Exhibit 4.10
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CENTENNIAL PUERTO RICO OPERATIONS CORP.,
Issuer
CENTENNIAL COMMUNICATIONS CORP.,
CENTENNIAL CELLULAR OPERATING CO. LLC,
CENTENNIAL CARIBBEAN HOLDING CORP.,
CENTENNIAL PUERTO RICO HOLDING CORP. I,
CENTENNIAL PUERTO RICO HOLDING CORP. II,
Guarantors
and
THE BANK OF NEW YORK
Trustee
_____________
Indenture
Dated as of __________
_____________
Senior Debt Securities
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TABLE OF CONTENTS
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RECITALS OF THE ISSUER
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions............................... 1
Act............................................ 2
Affiliate...................................... 2
Authorized Newspaper........................... 2
Bankruptcy Law................................. 2
Board of Directors............................. 2
Board Resolution............................... 2
Business Day................................... 2
Capital Stock.................................. 2
Capitalized Lease Obligations.................. 3
Centennial..................................... 3
Commission..................................... 3
Corporate Trust Office......................... 3
corporation.................................... 3
Custodian...................................... 3
Defaulted Interest............................. 3
Event of Default............................... 3
GAAP........................................... 4
Guarantee...................................... 4
Guarantor...................................... 4
Holder......................................... 4
Indebtedness................................... 4
Indenture...................................... 5
interest....................................... 5
Interest Payment Date.......................... 5
Interest Rate Protection Obligations........... 5
Issuer......................................... 5
Issuer Request................................. 5
Issuer Order................................... 5
Maturity....................................... 5
obligation..................................... 5
Officers' Certificate.......................... 5
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Opinion of Counsel............................. 6
Original Issue Discount Security............... 6
Outstanding.................................... 6
Parent Guarantor............................... 7
Paying Agent................................... 7
Person......................................... 7
Place of Payment............................... 7
Predecessor Security........................... 7
principal...................................... 7
principal amount............................... 7
Redemption Date................................ 7
Redemption Price............................... 7
Regular Record Date............................ 8
Reporting Date................................. 8
Responsible Officer............................ 8
Restricted Subsidiary.......................... 8
Securities..................................... 8
Security Register.............................. 8
Security Registrar............................. 8
Significant Restricted Subsidiary.............. 8
Special Record Date............................ 8
Stated Maturity................................ 8
Subsidiary..................................... 8
Trustee........................................ 9
Trust Indenture Act............................ 9
Unrestricted Subsidiary........................ 9
U.S. Government Obligations.................... 9
Vice President................................. 9
SECTION 1.02. Compliance Certificates and Opinions...... 9
SECTION 1.03. Form of Documents Delivered to Trustee.... 10
SECTION 1.04. Acts of Holders........................... 10
SECTION 1.05. Notices, etc. to Trustee and Issuer....... 11
SECTION 1.06. Notice to Holders; Waiver................. 12
SECTION 1.07. Conflict with Trust Indenture Act......... 12
SECTION 1.08. Effect of Headings and Table of Contents.. 12
SECTION 1.09. Successors and Assigns.................... 12
SECTION 1.10. Separability Clause....................... 13
SECTION 1.11. Benefits of Indenture..................... 13
SECTION 1.12. Governing Law............................. 13
SECTION 1.13. Legal Holidays............................ 13
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally........................... 13
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SECTION 2.02. Form of Trustee's Certificate of Authentication........ 14
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series................... 14
SECTION 3.02. Denominations.......................................... 16
SECTION 3.03. Execution, Authentication Delivery and Dating.......... 16
SECTION 3.04. Temporary Securities................................... 18
SECTION 3.05. Registration, Registration of Transfer and Exchange.... 18
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities....... 19
SECTION 3.07. Payment of Interest; Interest Rights Preserved......... 20
SECTION 3.08. Persons Deemed Owners.................................. 21
SECTION 3.09. Cancellation........................................... 21
SECTION 3.10. Computation of Interest................................ 22
SECTION 3.11. CUSIP Numbers.......................................... 22
ARTICLE FOUR
[Intentionally Omitted]
ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 5.01. Satisfaction and Discharge of Indenture................ 22
SECTION 5.02. Defeasance............................................. 23
SECTION 5.03. Application of Trust Money............................. 24
SECTION 5.04. Repayment of Moneys Held by Paying Agent............... 24
SECTION 5.05. Deposited Money and U.S. Government Obligations to be
Held in Trust; Miscellaneous Provisions.......................... 25
ARTICLE SIX
REMEDIES OF THE TRUSTEE ANDHOLDERS ON EVENT OF DEFAULT
SECTION 6.01. Events of Default...................................... 25
SECTION 6.02. Acceleration of Maturity; Rescission and Annulment..... 27
SECTION 6.03. Collection of Indebtedness and Suits for Enforcement
by Trustee............................................. 28
SECTION 6.04. Trustee May File Proofs of Claim....................... 28
SECTION 6.05. Trustee May Enforce Claims Without Possession of
Securities............................................. 29
SECTION 6.06. Application of Money Collected......................... 29
SECTION 6.07. Limitation on Suits.................................... 30
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SECTION 6.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest............................................. 31
SECTION 6.09. Restoration of Rights and Remedies..................... 31
SECTION 6.10. Rights and Remedies Cumulative......................... 31
SECTION 6.11. Delay or Omission Not Waiver........................... 31
SECTION 6.12. Control by Holders..................................... 31
SECTION 6.13. Waiver of Past Defaults................................ 32
SECTION 6.14. Undertaking for Costs.................................. 32
SECTION 6.15. Waiver of Stay or Extension Laws....................... 33
ARTICLE SEVEN
THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities.................... 33
SECTION 7.02. Notice of Defaults..................................... 34
SECTION 7.03. Certain Rights of Trustee.............................. 34
SECTION 7.04. Not Responsible for Recitals or Issuance of
Securities....................................................... 36
SECTION 7.05. May Hold Securities.................................... 36
SECTION 7.06. Money Held in Trust.................................... 36
SECTION 7.07. Compensation and Reimbursement......................... 37
SECTION 7.08. Disqualification; Conflicting Interests................ 37
SECTION 7.09. Corporate Trustee Required; Eligibility................ 38
SECTION 7.10. Resignation and Removal; Appointment of Successor...... 38
SECTION 7.11. Acceptance of Appointment by Successor................. 39
SECTION 7.12. Merger, Conversion, Consolidation or
Succession to Business........................................... 40
SECTION 7.13. Preferential Collection of Claims...................... 41
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
SECTION 8.01. Issuer to Furnish Trustee Names and Addresses of
Holders.......................................................... 41
SECTION 8.02. Preservation of Information; Communications to Holders. 41
SECTION 8.03. Reports by Trustee..................................... 43
SECTION 8.04. Reports by Parent Guarantor............................ 43
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 9.01. Parent Guarantor May Consolidate, etc. Only on Certain
Terms............................................................ 44
SECTION 9.02. Successor Corporation Substituted...................... 45
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ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures without Consent of Holders......... 45
SECTION 10.02. Supplemental Indentures with Consent of Holders............ 46
SECTION 10.03. Execution of Supplemental Indentures....................... 47
SECTION 10.04. Effect of Supplemental Indentures.......................... 48
SECTION 10.05. Conformity with Trust Indenture Act........................ 48
SECTION 10.06. Reference in Securities to Supplemental Indentures......... 48
ARTICLE ELEVEN
COVENANTS
SECTION 11.01. Payment of Principal, Premium and Interest................. 48
SECTION 11.02. Maintenance of Office or Agency............................ 48
SECTION 11.03. Money for Securities Payments to Be Held in Trust.......... 49
SECTION 11.04. Corporate Existence........................................ 50
SECTION 11.05. Payment of Taxes and Other Claims.......................... 50
SECTION 11.06. Maintenance of Properties.................................. 51
SECTION 11.07. Waiver of Certain Covenants................................ 51
SECTION 11.08. Statement by Officers as to Default........................ 51
SECTION 11.09. Further Assurances......................................... 51
SECTION 11.10. Calculation of Original Issue Discount..................... 52
ARTICLE TWELVE
REDEMPTION OF SECURITIES
SECTION 12.01. Applicability of Article................................... 52
SECTION 12.02. Election to Redeem; Notice to Trustee...................... 52
SECTION 12.03. Selection by Trustee of Securities to Be Redeemed.......... 52
SECTION 12.04. Notice of Redemption....................................... 53
SECTION 12.05. Deposit of Redemption Price................................ 54
SECTION 12.06. Securities Payable on Redemption Date...................... 54
SECTION 12.07. Securities Redeemed in Part................................ 54
SECTION 12.08. Securities No Longer Outstanding After Notice to Trustee
and Deposit of Cash................................................... 54
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.01. Applicability of Article................................... 55
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities...... 55
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SECTION 13.03. Redemption of Securities for Sinking Fund.................. 55
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,OFFICERS AND DIRECTORS
SECTION 14.01. Exemption from Individual Liability........................ 56
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 15.01. Purposes of Meetings....................................... 57
SECTION 15.02. Call of Meetings by Trustee................................ 57
SECTION 15.03. Call of Meetings by Issuer or Holders...................... 58
SECTION 15.04. Qualification for Voting................................... 58
SECTION 15.05. Quorum; Adjourned Meetings................................. 58
SECTION 15.06. Regulations................................................ 59
SECTION 15.07. Voting Procedure........................................... 59
SECTION 15.08. Written Consent in Lieu of Meetings........................ 60
SECTION 15.09. No Delay of Rights by Meeting.............................. 60
ARTICLE SIXTEEN
GUARANTEE OF SECURITIES
SECTION 16.01. Guarantee.................................................. 60
