Agreement, in the event this Security is not freely
transferable and an exchange offer (the “Exchange
Offer”) for this Initial Security is not consummated or a
registration statement under the Securities Act with respect to
resales of this Security (the “Shelf Registration
Statement”) is not declared effective by the Commission on or
prior to July 9, 2009, in either case, in accordance with the
Registration Rights Agreement, the aforesaid interest rate borne by
this Security shall be increased by one-quarter of one percent per
annum for the first 90 days following July 9, 2009. Such
interest
*
Include only for Exchange
Securities.
**
In the case of an Initial Security,
insert December 15, 2008. In the case of any Security
other than an Initial Security, insert the relevant Initial
Interest Payment Date.
23
rate shall increase by an additional
one-quarter of one percent per annum thereafter, up to a maximum
aggregate increase of one half of one percent per annum.
Subject to the terms of the Registration Rights Agreement, upon
this Security becoming freely transferable, consummation of the
Exchange Offer or the effectiveness of a Shelf Registration
Statement, as the case may be, the interest rate borne by this
Security shall be reduced to 8½% per annum.]***
If any interest has accrued on this
Security in respect of any period prior to the issuance of this
Security, such interest shall be payable in respect of such period
at the rate or rates borne by the Predecessor Security surrendered
in exchange for this Security from time to time during such
period. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date shall, as provided in
such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest,
which shall be the June 1 or December 1 (whether or not a
Business Day), as the case may be, next preceding such Interest
Payment Date. Any such interest not so punctually paid or
duly provided for, and interest on such defaulted interest at the
interest rate borne by this Security, to the extent lawful, shall
forthwith cease to be payable to the Holder on such Regular Record
Date, and may be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given
to Holders of Securities not less than 10 days prior to such
Special Record Date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in the Indenture. Payment of the principal of and
interest on this Security shall be made at the office or agency of
the Company maintained for that purpose in The City of New York, or
at such other office or agency of the Company as may be maintained
for such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
public and private debts; provided , however , that
payment of interest may be made at the option of the Company by
check mailed to the address of the Person entitled thereto as such
address shall appear on the Security Register.
Interest on the Securities shall be
computed on the basis of a 360-day year of twelve 30-day
months.
Reference is hereby made to the
further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of
authentication hereon has been duly executed by the Trustee
referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture,
or be valid or obligatory for any purpose.
***
Include only for Initial
Securities. In the case of any Additional Securities, briefly
describe terms of the applicable registration rights
agreement.
24
IN WITNESS
WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
|
|
|
CSC HOLDINGS, INC.
|
|
|
|
|
|
|
|
|
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|
By
|
|
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|
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|
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Attest:
|
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By
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25
Section 203.
Form of Reverse of Security.
This Security is one of a duly
authorized issue of securities of the Company designated as its
8½% [Series B]* Senior Notes due 2015 (herein called the
“Securities”), which may be issued under an indenture
(herein called the “Indenture”) dated as of
June 4, 2008, between the Company and U.S. Bank National
Association, trustee (herein called the “Trustee”,
which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights,
limitations of rights, duties, obligations and immunities
thereunder of the Company, the Trustee, the holders of the Senior
Indebtedness and the Holders of the Securities, and of the terms
upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on
the face hereof, initially limited in aggregate principal amount to
$500,000,000; provided , however , that the Company
may from time to time, without notice to or the consent of the
Holders of Securities, create and issue further Securities of this
series (the “Additional Securities”) having the same
terms and ranking equally and ratably with the Securities of this
series in all respects and with the same CUSIP number as the
Securities of this series, or in all respects except for payment of
interest accruing prior to the issue date of such Additional
Securities or except for the first payment of interest following
the issue date of such Additional Securities. Any Additional
Securities shall be consolidated and form a single series with the
Securities and shall have the same terms as to status, redemption
and otherwise as the Securities. Any Additional Securities
may be issued pursuant to authorization provided by a resolution of
the Board of Directors of the Company, a supplement to the
Indenture, or under an Officers’ Certificate pursuant to the
Indenture. No Additional Securities may be issued if an Event
of Default has occurred and is continuing with respect to the
Securities of this series.
[This Security is exchangeable under
certain circumstances as provided in the Indenture for the
Company’s 8½% Series B Senior Notes due 2015
(herein called the “Exchange Securities”), issued under
the Indenture. Unless the context otherwise requires, the
Securities and Exchange Securities shall constitute one series for
all purposes under the Indenture, including without limitation
amendments and waivers.]**
At its option, the Company may
redeem this Security, in whole or in part, at any time and from
time to time at a redemption price equal to the greater of
(a) 100% of the principal amount of this Security to be
redeemed, or (b) as determined by a Quotation Agent, the sum
of the present values of the remaining scheduled payments of
principal and interest thereon (not including any Liquidated
Damages or any portion of such payments of interest accrued to the
Redemption Date) discounted to the Redemption Date on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day months)
at the Adjusted Treasury Rate plus 50 basis points, plus, in each
case, accrued and unpaid interest to the Redemption Date. Any
redemption of this Security shall be made pursuant to the
provisions of Sections 1101 through 1106 of the
Indenture.
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*
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Include only for Exchange
Securities.
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**
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Include only for Initial Securities
and any Additional Securities.