SECTION 16.02. Obligations Unconditional.................................. 62
ARTICLE SEVENTEEN
MISCELLANEOUS
SECTION 17.01. Counterparts............................................... 63
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Reconciliation and Tie between Indenture,
dated as of _______________
and
Trust Indenture Act of 1939, as amended
Trust Indenture Indenture
Act Section Section
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310(a)(1).......................................................... 7.09
(a)(2).......................................................... 7.09
(a)(3).......................................................... Not applicable
(a)(4).......................................................... Not applicable
(b)............................................................. 7.08, 7.10
311(a)............................................................. 7.13
(b)............................................................. 7.13
312(a)............................................................. 8.01, 8.02(a)
(b)............................................................. 8.02(b)
(c)............................................................. 8.02
313(a)............................................................. 8.03(a)
(b)(1).......................................................... Not applicable
(b)(2).......................................................... 8.03(b)
(c)............................................................. 8.03(c)
(d)............................................................. 8.03(c)
314(a)............................................................. 8.04
(a)(4).......................................................... 11.08
(b)............................................................. Not applicable
(c)(1).......................................................... 1.02
(c)(2).......................................................... 1.02
(c)(3).......................................................... Not applicable
(d)............................................................. Not applicable
(e)............................................................. 1.02
315(a)............................................................. 7.01(a)
(b)............................................................. 7.02, 8.03(a)
(c)............................................................. 7.01(b)
(d)(1).......................................................... 7.01(a)
(d)(2).......................................................... 7.01(c)
(d)(3).......................................................... 7.01(c)
(e)............................................................. 6.14
316(a)(1)(A)....................................................... 6.12
(a)(1)(B)....................................................... 6.13
(a)(2).......................................................... Not applicable
(b)............................................................. 6.08
317(a)(1).......................................................... 6.03
(a)(2).......................................................... 6.04
(b)............................................................. 11.03
318(a)............................................................. 1.07
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
INDENTURE, dated as of __________, among CENTENNIAL PUERTO RICO
OPERATIONS CORP., a Delaware corporation, as issuer, (the "Issuer"), CENTENNIAL
CELLULAR OPERATING CO. LLC, a limited liability company organized under the
laws of Delaware, CENTENNIAL CARIBBEAN HOLDING CORP., a Delaware corporation,
CENTENNIAL PUERTO RICO HOLDING CORP. I, a Delaware corporation , and CENTENNIAL
PUERTO RICO HOLDING CORP. II, a Delaware corporation (collectively, the
"Guarantors"), as guarantors, CENTENNIAL COMMUNICATIONS CORP., a Delaware
corporation, ("Centennial"), as a guarantor, and THE BANK OF NEW YORK, a New
York banking corporation, as trustee (the "Trustee").
RECITALS OF THE ISSUER
The Issuer has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Securities"), to be
issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Issuer, each Guarantor and Centennial, in accordance with its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions.
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For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them
therein;
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(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(4) 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.
Certain terms, used principally in Article Seven, are defined in that
Article.
"Act" when used with respect to any Holder, has the meaning specified
in Section 1.04.
"Affiliate" means, with respect to any specified Person, (i) any other
Person directly or indirectly controlling or controlled by, or under direct or
indirect common control with, such specified Person or (ii) any officer,
director, or controlling stockholder of such other Person. For purposes of this
definition, the term "control" means the power to direct the management and
policies of a Person, directly or through one or more intermediaries, whether
through the ownership of voting securities, by contract, or otherwise.
"Authorized Newspaper" shall mean a newspaper of general circulation
in the Borough of Manhattan, The City of New York, and customarily published on
each Business Day, currently expected to be The Wall Street Journal (National
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Edition). Where successive publications are required to be made in an
Authorized Newspaper, the successive publications may be made in the same or
different newspapers meeting the foregoing requirements and in each case on any
Business Day.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Bankruptcy Code of 1978
as amended, or any similar United States federal or state law relating to
bankruptcy, insolvency, receivership, winding up, liquidation, reorganization or
relief of debtors or any amendment to, succession to or change in any such law.
"Board of Directors" means either the board of directors of the Issuer
or any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution or resolutions
certified by the Secretary or an Assistant Secretary of the Issuer 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.
"Business Day" when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
to close.
"Capital Stock" means, with respect to any Person, any capital stock
of such Person and shares, interests, participations or other ownership
interests (however designated) of
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any Person and any rights (other than debt securities convertible into capital
stock), warrants and options to purchase any of the foregoing, including
(without limitation) each class of common stock and preferred stock of such
Person if such Person is a corporation, each general and limited partnership
interest of such Person if such Person is a partnership and all membership or
other interests if such Person is a limited-liability company, and any other
interest or participation that confers on a Person the right to receive a share
of the profits and losses of, or distribution of assets of, the issuing Person.
"Capitalized Lease Obligations" means obligations under a lease that
are required to be capitalized for financial reporting purposes in accordance
with GAAP, and the amount of Indebtedness represented by such obligations shall
be the capitalized amount of such obligations, as determined in accordance with
GAAP.
"Centennial" means Centennial Communications Corp., a corporation
organized under the laws of Delaware, until a successor Person shall have become
such pursuant to the applicable provisions hereof, and thereafter "Centennial"
shall mean such successor Person.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Corporate Trust Office" means the principal office of the Trustee at
which at any time its corporate trust business shall be administered, which
office at the date hereof is located at 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New
York, New York 10286, Attention: Corporate Trust Administration, or such other
address as the Trustee may designate from to time by notice to the Holders and
the Company, or the principal corporate trust office of any successor Trustee
(or such other address as a successor Trustee may designate from time to time by
notice to the Holders and the Company).
"corporation" includes corporations, associations, companies and
business trusts.
"Currency Hedging Agreements" means one or more of the following
agreements which shall be entered into by one or more financial institutions:
foreign exchange contracts, currency swap agreements or other similar agreements
or arrangements designed to protect against the fluctuations in currency values.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Event of Default" has the meaning specified in Section 6.01.
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"GAAP" shall mean generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession as in effect from time to time.
"Guarantee" means the guarantee by Centennial or a Guarantor of the
Issuer's Indenture obligations.
"Guarantor" means each of the Parent Guarantor, Centennial Caribbean
Holding Corp., a Delaware corporation, Centennial Puerto Rico Holding Corp. I, a
Delaware corporation, and Centennial Puerto Rico Holding Corp. II, a Delaware
corporation, and any other subsidiary of the Parent Guarantor which becomes a
guarantor of the Issuer's Indenture obligations. Notwithstanding that
Centennial will be guaranteeing the Securities, the term "Guarantor" shall not
for any purpose of the Indenture and the Securities, be deemed to include
Centennial, except with respect to Article Sixteen of this Indenture.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" of any Person means, without duplication, (a) all
liabilities and obligations, contingent or otherwise, of such Person, (i) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion thereof), (ii) evidenced
by bonds, Securities, debentures, or similar instruments, (iii) representing the
balance deferred and unpaid of the purchase price of any property or services
except (other than accounts payable or other obligations to trade creditors
which have remained unpaid for greater than 90 days past their original due date
or to financial institutions, which obligations are not being contested in good
faith and for which appropriate reserves have been established) those incurred
in the ordinary course of its business that would constitute ordinarily a trade
payable to trade creditors, (iv) evidenced by bankers' acceptances or similar
instruments issued or accepted by banks, (v) for the payment of money relating
to a Capitalized Lease Obligation, or (vi) evidenced by a letter of credit or a
reimbursement obligation of such Person with respect to any letter of credit;
(b) all obligations of such Person under Interest Rate Protection Obligations or
Currency Hedging Agreements; (c) all liabilities of others of the kind described
in the preceding clauses (a) or (b) that such Person has guaranteed or that is
otherwise its legal liability or which are secured by assets or property of such
Person and all obligations to purchase, redeem or acquire any Capital Stock; and
(d) any and all deferrals, renewals, extensions, refinancing and refundings
(whether direct or indirect) of, or amendments, modifications or supplements to,
any liability of the kind described in any of the preceding clauses (a), (b),
(c), or this clause (d), whether or not between or among the same parties;
provided that the outstanding principal amount at any date of any Indebtedness
issued with the original issue discount is the face amount of such Indebtedness
less the remaining unamortized portion of the original issue discount of such
Indebtedness at such date.
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"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the form and terms of particular series of Securities
established as contemplated by Section 3.01.
"interest" when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date" when used with respect to any Security, means
the Stated Maturity of an instalment of interest on such Security.
"Interest Rate Protection Obligations" means, with respect to any
Person, the obligations of such Person under (a) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements and (b) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates. For purposes of the Indenture, the amount of such
obligations shall be the amount determined in respect thereof as of the end of
the then most recently ended fiscal quarter of such Person, based on the
assumption that such obligation had terminated at the end of such fiscal
quarter, and in making such determination, if any agreement relating to such
obligation provides for the netting of amounts payable by and to such Person
thereunder or if any such agreement provides for the simultaneous payment of
amounts by and to such Person, then in each such case, the amount of such
obligations shall be the net amount so determined, plus any premium due upon
default by such Person.
"Issuer" means Centennial Puerto Rico Operations Corp., a Delaware
corporation, until a successor Person shall have become such pursuant to the
applicable provisions of the Indenture, and thereafter "Issuer" shall mean such
successor Person.
"Issuer Request" or "Issuer Order" means a written request or order
signed in the name of the Issuer by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Maturity" when used with respect to any Security, means the date on
which the principal of such Security or an instalment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"obligation" means any principal, premium, interest (including
interest accruing subsequent to a bankruptcy or other similar proceeding whether
or not such interest is an allowed claim enforceable against the Issuer in a
bankruptcy case under federal bankruptcy law), penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable pursuant
to the terms of the documentation governing any Indebtedness.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or
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an Assistant Secretary, of the Issuer and the Guarantors, as applicable, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Issuer or the Guarantors, and who shall be acceptable to the
Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 6.02.
"Outstanding" when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities or portions thereof for whose payment or redemption
money or, as provided in Section 5.02 hereof, U.S. Government Obligations,
in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Issuer) in trust or, except for purposes
of Section 5.01, set aside and segregated in trust by the Issuer (if the
Issuer shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed, notice of
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such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 3.06 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this 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 such Securities are valid obligations of the Issuer;
provided, however, that in determining whether the Holders of the requisite
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principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the maturity
thereof pursuant to Section 6.01 and (ii) Securities owned by the Issuer or any
other obligor upon the Securities or any Affiliate of the Issuer or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, or
upon such determination as to the presence of a quorum, 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
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the pledgee's right so to act with respect to such Securities and that the
pledgee is not the Issuer or any other obligor upon the Securities or any
Affiliate of the Issuer or of such other obligor.
"Parent Guarantor" means Centennial Cellular Operating Co. LLC, a
limited liability company organized under the laws of Delaware, until a
successor Person shall have become such pursuant to the applicable provisions of
the Indenture, and thereafter "Parent Guarantor" shall mean such successor
Person.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Issuer.
"Person" means any individual, corporation, partnership, joint
venture, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Place of Payment" when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 3.01.
"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 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"principal" of a debt security, including any Security, on any day and
for any purpose means the amount (including, without limitation, in the case of
an Original Issue Discount Security, any accrued original issue discount, but
excluding interest) that is payable with respect to such debt security as of
such date and for such purpose (including, without limitation, in connection
with any sinking fund, upon any redemption at the option of the Issuer upon any
purchase or exchange at the option of the Issuer or the holder of such debt
security and upon any acceleration of the maturity of such debt security).
"principal amount" of a debt security, including any Security, means
the principal amount as set forth on the face of such debt security.
"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" when used with respect to any Security to be
redeemed, means the price (exclusive of accrued interest, if any) at which it is
to be redeemed pursuant to this Indenture.
8
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 3.01.
"Reporting Date" shall mean, when used with respect to any series of
Securities, the date (and each successive anniversary thereof) established by a
Board Resolution pursuant to Section 3.01 which shall be a date no more than ten
months from the date of the initial issuance of such series of Securities under
this Indenture.
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Subsidiary" means any Subsidiary of the Parent Guarantor,
including the Issuer, that has not been designated by the Board of Directors of
the Parent Guarantor by board resolution delivered to the Trustee as an
Unrestricted Subsidiary.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05.
"Significant Restricted Subsidiary" means one or more Restricted
Subsidiaries having an aggregate net book value of assets in excess of 5.0% of
the net book value of the assets of the Parent Guarantor and its Restricted
Subsidiaries on a consolidated basis.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity" when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" with respect to any Person, means (1) a corporation at
least 50.0% of whose Capital Stock with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly, owned
by such Person, by such Person and one or more Subsidiaries of such Person or by
one or more Subsidiaries of such Person, or (2) a partnership in which such
Person or a Subsidiary of such Person is, at the time, a general partner of such
partnership, or (3) any Person in which such Person, one or more Subsidiaries of
such Person, or such Person
9
and one or more Subsidiaries of such Person, directly or indirectly, at the date
of determination thereof has (x) at least a 50.0% ownership interest or (y) the
power to elect or direct the election of the directors or other governing body
of such Person.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and as in force at the date as of which this instrument was executed,
except as provided in Section 10.05.
"Unrestricted Subsidiary" means any Subsidiary of the Parent Guarantor
(other than a Guarantor) so designated by the Board of Directors of the Parent
guarantor by board resolution delivered to the Trustee as an Unrestricted
Subsidiary.
"U.S. Government Obligations" has the meaning specified in Section
5.02.
"Vice President" when used with respect to the Issuer, a Guarantor or
the Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president."
SECTION 1.02. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Issuer or a Guarantor to the
Trustee to take any action under any provision of this Indenture, the Issuer or
a Guarantor shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent (including any covenants compliance with which
constitutes a condition precedent), if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent (including any covenants compliance with which constitutes a condition
precedent), if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than annual
certificates provided pursuant to Section 11.08) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
10
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of 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
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. 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 Issuer or a Guarantor
may be based, insofar as it relates to legal matters, upon a certificate or
Opinion of Counsel, 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 or
representation by 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 Issuer or a Guarantor stating that the information with respect
to such factual matters is in the possession of the Issuer or a Guarantor,
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 1.04. 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 or by the record of the Holders voting in favor thereof at
any meeting of such Holders duly called and held in accordance with the
provisions of Article Fifteen; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or any such record is delivered to the Trustee and, where it is hereby expressly
required, to the Issuer. Such instrument or instruments or such
11
record (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments or voting at such meeting. 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 conclusive in favor of the Trustee and the Issuer if made in
the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 15.07 and the
record so proved shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Issuer, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof, or may be
proved in such other manner as shall be deemed sufficient by the Trustee. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and 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, omitted or suffered to be done by the Trustee or the
Issuer in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) The Issuer or the Trustee, as applicable, may set a date for the
purpose of determining the Holders of Securities entitled to consent, vote or
take any other action referred to in this Section 1.04, which date shall be not
less than 10 days nor more than 60 days prior to the taking of the consent, vote
or other action.
SECTION 1.05. Notices, etc. to Trustee and Issuer.
-----------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of the Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Issuer shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office and, unless otherwise
herein expressly provided, any such document shall be deemed to be
sufficiently made, given, furnished or filed upon its receipt by a
Responsible Officer of the Trustee, or
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(2) the Issuer by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Issuer addressed
to it at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously furnished
in writing to the Trustee by the Issuer.
SECTION 1.06. 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. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.07. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture Act
through operation of Section 318(c), such imposed duties shall control.
SECTION 1.08. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Issuer or a
Guarantor shall bind their successors and assigns, whether so expressed or not.
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SECTION 1.10. 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 1.11. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 1.12. Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 1.13. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of principal of (and premium, if any) or interest, if any,
on such Security need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, provided that no additional interest shall
accrue with respect to the payment due on such date for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally.
---------------
The Securities of each series shall be in substantially the form
established from time to time by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of such 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. If the form of Securities of any
series
14
is established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Issuer and delivered to the Trustee at or prior to
the delivery of the Issuer Order contemplated by Section 3.03 for the
authentication and delivery of such Securities. Any such Board Resolution or
record of such action shall have attached thereto a true and correct copy of the
form of Security referred to therein approved by or pursuant to such Board
Resolution.
The Trustee's certificate of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificate of authentication on all Securities shall be
in substantially the following form:
This is one of the Securities of the series designated therein issued
under the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By _____________________________________
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
15
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other securities of the
series pursuant to Section 3.04, 3.05, 3.06, 10.06 or 12.07);
(3) the date or dates on which the principal (and premium, if any) of
the Securities of the series is payable or the method of determination
thereof;
(4) the rate or rates (which may be fixed or variable), or the method
of determination thereof, at which the Securities of the series shall bear
interest, if any, including the rate of interest applicable on overdue
payments of principal or interest, if different from the rate of interest
stated in the title of the Security, the date or dates from which such
interest shall accrue or the method of determination thereof, the Interest
Payment Dates on which such interest shall be payable and the Regular
Record Date for the interest payable on any Interest Payment Date;
(5) the Paying Agent or Paying Agents for the Securities of the
series if other than the Trustee;
(6) the Place of Payment of the Securities of the series;
(7) if applicable, the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the Issuer;
(8) the obligation, if any, of the Issuer to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
6.02;
(11) if the provisions of Section 5.02 of this Indenture are to apply
to the Securities of the series, a statement indicating the same;
(12) any deletions from or modifications of or additions to the
Events of Default set forth in Section 6.01 pertaining to the Securities of
the series;
(13) the form of the Securities of the series;
16
(14) any other terms of a particular series and any other provisions
expressing or referring to the terms and conditions upon which the
Securities of that series are to be issued, which terms and provisions are
not in conflict with the provisions of this Indenture or do not adversely
affect the rights of Holders of any other series of Securities then
Outstanding); provided, however, that the addition to or subtraction from
-------- -------
or variation of Articles Five, Six, Nine, Eleven, Thirteen and Sixteen (and
Section 1.01 insofar as it relates to the definition of certain terms as
used in such Articles) with regard to the Securities of a particular series
shall not be deemed to constitute a conflict with the provisions of those
Articles; and
(15) the Reporting Date of the Securities of the series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officers' Certificate or in any
such indenture supplemental hereto.