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On or after June 15, 2012,
the Company may redeem all or part of the Securities, 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 thereon, to the applicable
Redemption Date, if redeemed during the twelve-month period
beginning on June 15 of the years indicated below:
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Year
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Percentage
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2012
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104.250
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%
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2013
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102.125
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%
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2014 and thereafter
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100.000
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%
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If an Event of Default shall occur
and be continuing, the principal of all the Securities may be
declared due and payable in the manner and with the effect provided
in the Indenture.
The Indenture contains provisions
for defeasance at any time of (a) the entire indebtedness of
the Company on this Security and (b) certain restrictive
covenants and the related Defaults and Events of Default, in each
case, upon compliance by the Company with certain conditions set
forth therein, which provisions apply to this Security.
This Security does not have the
benefit of any sinking fund obligations.
The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the
rights of the Holders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the
time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate
principal amount of the Securities at the time Outstanding, on
behalf of the Holders of all the Securities, to waive compliance by
the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any
such consent or waiver by or on behalf of the Holder of this
Security shall be conclusive and binding upon such Holder and upon
all future Holders of this Security and of any Security issued upon
the registration of transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture
and no provision of this Security or of the Indenture shall alter
or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this
Security at the times, place, and rate, and in the coin or
currency, herein prescribed.
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As provided in the Indenture and
subject to certain limitations therein set forth, the transfer of
this Security is registrable on the Security Register of the
Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such
purpose in The City of New York, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon
one or more new Securities, of authorized denominations and for the
same aggregate principal amount, shall be issued to the designated
transferee or transferees.
The Securities are issuable only in
registered form without coupons in denominations of $1,000 and any
integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, the Securities
are exchangeable for a like aggregate principal amount
of Securities of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for
any registration of transfer or exchange of Securities, but the
Company may require payment of a sum sufficient to pay all
documentary, stamp or similar issue or transfer taxes or other
governmental charges payable in connection with any registration of
transfer or exchange.
Prior to the time of due presentment
of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue,
and neither the Company, the Trustee nor any agent shall be
affected by notice to the contrary.
This Security shall be governed by
and construed in accordance with the laws of the State of New York,
without regard to conflicts of laws principles thereof.
All terms used in this Security that
are defined in the Indenture shall have the meanings assigned to
them in the Indenture.
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Certificate of
Transfer ***
FOR VALUE RECEIVED, the undersigned
hereby sells, assigns and transfers this Security to
(Please typewrite or print name and
taxpayer identification number)
(Please typewrite or print
address)
and hereby irrevocably constitutes
and appoints
his attorney to transfer the same on the books of the Company, with
full power of substitution in the premises.
In connection with any transfer of
all or any portion of the Security evidenced by this certificate
for as long as such Security is a Restricted Security, the
undersigned confirms that such Security is being
transferred:
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(a) Pursuant to and in
compliance with Rule 144A under the Securities Act of 1933, as
amended (the “Securities Act”);
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or
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(b) Pursuant to offers and
sales to non-U.S. Persons that occur outside the United States
within the meaning of Regulation S under the Securities
Act;
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Unless one of the boxes above is
checked, the Trustee shall refuse to register all or any portion of
the Security evidenced by this certificate in the name of any
person other than the registered holder thereof (or hereof);
provided , however , that the Trustee may, in its
sole discretion, register the transfer of such Security if it has
received such certifications, legal opinions and/or other
information as it has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of
the Securities Act.
NOTE: The signature to this
assignment must correspond with the name as written upon the
face
*** Include only for
Initial Securities and any Additional Securities.
29
of this Security in every
particular, without alteration or enlargement, or any change
whatever.
TO BE COMPLETED BY PURCHASER IF
(a) ABOVE IS CHECKED:
The undersigned represents and
warrants that it is purchasing this Security for its own account or
an account with respect to which it exercises sole investment
discretion and that it and any such account is a “qualified
institutional buyer” within the meaning of Rule 144A
under the Securities Act and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as the undersigned
has requested pursuant to Rule 144A (including the information
specified in Rule 144(d)(4)) or has determined not to request
such information and that it is aware that the transferor is
relying upon the undersigned’s foregoing representations in
order to claim the exemption from registration provided by
Rule 144A.
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Dated:
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To be signed by an executive
officer
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SCHEDULE OF EXCHANGES FOR
DEFINITIVE SECURITIES
The following exchanges of a part of
this Security in global form for definitive Securities or of
definitive Securities for a part of this Security in global form
have been made:
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Principal
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Amount of
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Amount of
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Amount of
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Signature of
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decrease in
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increase in
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this Security
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authorized
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Principal
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Principal
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in global form
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signatory of
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Amount of
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Amount of
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following such
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Trustee or
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Date of
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this Security
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this Security
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decrease (or
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Securities
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Exchange
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in global form
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in global form
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increase)
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Custodian
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Section 204. Form of
Trustee’s Certificate of Authentication.
TRUSTEE’S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities
referred to in the within-mentioned Indenture.
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U.S. BANK NATIONAL
ASSOCIATION,
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as Trustee
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By
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Authorized Signatory
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Dated:
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30
Section 205. Form of
Legend on Restricted Securities.
During the period beginning on the
Securities Issue Date with respect to a Security that is not an
Exchange Security and ending on the later of the date occurring one
year after such date and the date on which such Security
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