The Securities of all series shall rank on a parity in right of
payment.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Issuer and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.02. Denominations.
-------------
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 3.01. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication Delivery and Dating.
---------------------------------------------
The Securities shall be executed on behalf of the Issuer by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Securities of any series executed by the
Issuer to the Trustee for authentication, together with a Issuer Order for the
authentication and delivery of such Securities,
17
and the Trustee in accordance with the Issuer Order shall authenticate and
deliver such Securities. In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive and (subject to Section 7.01) shall be
fully protected in relying upon the documents specified in Section 314 of the
Trust Indenture Act, and, in addition:
(a) a Board Resolution relating thereto, and if applicable, an
appropriate record of any action taken pursuant to such Board Resolution,
certified by the Secretary or Assistant Secretary of the Issuer to have been
duly adopted by the Board of Directors and to be in full force and effect as of
the date of such certificate, and if the terms and form of the Securities are
established by an Officers' Certificate pursuant to general authorization of the
Board of Directors, such Officers' Certificate;
(b) an executed supplemental indenture, if any; and
(c) an Opinion of Counsel which shall state:
(1) that the form and terms of such Securities have been established
by or pursuant to Board Resolutions, by a supplemental indenture or by both
such resolution or resolutions and such supplemental indenture in
conformity with the provisions of this Indenture;
(2) that the supplemental indenture, if any, when executed and
delivered by the Issuer, a Guarantor and the Trustee, will constitute a
valid and legally binding obligation of the Issuer and a Guarantor; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Issuer in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Issuer, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles, and will be entitled to
the benefits of this Indenture;
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
18
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 3.04. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Issuer may execute, and upon Issuer Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
reproduced or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Issuer will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Issuer in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series, the Issuer shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized denominations.
Until so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
SECTION 3.05. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Issuer shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Issuer in a Place of Payment being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Issuer shall provide for the registration
of Securities and of transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the Issuer
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal amount
and Stated Maturity.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
an equal aggregate
00
xxxxxxxxx xxxxxx, xxxx xxxxxxxxx of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Issuer shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Issuer, evidencing the same
debt and entitled to the same benefits under this Indenture as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Issuer or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing with such signature
guaranteed.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.04, 10.06 or 12.07 not involving any transfer.
The Issuer shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 12.03 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange of any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in part.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Issuer
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Issuer and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Issuer or the Trustee that such Security has been acquired by a bona fide
purchaser, the Issuer shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
20
If any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Issuer in its discretion may, instead
of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Issuer
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Issuer, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
At the option of the Issuer, interest on the Securities of any series
that bear interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Security Register.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date
("Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Issuer, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Issuer may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Issuer shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Issuer shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such
21
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided. Thereupon
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than
10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Issuer of such Special Record Date and,
in the name and at the expense of the Issuer, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Issuer may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Issuer to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer,
the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 3.07) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and none of the Issuer, the
Trustee or any agent of the Issuer or the Trustee shall be affected by notice to
the contrary.
SECTION 3.09. Cancellation.
------------
All Securities surrendered for payment, redemption, conversion,
registration of transfer or exchange or for credit against any sinking fund
payment or analogous obligation shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and promptly shall be cancelled by it
and, if surrendered to the Trustee, shall be promptly cancelled by it. The
Issuer may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Issuer may have
acquired in any manner
22
whatsoever, and all Securities so delivered promptly shall be cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of in accordance with the Trustee's customary procedures.
SECTION 3.10. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.
SECTION 3.11. CUSIP Numbers.
-------------
The Issuer in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
--------
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Issuer will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
[Intentionally Omitted]
ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 5.01. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Issuer Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Issuer, shall execute such instruments as may be requested by the Issuer
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as
23
provided in Section 3.06 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Issuer and thereafter repaid to the Issuer or discharged from such trust,
as provided in Section 11.03) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for
cancellation (other than Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 3.06),
for principal (and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
(3) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Trustee under Section 7.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 5.03 and the last
paragraph of Section 11.03 shall survive.
SECTION 5.02. Defeasance.
----------
Provided that the same has been duly authorized with respect to
Securities of a particular series pursuant to Section 3.01(11), if, at any time
after the date hereof, the Issuer shall deposit with the Trustee, in trust for
the benefit of the Holders thereof, (i) funds sufficient, in the opinion of a
nationally recognized firm of independent accountants expressed in a written
certification delivered to the Trustee, to pay, or (ii) U.S. Government
Obligations (as defined below) as will, or will together with the income thereon
without consideration of any reinvestment thereof, be sufficient to pay all sums
due for the principal of (and premium, if any) and interest, if any, on the
Securities of such series, as they
24
shall become due from time to time, and shall pay all costs, charges and
expenses incurred or to be incurred by the Trustee in relation thereto or in
carrying out the provisions of this Indenture, this Indenture shall cease to be
of further effect with respect to Securities of such series (except as to (i)
the Issuer's or a Guarantor's obligations, as the case may be, with respect to
Securities of such series under Sections 3.05, 3.06 and 11.02, (ii) rights of
Holders to receive payments of the principal of (and premium, if any) and
interest, if any, on the Securities of such series as they shall become due from
time to time and other rights, duties and obligations of Holders as
beneficiaries hereof with respect to the amounts so deposited with the Trustee,
and (iii) the rights, obligations and immunities of the Trustee hereunder (for
which purposes the Securities of such series shall be deemed outstanding)), and
the Trustee, on the written request of the Issuer or a Guarantor, accompanied by
the Officers' Certificate and Opinion of Counsel required by Section 1.02, shall
execute and deliver to the Issuer or a Guarantor such instruments as shall be
requisite to evidence the satisfaction thereof with respect to Securities of
such series.
As used in this Article Five, "U.S. Government Obligations" means
securities that are (i) direct obligations of the United States of America for
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation of the United States of
America, which, in either case under clauses (i) or (ii), are not callable or
redeemable at the option of the issuer thereof, and will also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specified payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
SECTION 5.03. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 11.03, all
money deposited with the Trustee pursuant to Sections 5.01 and 5.02 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Issuer or a Guarantor acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment such money has
been deposited with the Trustee.
SECTION 5.04. Repayment of Moneys Held by Paying Agent.
----------------------------------------
Any money deposited with the Trustee or any other Paying Agent
remaining unclaimed by the holders of any Securities for two years after the
date upon which the principal
25
of or interest on such Securities shall have become due and payable, shall be
repaid to the Issuer by the Trustee or any such other Paying Agent and such
holders shall thereafter be entitled to look to the Issuer only as general
creditors for payment thereof (unless otherwise provided by law); provided,
--------
however, that, before the Trustee or any such other Paying Agent is required to
--------
make any such payment to the Issuer, the Trustee may, if requested by the Issuer
and at the expense of the Issuer, cause to be published once in an Authorized
Newspaper a notice that such money remains unclaimed and that, after the date
set forth in said notice, the balance of such money then unclaimed will be
returned to the Issuer.
SECTION 5.05. Deposited Money and U.S. Government Obligations to be
-----------------------------------------------------
Held in Trust; Miscellaneous Provisions.
---------------------------------------
The Issuer shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 5.02 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND
HOLDERS ON EVENT OF DEFAULT
SECTION 6.01. Events of Default.
-----------------
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment or analogous
obligation, when and as due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Parent Guarantor in this Indenture or any Security of that
series (other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt with or which
has expressly been included in this Indenture solely for the benefit of
series of Securities other than that series), and continuance of such
default
26
or breach for a period of 90 days after there has been given, by registered
or certified mail, to the Issuer by the Trustee or to the Issuer and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of Centennial, the Parent Guarantor
or any Significant Restricted Subsidiary in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging
Centennial, the Parent Guarantor or any Significant Restricted Subsidiary a
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
Centennial, the Parent Guarantor or any Significant Restricted Subsidiary
under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of Centennial, the Parent Guarantor or any Significant Restricted
Subsidiary or of any substantial part of their property, or ordering the
winding up or liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order unstayed and
in effect for a period of 60 consecutive days; or
(6) the commencement by Centennial, the Parent Guarantor or any
Significant Restricted Subsidiary of a voluntary case or proceeding under
any applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or
order for relief in respect of Centennial, the Parent Guarantor or any
Significant Restricted Subsidiary in an involuntary case or proceeding
under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by it
of a petition or answer or consent seeking reorganization or relief under
any applicable federal or state law, or the consent by it to the filing of
such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official
of Centennial, the Parent Guarantor or any Significant Restricted
Subsidiary of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by Centennial, the Parent Guarantor or any
Significant Restricted Subsidiary in furtherance of any such action; or
(7) any Guarantee of a Significant Restricted Subsidiary shall for
any reason cease to be, or shall for any reason be asserted in writing by
any Guarantor or the Parent Guarantor not to be, in full force and effect
and enforceable in accordance with its terms, except to the extent
contemplated by the Indenture and any such Guarantee; or
(8) any other Event of Default provided with respect to Securities of
that series.
27
SECTION 6.02. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
of the Securities of that series to be due and payable immediately, by a notice
in writing to the Issuer (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable, anything in this Indenture or in any of the
Securities of such series to the contrary notwithstanding.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Issuer and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Issuer has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
28
SECTION 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Issuer covenants that if
(1) default is made in the payment of interest on any Security when
such interest becomes due and payable and such default continues for a
period of 30 days,
(2) default is made in the payment of the principal of (or, premium,
if any, on) any Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any sinking fund
payment or analogous obligation when the same becomes due pursuant to the
terms of any Security,
the Issuer, upon demand of the Trustee, will pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal, including any sinking fund payment or analogous
obligations (and premium, if any) and interest, if any, and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest, at the rate or
rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Issuer fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Issuer or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Issuer or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 6.04. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Issuer or any other obligor upon the
Securities or the property of the Issuer or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Issuer for the payment of overdue
29
principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents and take such other
actions, including participating as a member, voting or otherwise, of any
official committee of creditors appointed in such matter, as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claim and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding except as aforesaid,
to vote for the election of a trustee in bankruptcy or similar person or to
participate as a member, voting or otherwise, on any committee of creditors.
SECTION 6.05. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 6.06. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the
30
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
7.07;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if
any) and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Issuer, its
successors or assigns, or to whomever may be so lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
SECTION 6.07. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than a majority in principal amount of
the Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
satisfactory to it against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
31
SECTION 6.08. Unconditional Right of Holders to Receive Principal, Premium and
----------------------------------------------------------------
Interest.
--------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.07) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and the right to institute suit for the enforcement of any such payment
and such rights shall not be impaired without the consent of such Holder.
SECTION 6.09. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Issuer, a Guarantor, the Trustee and the
Holders shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 6.10. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.11. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 6.12. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
--------
32
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to the Holders of the Securities of such series not
taking part in such direction, or to the Holders of the Securities of any
other series, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 6.13. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Ten cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 6.14. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest on any Security on
or after the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
33
SECTION 6.15. Waiver of Stay or Extension Laws.
--------------------------------
The Issuer and Guarantors covenant (to the extent that they may
lawfully do so) that they will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Issuer and
Guarantors (to the extent that they may lawfully do so) hereby expressly waive
all benefit or advantage of any such law and covenants that they will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE SEVEN
THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture but need not verify the
accuracy of the contents thereof or whether procedures specified by or
pursuant to the provisions of this Indenture have been followed in the
preparation thereof.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
34
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series, determined as provided in Section 6.12, relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture with respect to the Securities of such
series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or indemnity satisfactory to it against such
risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 7.02. Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
-------- -------
except in the case of a default in the payment of the principal of (or premium,
if any) or interest on any Security of such series or in the payment of any
sinking fund or analogous obligation instalment with respect to Securities of
such series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case of any default of the
-------- -------
character specified in Section 6.01(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.
SECTION 7.03. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 7.01:
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice,
35
request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request or direction of the Issuer or a Guarantor mentioned
herein shall be sufficiently evidenced by a Issuer Request or Issuer Order
and any resolution of the Board of Directors may be sufficiently evidenced
by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Issuer
or a Guarantor, personally or by agent or attorney at the sole cost of the
Issuer and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) the Trustee shall not be deemed to have notice or knowledge of
any matter unless a Responsible Officer assigned to and working in the
Trustee's corporate trust department has actual knowledge thereof or unless
written notice thereof is received by the Trustee at the Corporate Trust
Office and such notice references the Securities generally, the Issuer, a
Guarantor or this Indenture. Whenever reference is made in this
36
Indenture to an Event of Default, such reference shall, insofar as
determining any liability on the part of the Trustee is concerned, be
construed to refer only to an Event of Default of which the Trustee is
deemed to have knowledge in accordance with this paragraph;
(i) the permissive right of the Trustee to take or refrain from
taking any actions enumerated in this Indenture shall not be construed as a
duty;
(j) the Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably believed by it to
be authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(k) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and to each agent, custodian and other
Person employed to act hereunder; and
(l) the Trustee may request that the Issuer deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person specified
as so authorized in any such certificate previously delivered and not
superseded.
SECTION 7.04. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of the
Issuer or a Guarantor, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Issuer or a Guarantor of
Securities or the proceeds thereof.
SECTION 7.05. May Hold Securities.
-------------------
The Trustee, any Paying Agent, any Security Registrar or any other
agent of the Issuer or a Guarantor, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to Sections 7.08 and
7.13, may otherwise deal with the Issuer or a Guarantor with the same rights it
would have if it were not Trustee, Paying Agent, Security Registrar or such
other agent.
SECTION 7.06. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder.
37
SECTION 7.07. Compensation and Reimbursement.
------------------------------
The Issuer and Guarantors agree (1) to pay to the Trustee from time to
time such compensation as the Issuer, Guarantors and the Trustee shall from
time to time agree in writing for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee or any predecessor Trustee and their
agents for, and to hold them harmless against, any and all loss, damage,
claims, liability or expense, including taxes (other than taxes based upon,
measured by or determined by the income of the Trustee) incurred without
negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses, including reasonable attorneys' fees, of
defending itself against any claim (whether asserted by the Issuer,
Guarantors or any Holder or any other Person) or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Issuer and
Guarantors under this Section the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee, except
funds held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 6.01, the expenses (including the
reasonable charges and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration under any
applicable federal or state bankruptcy, insolvency or other similar law.
SECTION 7.08. Disqualification; Conflicting Interests.
---------------------------------------
The Trustee for the Securities of any series issued hereunder shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act during
the period of time provided for therein. In determining whether the Trustee has
a conflicting interest as defined in Section 310(b) of the Trust Indenture Act
with respect to the Securities of any series, there shall be excluded this
Indenture with respect to Securities of any particular series of Securities
other than that series. Nothing herein shall prevent the Trustee from filing
with the Commission the application referred to in the second to last paragraph
of Section 310(b) of the Trust Indenture Act.
38
SECTION 7.09. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a corporate Trustee hereunder which
complies with the requirements of Section 310(a) of the Trust Indenture Act,
having a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by federal or state authority and having its
Corporate Trust Office in the Borough of Manhattan, The City of New York. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of said supervising or examining authority, then for
the purposes of this Section the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
SECTION 7.10. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 7.11.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Issuer. If the
instrument of acceptance by a successor Trustee required by Section 7.11 shall
not have been delivered to the Trustee within 10 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction at the Issuer's expense for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Issuer.
(d) If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of removal, the Trustee being removed may petition, at the expense of the
Issuer, any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(e) If at any time:
(1) the Trustee shall fail to comply with Section 7.08(a) after
written request therefor by the Issuer or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 7.09 and
shall fail to resign after written request therefor by the Issuer, a
Guarantor or by any such Holder, or
39
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer or a Guarantor by a Board Resolution may
remove the Trustee with respect to all Securities, or (ii) subject to Section
6.14, any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or Trustees.
(f) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Issuer, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 7.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Issuer and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
7.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Issuer. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Issuer or the Holders and accepted appointment in the
manner required by Section 7.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(g) The Issuer shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event to all Holders of Securities of such series as
their names and addresses appear in the Security Register. Each notice shall
include the name of the successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
SECTION 7.11. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Issuer and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights,
40
powers, trusts and duties of the retiring Trustee; but, on the request of the
Issuer, a Guarantor or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Issuer, the
Guarantor, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Issuer, a Guarantor or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Issuer shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 7.12. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee
41
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities.
SECTION 7.13. Preferential Collection of Claims.
---------------------------------
If and when the Trustee shall be or become a creditor of the Issuer
(or any other obligor upon the Securities), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Issuer (or any such other obligor).
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
SECTION 8.01. Issuer to Furnish Trustee Names and Addresses of Holders.
--------------------------------------------------------
The Issuer will furnish or cause to be furnished to the Trustee
(a) semi-annually, either (i) not later than June 1 and November 1 in
each year in the case of Original Issue Discount Securities of any series
which by their terms do not bear interest prior to Maturity, or (ii) not
more than 15 days after each Regular Record Date in the case of Securities
of any other series, a list, each in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Securities
of such series as of the preceding June 1 or November 1 or as of such
Regular Record Date, as the case may be; and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Issuer of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that so long as the Trustee is the Security Registrar with
-------- -------
respect to Securities of any series, no such lists need be furnished.
SECTION 8.02. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 8.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may dispose of any list furnished to it as provided in
Section 8.01 upon receipt of a new list so furnished.
42
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this Indenture or under the Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit to such other Holders, then the Trustee shall, within five business
days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 8.02(a), or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 8.02(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 8.02(a) at the
Issuer's expense, a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders or would be in violation of
applicable law. Such written statement shall specify the basis of such opinion.
If the Commission, after opportunity for a hearing upon the objections specified
in the written statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(b) Every Holder of Securities, by receiving and holding the same,
agrees with the Issuer and the Trustee that neither the Issuer nor the Trustee
nor any agent of either of them shall be held responsible by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 8.02(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 8.02(b).
43
SECTION 8.03. Reports by Trustee.
------------------
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
If required by Section 313(a) of the Trust Indenture Act, the Trustee shall,
within sixty days after each May 15 following the date of this Indenture deliver
to Holders a brief report, dated as of such May 15, which complies with the
provisions of such Section 313(a).
(b) The Trustee shall transmit by mail to the Holders, as hereinafter
provided, a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such) since the date of the last
report transmitted pursuant to subsection (a) of this Section (or if no such
report has yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on property or funds held or collected
by it as Trustee and which it has not previously reported pursuant to this
subsection, except that the Trustee shall not be required (but may elect) to
report such advances if such advances remaining unpaid at any time aggregate 10%
or less of the principal amount of the Securities Outstanding for which it is
Trustee at such time, such report to be transmitted within 90 days after such
time.
(c) All reports required by this Section 8.03, and all other reports
or notices which are required by any other provision of this Indenture to be
transmitted in accordance with the provisions of this Section 8.03, shall be
transmitted by mail: (i) to all registered Holders, as their names and
addresses appear in the Security Register; (ii) to such Holders of such series
as have, within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose; and (iii) except in the case of
reports pursuant to subsection (b) of this Section 8.03, to all Holders of such
series whose names and addresses have been furnished to or received by the
Trustee pursuant to Section 8.01. A copy of each such report shall, at the time
of such transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the Commission and with the
Issuer. The Issuer will notify the Trustee when any Securities are listed on
any stock exchange.
SECTION 8.04. Reports by Parent Guarantor.
---------------------------
The Parent Guarantor shall:
(1) file with the Trustee, within 15 days after the Parent Guarantor
is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Parent Guarantor may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the Parent Guarantor
is not required to file information, documents or reports pursuant to
either of said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations
44
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of 1934 in respect of
a security listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Parent Guarantor with the conditions and covenants of this Indenture as
may be required from time to time by such rules and regulations;
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Parent Guarantor pursuant to paragraphs (1) and
(2) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission; and
(4) be deemed to have satisfied the requirements set forth above if
(a) Centennial prepares, files, mails and supplies reports and other
documents prepared on a consolidated basis of the types required above, in
each case within the applicable time periods, and (b) the Parent Guarantor
is not required to file such reports and other documents separately under
the applicable rules and regulations of the Commission (after giving effect
to any exemptive relief) because of the filings made by Centennial.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 9.01. Parent Guarantor May Consolidate, etc. Only on Certain Terms.
------------------------------------------------------------
The Parent Guarantor shall not consolidate with or merge into any
other corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
(1) in case the Parent Guarantor shall consolidate with or merge into
another corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the corporation formed by such
consolidation or into which the
45
Parent Guarantor is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Parent
Guarantor substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America, any State thereof
or the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of (and premium, if any) and interest on all the Securities and the
performance of every covenant of this Indenture on the part of the Issuer,
the Parent Guarantor and the other Guarantors to be performed or observed;
and
(2) the Parent Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
SECTION 9.02. Successor Corporation Substituted.
---------------------------------
Upon any consolidation by the Parent Guarantor with or merger by the
Parent Guarantor into any other corporation or any conveyance, transfer or lease
of the properties and assets of the Parent Guarantor substantially as an
entirety in accordance with Section 9.01, the successor corporation formed by
such consolidation or into which the Parent Guarantor is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Parent Guarantor under this
Indenture with the same effect as if such successor corporation had been named
as the Parent Guarantor herein, and thereafter, except in the case of a lease,
the predecessor corporation, the Issuer, Centennial and any other Guarantor
shall be relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Issuer or a Guarantor, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Issuer
or a Guarantor and the assumption by any such successor of the covenants of
the Issuer or a Guarantor herein and in the Securities pursuant to Article
Nine; or
46
(2) to add to the covenants of the Issuer or a Guarantor for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein conferred
upon the Issuer or a Guarantor; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Securities, stating
that such Events of Default are expressly being included solely to be
applicable to such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to provide for uncertificated
Securities (so long as any "registration-required obligation" within the
meaning of section 163(f)(2) of the Internal Revenue Code of 1986, as
amended, is in registered form for purposes of such section); or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
--------
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 7.11(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provision with respect to matters or questions arising under
this Indenture, provided such action shall not adversely affect the
--------
interests of the Holders of Securities of any series in any material
respect.
SECTION 10.02. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Issuer and the
Trustee, the Issuer and the Guarantors, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental
47
hereto for the purpose of adding any provision to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, that no such supplemental indenture shall, without
-------- -------
the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
6.02, or adversely affect any right of repayment at the option of the
Holder of any Security, or reduce the amount of, or postpone the date fixed
for, the payment of any sinking fund or analogous obligation, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 6.13 or
Section 11.07, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of the Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 10.03. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall receive, and shall be
fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee in its sole discretion may, but
shall not
48
be obligated to, enter into any such supplemental indenture which adversely
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 10.04. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 10.05. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 10.06. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Issuer shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Issuer, to any such supplemental indenture may be
prepared and executed by the Issuer or a Guarantor and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE ELEVEN
COVENANTS
SECTION 11.01. Payment of Principal, Premium and Interest.
------------------------------------------
The Issuer covenants and agrees for the benefit of the Holders of
Securities of each series that it will duly and punctually pay the principal of
(and premium, if any) and interest, if any, on the Securities of that series in
accordance with the terms of the Securities of that series and this Indenture.
SECTION 11.02. Maintenance of Office or Agency.
-------------------------------
The Issuer will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be
surrendered for registration of transfer and exchange, where notices and demands
to or upon the Issuer in respect of the Securities of that series and this
Indenture may be served and where the Securities may be presented for payment.
The Issuer will give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the Issuer
shall fail to maintain any such
49
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Issuer hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Issuer may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
-------- -------
shall in any manner relieve the Issuer of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Issuer will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 11.03. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Issuer shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest, if any, on the Securities of
that series, set aside, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act or of any failure by the Issuer (or by any
other obligor on the Securities of that series) to make any payment of the
principal of (and premium, if any) or interest, if any, on the Securities of
such series when the same shall be due and payable.
Whenever the Issuer shall have one or more Paying Agents for any
series of Securities, it will, at or prior to the opening of business on each
due date of the principal of (and premium, if any) or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest, if any, so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal
(and premium, if any) or interest, and (unless such Paying Agent is the Trustee)
the Issuer will promptly notify the Trustee of its action or failure so to act.
If the Issuer shall appoint a Paying Agent other than the Trustee for
any series of Securities, it will cause such Paying Agent to execute and deliver
to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest, if any, on the Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
50
(2) give the Trustee notice of any default by the Issuer (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest, if any, on the
Securities of that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge with respect to one or more or all series of
Securities hereunder or for any other reason, pay or by Issuer Order direct any
Paying Agent to pay, to the Trustee all sums held in trust for any such series
by the Issuer or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Issuer or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuer in trust for the payment of the principal of (and premium, if any)
or interest on any Security of any series and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Issuer on Issuer Request subject to applicable
abandoned property and escheat law, or (if then held by the Issuer) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Issuer for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Issuer as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
-------- -------
required to make any such repayment, may at the expense of the Issuer cause to
be published once a week for two consecutive weeks (in each case on any day of
the week) in an Authorized Newspaper notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Issuer.
SECTION 11.04. Corporate Existence.
-------------------
Subject to Article Nine, the Parent Guarantor will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence.
SECTION 11.05. Payment of Taxes and Other Claims.
---------------------------------
The Parent Guarantor will, and will cause each Restricted Subsidiary
to, pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Issuer or any Restricted Subsidiary or upon the income, profits
or property of the Issuer or any Restricted Subsidiary, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become a
lien upon the property of the Issuer or any Restricted Subsidiary; provided,
--------
however, that neither the Issuer nor any Restricted Subsidiary shall be required
-------
to pay or discharge or cause to be paid
51
or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 11.06. Maintenance of Properties.
-------------------------
The Parent Guarantor will cause all its properties used or useful in
the conduct of its business to be maintained and kept in reasonably good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Issuer may
be necessary so that the business carried on in connection therewith may be
properly conducted at all times; provided, however, that nothing in this Section
--------- -------
shall prevent the Issuer from discontinuing the operation or maintenance of any
of its properties if such discontinuance is, in the judgment of the Issuer,
desirable in the conduct of its business and not disadvantageous in any material
respect to the Holders of the Securities of any series.
SECTION 11.07. Waiver of Certain Covenants.
---------------------------
The Parent Guarantor may omit in any particular instance to comply
with any term, provision or condition set forth in Sections 11.04, 11.05 and
11.06, with respect to the Securities of any series, if before the time for such
compliance the Holders of at least 66 2/3% in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Issuer and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
SECTION 11.08. Statement by Officers as to Default.
-----------------------------------
The Issuer will, within 90 days after the close of each fiscal year,
commencing with the first fiscal year following the issuance of Securities of
any series under this Indenture, file with the Trustee a certificate of the
principal executive officer, the principal financial officer or the principal
accounting officer of the Issuer, covering the period from the date of issuance
of such Securities to the end of the fiscal year in which such Securities were
issued, in the case of the first such certificate, and covering the preceding
fiscal year in the case of each subsequent certificate, and stating whether or
not, to the knowledge of the signer, the Issuer has complied with all conditions
and covenants on its part contained in this Indenture, and, if the signer has
obtained knowledge of any default by the Issuer in the performance, observance
or fulfillment of any such condition or covenant, specifying each such default
and the nature thereof. For the purpose of this Section 11.08, compliance shall
be determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.
SECTION 11.09. Further Assurances.
------------------
52
From time to time whenever reasonably demanded by the Trustee, the
Issuer will make, execute and deliver or cause to be made, executed and
delivered any and all such further and other instruments and assurances as may
be reasonably necessary or proper to carry out the intention or facilitate the
performance of the terms of this Indenture.
SECTION 11.10. Calculation of Original Issue Discount.
--------------------------------------
The Issuer shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
ARTICLE TWELVE
REDEMPTION OF SECURITIES
SECTION 12.01. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.01 for Securities of any
series) in accordance with this Article.
SECTION 12.02. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Issuer to redeem any Securities shall be evidenced
by a Board Resolution. In case of any redemption at the election of the Issuer
of less than all the Securities of any series, the Issuer shall, at least 60
days prior to the Redemption Date fixed by the Issuer (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities of such series to be redeemed.
In the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Issuer shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 12.03. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series; provided, however, that
-------- -------
Securities of such series
53
registered in the name of the Issuer shall be excluded from any such selection
for redemption until all Securities of such series not so registered shall have
been previously selected for redemption.
The Trustee shall promptly notify the Issuer in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 12.04. Notice of Redemption.
--------------------
Notice of redemption shall be given not less than 10 nor more than 60
days prior to the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) that interest, if any, accrued to the date fixed for redemption
will be paid as specified in said notice,
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Issuer shall be given by the Issuer or, at the Issuer's request, by the
Trustee in the name and at the expense of the Issuer. No such notice shall be
given at any time when the Issuer or the Trustee
54
shall have received notice that such a default will exist at the date fixed for
such redemption or as a result of such redemption.
SECTION 12.05. Deposit of Redemption Price.
---------------------------
Prior to 10:00 AM New York City time on any Redemption Date, the
Issuer shall deposit with the Trustee or with a Paying Agent (or, if the Issuer
is acting as its own Paying Agent, segregate and hold in trust as provided in
Section 11.03) an amount of money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.
SECTION 12.06. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Issuer shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Issuer at the Redemption Price, together with accrued interest to
the Redemption Date, provided, however, that installments of interest whose
-------- -------
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 12.07. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Issuer or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Issuer and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Issuer shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the security so
surrendered. Securities in denominations larger than $1,000 may be redeemed in
part, but only in whole multiples of $1,000.
SECTION 12.08. Securities No Longer Outstanding After Notice to Trustee and
------------------------------------------------------------
Deposit of Cash.
---------------
If the Issuer, having given notice to the Trustee as provided in
Section 12.02, shall have deposited with the Trustee or a Paying Agent, for the
benefit of the Holders of any
55
Securities of any series or portions thereof called for redemption in whole or
in part cash or other form of payment if permitted by the terms of such
Securities (which amount shall be immediately due and payable to the Holders of
such Securities or portions thereof), in the amount necessary so to redeem all
such Securities or portions thereof on the Redemption Date and provision
satisfactory to the Trustee shall have been made for the giving of notice of
such redemption, such Securities or portions thereof, shall thereupon, for all
purposes of this Indenture, be deemed to be no longer Outstanding, and the
Holders thereof shall be entitled to no rights thereunder or hereunder, except
the right to receive payment of the Redemption Price, together with interest
accrued to the Redemption Date, on or after the Redemption Date of such
Securities or portions thereof.
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.01. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a Amandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 13.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Issuer (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Issuer pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited
--------
pursuant to the terms of such Securities. Such Securities shall be received and
credited for such purpose by the Trustee at the Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund.
-----------------------------------------
56
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Issuer will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 13.02 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 12.03 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Issuer in the manner provided in Section 12.04. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 12.06 and 12.07.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 14.01. Exemption from Individual Liability.
-----------------------------------
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon or otherwise
in respect thereof, shall be had against any incorporator, stockholder, officer
or director, as such, past, present or future, of the Issuer, a Guarantor or of
any successor corporation, either directly or through the Issuer or a Guarantor,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations of the Issuer or a Guarantor, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Issuer, a
Guarantor or of any successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom; and that any and all such personal
liability, either at common law or in equity or by constitution or statute, of,
and any and all such rights and claims against, every such incorporator,
stockholder, officer or director, as such, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and the issuance
of the Securities.
57
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 15.01. Purposes of Meetings.
--------------------
A meeting of Holders of Securities of all or any series may be called
at any time and from time to time pursuant to the provisions of this Article for
any of the following purposes:
(1) to give any notice to the Issuer, a Guarantor or to the Trustee,
or to give any directions to the Trustee, or to waive any default hereunder
and its consequences, or to take any other action authorized to be taken by
the Holders of Securities pursuant to any of the provisions of Article Six;
(2) to remove the Trustee and appoint a successor Trustee pursuant to
the provisions of Article Seven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on behalf
of the Holders of any specified percentage in aggregate principal amount of
the Securities of all or any series, as the case may be, under any other
provision of this Indenture or under applicable law.
SECTION 15.02. Call of Meetings by Trustee.
---------------------------
The Trustee may at any time call a meeting of Holders of Securities of
all or any series to take any action specified in Section 15.01, to be held at
such time and at such place in the Borough of Manhattan, The City of New York,
as the Trustee shall determine. Notice of every meeting of the Holders of
Securities of all or any series, setting forth the time and place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given to all Holders of Securities of each series that may be affected
by the action proposed to be taken at such meeting by publication at least twice
in an Authorized Newspaper prior to the date fixed for the meeting, the first
publication to be not less than 20 nor more than 180 days prior to the date
fixed for the meeting, and the last publication to be not more than five days
prior to the date fixed for the meeting, or such notice may be given to Holders
by mailing the same by first class mail, postage prepaid, to the Holders of
Securities at the time Outstanding, at their addresses as they shall appear in
the Security Register, not less than 20 nor more than 60 days prior to the date
fixed for the meeting. Failure to receive such notice or any defect therein
shall in no case affect the validity of any action taken at such meeting. Any
meeting of Holders of Securities of all or any series shall be valid without
notice if the Holders of all such Securities Outstanding, the Issuer and the
Trustee are present in person or by proxy or shall have waived notice thereof
before or after the meeting.
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SECTION 15.03. Call of Meetings by Issuer or Holders.
-------------------------------------
In case at any time the Issuer, by Board Resolution, or the Holders of
at least 10% in aggregate principal amount of the Securities then Outstanding of
each series that may be affected by the action proposed to be taken at the
meeting shall have requested the Trustee to call a meeting of Holders of
Securities of all series that may be so affected to take any action authorized
in Section 15.01 by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed or made the first publication of the notice of such meeting within 30
days after receipt of such request, then the Issuer or the Holders in the amount
above specified may determine the time and the place in the Borough of
Manhattan, The City of New York for such meeting and may call such meeting by
mailing or publishing notice thereof as provided in Section 15.02.
SECTION 15.04. Qualification for Voting.
------------------------
To be entitled to vote at any meeting of Holders a Person shall (a) be
a Holder of one or more Securities of a series affected by the action proposed
to be taken, or (b) be a Person appointed by an instrument in writing as proxy
by the Holder of one or more such Securities. The right of Holders to have
their votes counted shall be subject to the proviso in the definition of
"Outstanding" in Section 1.01. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Issuer and its counsel.
SECTION 15.05. Quorum; Adjourned Meetings.
--------------------------
At any meeting of Holders, the presence of Persons holding or
representing Securities in an aggregate principal amount sufficient to take
action on the business for the transaction of which such meeting was called
shall be necessary to constitute a quorum. No business shall be transacted in
the absence of a quorum unless a quorum is represented when the meeting is
called to order. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the request of
the Holders of Securities (as provided in Section 15.03), be dissolved. In any
other case the Persons holding or representing a majority in aggregate principal
amount of the Securities represented at the meeting may adjourn such a meeting
for a period of not less than 10 days with the same effect, for all intents and
purposes, as though a quorum had been present. In the absence of a quorum at
any such adjourned meeting, such adjourned meeting may be similarly further
adjourned for a period of not less than 10 days. Notice of the reconvening of
any adjourned meeting shall be given as provided in Section 15.02 except that,
in the case of publication, such notice need be published only once but must be
given not less than five days prior to the date on which the meeting is
scheduled to be reconvened, and in the case of mailing, such notice may be
mailed not less than five days prior to such date.
Any Holder of a Security who has executed an instrument in writing
complying with the provisions of Section 1.04 shall be deemed to be present for
the purposes of determining
59
a quorum and be deemed to have voted; provided, however, that such Holder shall
-------- -------
be considered as present or voting only with respect to the matters covered by
such instrument in writing.
Any resolution passed or decision taken at any meeting of the Holders
of Securities of any series duly held in accordance with this Section shall be
binding on all Holders of such series of Securities whether or not present or
represented at the meeting.
SECTION 15.06. Regulations.
-----------
Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities, in regard to proof of the holding of Securities and of
the appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the Issuer
or by Holders of Securities as provided in Section 15.03, in which case the
Issuer or the Holders of Securities calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the Holders of a
majority in principal amount of the Securities represented at the meeting.
At any meeting each Holder of a Security of a series entitled to vote
at such meeting, or proxy therefor, shall be entitled to one vote for each
$1,000 principal amount (in the case of Original Issue Discount Securities, such
principal amount to be determined as provided in the definition of
"Outstanding") of Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
-------- -------
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote except as a Holder of Securities of such series or proxy therefor.
Any meeting of Holders of Securities duly called pursuant to the provisions of
Section 15.02 or 15.03 at which a quorum is present may be adjourned from time
to time, and the meeting may be held as so adjourned without further notice.
SECTION 15.07. Voting Procedure.
----------------
The vote upon any resolution submitted to any meeting of Holders shall
be by written ballot on which shall be subscribed the signatures of the Holders
of Securities entitled to vote at such meeting, or proxies therefor, and on
which shall be inscribed an identifying number or numbers or to which shall be
attached a list of identifying numbers of the Securities so held or represented
by them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders of Securities
shall be prepared by the secretary of the meeting and there shall be attached to
said
60
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed or published as provided in Section 15.02 and, if applicable,
Section 15.05. The record shall be signed and verified by the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the
Issuer and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 15.08. Written Consent in Lieu of Meetings.
-----------------------------------
The written authorization or consent by the Holders of the requisite
percentage in aggregate principal amount of Securities of any series herein
provided, entitled to vote at any such meeting, evidenced as provided in Section
1.04 and filed with the Trustee, shall be effective in lieu of a meeting of the
Holders of Securities of such series, with respect to any matter provided for in
this Article Fifteen.
SECTION 15.09. No Delay of Rights by Meeting.
-----------------------------
Nothing in this Article contained shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders of Securities
of any or all series or any rights expressly or impliedly conferred hereunder to
make such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or the Holders of Securities of any or
all such series under any provisions of this Indenture or the Securities.
ARTICLE SIXTEEN
GUARANTEE OF SECURITIES
SECTION 16.01. Guarantee.
---------
Subject to the provisions of this Article Sixteen, each of the
Guarantors hereby, jointly and severally, fully and unconditionally Guarantees
to each Holder of Securities hereunder and to the Trustee on behalf of the
Holders: (i) the due and punctual payment of the principal of, premium, if any,
on and interest on each Security, when and as the same shall become due and
payable, whether at maturity, by acceleration or otherwise, the due and punctual
payment of interest on the overdue principal of and interest, if any, on the
Securities, to the extent lawful, and the due and punctual performance of all
other obligations of the Issuer to the Holders or the Trustee, all in accordance
with the terms of such Security and this Indenture and (ii) in the case of any
extension of time of payment or renewal of any Securities or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms
61
of the extension or renewal, at Stated Maturity, by acceleration or otherwise,
subject, however, in the case of clauses (i) and (ii) above, to the limitations
set forth in the next succeeding paragraph.
Each Guarantor and by its acceptance hereof each Holder hereby
confirms that it is the intention of all such parties that the Guarantee by such
Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or
conveyance for purposes of the United States Bankruptcy Code, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
federal or state law. To effectuate the foregoing intention, the Holders and
such Guarantor hereby irrevocably agree that the obligations of such Guarantor
under its Guarantee shall be limited to the maximum amount as will, after giving
effect to all other contingent and fixed liabilities of such Guarantor and after
giving effect to any collections from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under its
Guarantee or pursuant to the following paragraph, result in the obligations of
such Guarantor under its Guarantee not constituting such fraudulent transfer or
conveyance.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantory") under its
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Issuer's
obligations with respect to the Securities or any other Guarantor's obligations
with respect to its Guarantee. "Adjusted Net Assets" of such Guarantor at any
date shall mean the lesser of the amount by which (x) the fair value of the
property of such Guarantor exceeds the total amount of liabilities, including,
without limitation, contingent liabilities (after giving effect to all other
fixed and contingent liabilities incurred or assumed on such date), but
excluding liabilities under the Guarantee, of such Guarantor at such date and
(y) the present fair saleable value of the assets of such Guarantor at such date
exceeds the amount that will be required to pay the probable liability of such
Guarantor on its debts (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date and after giving effect to any
collection from any Subsidiary of such Guarantor in respect of the obligations
of such Subsidiary under the Guarantee of such Guarantor), excluding debt in
respect of its Guarantee, as they become absolute and matured.
Each of the Guarantors hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy of
the Issuer, any right to require a proceeding first against the Issuer, the
benefit of discussion, protest or notice with respect to any such Security or
the debt evidenced thereby and all demands whatsoever (except as specified
above), and covenants that this Guarantee will not be discharged as to any such
Security except by payment in full of the principal thereof and interest thereon
and as provided in Sections 5.01 and 5.02. In the event of any declaration of
acceleration of such obligations as provided in Article Six, such obligations
(whether or not due and payable) shall forthwith become due and payable by the
Guarantors for the purposes of this Article Sixteen. In addition, without
limiting the foregoing provisions, upon the effectiveness of an acceleration
under Article Six, the Trustee shall promptly make a demand for payment on the
Securities under the Guarantee provided for in this Article Sixteen.
62
The obligations of each Guarantor under its Guarantee are independent
of the obligations Guaranteed by such Guarantor hereunder, and a separate action
or actions may be brought and prosecuted by the Trustee on behalf of, or by, the
Holders, subject to the terms and conditions set forth in this Indenture,
against a Guarantor to enforce this Guarantee, irrespective of whether any
action is brought against the Issuer or whether the Issuer is joined in any such
action or actions.
If the Trustee or the Holder is required by any court or otherwise to
return to the Issuer or any Guarantor, or any custodian, receiver, liquidator,
trustee, sequestrator or other similar official acting in relation to the Issuer
or such Guarantor, any amount paid to the Trustee or such Holder in respect of a
Security, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each of the Guarantors further agrees, to
the fullest extent that it may lawfully do so, that, as between it, on the one
hand, and the Holders and the Trustee, on the other hand, the maturity of the
obligations Guaranteed hereby may be accelerated as provided in Article Six
hereof for the purposes of this Guarantee, notwithstanding any stay, injunction
or other prohibition extant under any applicable bankruptcy law preventing such
acceleration in respect of the obligations Guaranteed hereby.
Each of the Guarantors hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against the Issuer or any other
Guarantor that arise from the existence, payment, performance or enforcement of
its obligations under this Guarantee and this Indenture, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution,
indemnification, any right to participate in any claim or remedy of the Holders
against the Issuer or any Guarantor or any collateral which any such Holder or
the Trustee on behalf of such Holder hereafter acquires, whether or not such
claim, remedy or right arises in equity, or under contract, statute or common
law, including, without limitation, the right to take or receive from the Issuer
or a Guarantor, directly or indirectly, in cash or other property or by set-off
or in any other manner, payment or security on account of such claim or other
rights. If any amount shall be paid to a Guarantor in violation of the
preceding sentence and the principal of, premium, if any, and accrued interest
on the Securities shall not have been paid in full, such amount shall be deemed
to have been paid to such Guarantor for the benefit of, and held in trust for
the benefit of, the Holders, and shall forthwith be paid to the Trustee for the
benefit of the Holders to be credited and applied upon the principal of,
premium, if any, and accrued interest on the Securities. Each of the Guarantors
acknowledges that it will receive direct and indirect benefits from the issuance
of the Securities pursuant to this Indenture and that the waivers set forth in
this Section 16.01 are knowingly made in contemplation of such benefits.
The Guarantee set forth in this Section 16.01 shall not be valid or
become obligatory for any purpose with respect to a Security until the
certificate of authentication on such Security shall have been signed by or on
behalf of the Trustee.
SECTION 16.02. Obligations Unconditional.
-------------------------
63
Nothing contained in this Article Sixteen or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among any
Guarantor and the holders of the Securities, the obligation of such Guarantor,
which is absolute and unconditional, upon failure by the Issuer, to pay to the
holders of the Securities the principal of, premium, if any, and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of such Guarantor, nor shall anything herein or therein
prevent any Holder or the Trustee on their behalf from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture.
ARTICLE SEVENTEEN
MISCELLANEOUS
SECTION 17.01. Counterparts.
------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
THE BANK OF NEW YORK hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
64
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
CENTENNIAL PUERTO RICO OPERATIONS CORP.
By:
----------------------------------------
Name:
Title:
CENTENNIAL COMMUNICATIONS CORP.
By:
----------------------------------------
Name:
Title:
CENTENNIAL CELLULAR OPERATING CO. LLC
By:
----------------------------------------
Name:
Title:
CENTENNIAL CARIBBEAN HOLDING CORP.
By:
----------------------------------------
Name:
Title:
65
CENTENNIAL PUERTO RICO HOLDING CORP. I
By:
----------------------------------------
Name:
Title:
CENTENNIAL PUERTO RICO HOLDING CORP. II
By:
----------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
----------------------------------------
Name:
Title:
