Exhibit 4.12
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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
WILMINGTON TRUST COMPANY,
Trustee
_____________
Indenture
Dated as of ____________
_____________
Subordinated Debt Securities
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TABLE OF CONTENTS
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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
Credit Facility............................................................................. 3
Custodian................................................................................... 3
Defaulted Interest.......................................................................... 3
Designated Senior Indebtedness.............................................................. 4
Event of Default............................................................................ 4
Existing Notes.............................................................................. 4
GAAP........................................................................................ 4
Government Securities....................................................................... 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.................................................................................... 6
Non-Payment Default......................................................................... 6
obligation.................................................................................. 6
Officers' Certificate....................................................................... 6
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Opinion of Counsel.......................................................................... 6
Original Issue Discount Security............................................................ 6
Outstanding................................................................................. 6
Parent Guarantor............................................................................ 7
Pari Passu Indebtedness..................................................................... 7
Paying Agent................................................................................ 7
Payment Default............................................................................. 7
Person...................................................................................... 7
Place of Payment............................................................................ 8
Predecessor Security........................................................................ 8
principal................................................................................... 8
principal amount............................................................................ 8
Redemption Date............................................................................. 8
Redemption Price............................................................................ 8
Regular Record Date......................................................................... 8
Reporting Date.............................................................................. 8
Representative.............................................................................. 8
Responsible Officer......................................................................... 8
Restricted Subsidiary....................................................................... 9
Securities.................................................................................. 9
Security Register........................................................................... 9
Security Registrar.......................................................................... 9
Senior Indebtedness......................................................................... 9
Significant Restricted Subsidiary........................................................... 10
Special Record Date......................................................................... 10
Stated Maturity............................................................................. 10
Subordinated Indebtedness................................................................... 10
Subsidiary.................................................................................. 10
Trustee..................................................................................... 10
Trust Indenture Act......................................................................... 10
Unrestricted Subsidiary..................................................................... 10
U.S. Government Obligations................................................................. 10
Vice President.............................................................................. 10
SECTION 1.02. Compliance Certificates and Opinions................................................... 11
SECTION 1.03. Form of Documents Delivered to Trustee................................................. 11
SECTION 1.04. Acts of Holders........................................................................ 12
SECTION 1.05. Notices, etc. to Trustee and Issuer.................................................... 13
SECTION 1.06. Notice to Holders; Waiver.............................................................. 13
SECTION 1.07. Conflict with Trust Indenture Act...................................................... 13
SECTION 1.08. Effect of Headings and Table of Contents............................................... 14
SECTION 1.09. Successors and Assigns................................................................. 14
SECTION 1.10. Separability Clause.................................................................... 14
SECTION 1.11. Benefits of Indenture.................................................................. 14
SECTION 1.12. Governing Law.......................................................................... 14
SECTION 1.13. Legal Holidays......................................................................... 14
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ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally................................................................................ 15
SECTION 2.02. Form of Trustee's Certificate of Authentication................................................ 15
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series........................................................... 16
SECTION 3.02. Denominations.................................................................................. 17
SECTION 3.03. Execution, Authentication Delivery and Dating.................................................. 18
SECTION 3.04. Temporary Securities........................................................................... 19
SECTION 3.05. Registration, Registration of Transfer and Exchange............................................ 19
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities............................................... 20
SECTION 3.07. Payment of Interest; Interest Rights Preserved................................................. 21
SECTION 3.08. Persons Deemed Owners.......................................................................... 22
SECTION 3.09. Cancellation................................................................................... 23
SECTION 3.10. Computation of Interest........................................................................ 23
ARTICLE FOUR
SUBORDINATION OF SECURITIES
SECTION 4.01. Securities Subordinate to Senior Indebtedness.................................................. 23
SECTION 4.02. Payment over of Proceeds upon Dissolution, etc................................................. 23
SECTION 4.03. Suspension of Payment When Designated Senior Indebtedness in Default........................... 25
SECTION 4.04. Payment Permitted If No Default................................................................ 26
SECTION 4.05. Subrogation to Rights of Holders of Senior Indebtedness........................................ 26
SECTION 4.06. Provisions Solely to Define Relative Rights.................................................... 26
SECTION 4.07. Trustee to Effectuate Subordination............................................................ 27
SECTION 4.08. No Waiver of Subordination Provisions.......................................................... 27
SECTION 4.09. Distribution or Notice to Representative....................................................... 27
SECTION 4.10. Notice to Trustee.............................................................................. 28
SECTION 4.11. Reliance on Judicial Order or Certificate of Liquidating Agent................................. 28
SECTION 4.12. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights..................................................................... 29
SECTION 4.13. Article Applicable to Paying Agents............................................................ 29
SECTION 4.14. No Suspension of Remedies...................................................................... 29
SECTION 4.15. Trust Moneys Not Subordinated.................................................................. 29
SECTION 4.16. Trustee Not Fiduciary for Holders of Senior Indebtedness....................................... 29
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ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 5.01. Satisfaction and Discharge of Indenture........................................................ 30
SECTION 5.02. Defeasance..................................................................................... 31
SECTION 5.03. Application of Trust Money..................................................................... 32
SECTION 5.04. Repayment of Moneys Held by Paying Agent....................................................... 32
SECTION 5.05. Reinstatement.................................................................................. 32
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND
HOLDERS ON EVENT OF DEFAULT
SECTION 6.01. Events of Default.............................................................................. 33
SECTION 6.02. Acceleration of Maturity; Rescission and Annulment............................................. 34
SECTION 6.03. Collection of Indebtedness and Suits for Enforcement by Trustee................................ 35
SECTION 6.04. Trustee May File Proofs of Claim............................................................... 36
SECTION 6.05. Trustee May Enforce Claims Without Possession of Securities.................................... 37
SECTION 6.06. Application of Money Collected................................................................. 37
SECTION 6.07. Limitation on Suits............................................................................ 37
SECTION 6.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest................................................................................. 38
SECTION 6.09. Restoration of Rights and Remedies............................................................. 38
SECTION 6.10. Rights and Remedies Cumulative................................................................. 39
SECTION 6.11. Delay or Omission Not Waiver................................................................... 39
SECTION 6.12. Control by Holders............................................................................. 39
SECTION 6.13. Waiver of Past Defaults........................................................................ 39
SECTION 6.14. Undertaking for Costs.......................................................................... 40
SECTION 6.15. Waiver of Stay or Extension Laws............................................................... 40
ARTICLE SEVEN
THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities............................................................ 40
SECTION 7.02. Notice of Defaults............................................................................. 42
SECTION 7.03. Certain Rights of Trustee...................................................................... 42
SECTION 7.04. Not Responsible for Recitals or Issuance of Securities......................................... 43
SECTION 7.05. May Hold Securities............................................................................ 43
SECTION 7.06. Money Held in Trust............................................................................ 44
SECTION 7.07. Compensation and Reimbursement................................................................. 44
SECTION 7.08. Disqualification; Conflicting Interests........................................................ 44
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SECTION 7.09. Corporate Trustee Required; Eligibility........................................................ 45
SECTION 7.10. Resignation and Removal; Appointment of Successor.............................................. 45
SECTION 7.11. Acceptance of Appointment by Successor......................................................... 46
SECTION 7.12. Merger, Conversion, Consolidation or Succession to Business.................................... 47
SECTION 7.13. Preferential Collection of Claims Against Issuer............................................... 48
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
SECTION 8.01. Issuer to Furnish Trustee Names and Addresses of Holders....................................... 51
SECTION 8.02. Preservation of Information; Communications to Holders......................................... 52
SECTION 8.03. Reports by Trustee............................................................................. 53
SECTION 8.04. Reports by Parent Guarantor.................................................................... 54
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 9.01. Parent Guarantor May Consolidate, etc. Only on Certain Terms................................... 55
SECTION 9.02. Successor Corporation Substituted.............................................................. 56
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures without Consent of Holders............................................ 56
SECTION 10.02. Supplemental Indentures with Consent of Holders............................................... 57
SECTION 10.03. Execution of Supplemental Indentures.......................................................... 58
SECTION 10.04. Effect of Supplemental Indentures............................................................. 58
SECTION 10.05. Conformity with Trust Indenture Act........................................................... 59
SECTION 10.06. Reference in Securities to Supplemental Indentures............................................ 59
ARTICLE ELEVEN
COVENANTS
SECTION 11.01. Payment of Principal, Premium and Interest.................................................... 59
SECTION 11.02. Maintenance of Office or Agency............................................................... 59
SECTION 11.03. Money for Securities Payments to Be Held in Trust............................................. 60
SECTION 11.04. Corporate Existence........................................................................... 61
SECTION 11.05. Payment of Taxes and Other Claims............................................................. 61
SECTION 11.06. Maintenance of Properties..................................................................... 61
SECTION 11.07. Waiver of Certain Covenants................................................................... 62
SECTION 11.08. Statement by Officers as to Default........................................................... 62
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SECTION 11.09. Further Assurances............................................................................ 62
ARTICLE TWELVE
REDEMPTION OF SECURITIES
SECTION 12.01. Applicability of Article...................................................................... 62
SECTION 12.02. Election to Redeem; Notice to Trustee......................................................... 63
SECTION 12.03. Selection by Trustee of Securities to Be Redeemed............................................. 63
SECTION 12.04. Notice of Redemption.......................................................................... 63
SECTION 12.05. Deposit of Redemption Price................................................................... 64
SECTION 12.06. Securities Payable on Redemption Date......................................................... 64
SECTION 12.07. Securities Redeemed in Part................................................................... 65
SECTION 12.08. Securities No Longer Outstanding After
Notice to Trustee and Deposit of Cash................................................................ 65
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.01. Applicability of Article...................................................................... 65
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities......................................... 66
SECTION 13.03. Redemption of Securities for Sinking Fund..................................................... 66
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 14.01. Exemption from Individual Liability........................................................... 66
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 15.01. Purposes of Meetings.......................................................................... 67
SECTION 15.02. Call of Meetings by Trustee................................................................... 67
SECTION 15.03. Call of Meetings by Issuer or Holders......................................................... 68
SECTION 15.04. Qualification for Voting...................................................................... 68
SECTION 15.05. Quorum; Adjourned Meetings.................................................................... 68
SECTION 15.06. Regulations................................................................................... 69
SECTION 15.07. Voting Procedure.............................................................................. 70
SECTION 15.08. Written Consent in Lieu of Meetings........................................................... 70
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SECTION 15.09. No Delay of Rights by Meeting................................................................. 70
ARTICLE SIXTEEN
GUARANTEE OF SECURITIES
SECTION 16.01. Guarantee..................................................................................... 71
SECTION 16.02. Obligations Unconditional..................................................................... 73
ARTICLE SEVENTEEN
MISCELLANEOUS
SECTION 17.01. Counterparts.....................................................................................73
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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(a)
(b).................................................................... 7.13(b)
312(a).................................................................... 8.01, 8.02(a)
(b).................................................................... 8.02(b)
(c).................................................................... 8.02(c)
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)(6)
(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 WILMINGTON TRUST COMPANY, a
banking corporation duly organized and existing under the laws of the State of
Delaware 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
subordinated 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 any Person and any rights (other than debt
securities convertible into capital stock), warrants and
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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 in
New York, New York at which at any particular time its corporate trust business
shall be administered.
"corporation" includes corporations, associations, companies and
business trusts.
"Credit Facility" means the Credit Agreement dated as of January 7,
1999, as amended and restated as of February 29, 2000, among the Parent
Guarantor and the Issuer, as borrowers, the guarantors named therein and The
Chase Manhattan Bank and other financial institutions party thereto, as such
agreement may be, in one or more agreements with one or more lending groups,
amended, renewed, extended, substituted, refinanced, restructured, replaced,
supplemented or otherwise modified, in whole or in part, from time to time
(including, without limitation, any successive renewals, extensions,
substitutions, refinancings, restructurings, replacements, supplementations or
other modifications of the foregoing, including those that increase the amount
available thereunder in accordance with the terms of this Indenture).
"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.
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"Designated Senior Indebtedness" means (i) all Senior Indebtedness
under the Credit Facility and (ii) any other Senior Indebtedness which at the
time of determination has an aggregate principal amount outstanding of at least
$25 million and which is specifically designated in the instrument evidencing
such Senior Indebtedness or the agreement under which such Senior Indebtedness
arises as "Designated Senior Indebtedness" by the Issuer.
"Event of Default" has the meaning specified in Section 6.01.
"Existing Notes" means the 10 3/4% senior subordinated notes due 2008
issued pursuant to an indenture dated as of December 14, 1998 by and among the
Parent Guarantor, Centennial (as successor to Centennial Finance Corp.) and
Norwest Bank Minnesota, National Association as successor Trustee to The Chase
Manhattan Bank, as Trustee.
"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.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which obligations
or guarantee the full faith and credit of the United States is pledged and which
have a remaining weighted average life to maturity of not more than one year
from the date of investment therein.
"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
5
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.
"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
6
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.
"Non-Payment Default" means any event of default (other than a Payment
Default) the occurrence of which entitles one or more Persons to accelerate the
maturity of any Designated Senior Indebtedness.
"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 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
--------
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
7
(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
-------- -------
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
the Trustee knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Securities and that the pledgee is not the 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.
"Pari Passu Indebtedness" means (a) with respect to the Parent
Guarantor, any Indebtedness of the Parent Guarantor that is pari passu in right
of payment to its Guarantee of the Securities, (b) with respect to Centennial,
any Indebtedness of Centennial that is pari passu in right of payment to its
Guarantee of the Securities, (c) with respect to the Issuer, any Indebtedness of
the Issuer that is pari passu in right of payment to the Securities and (d) with
respect to any other Guarantor, Indebtedness which ranks pari passu in right of
payment to the Guarantee of such Guarantor.
"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.
"Payment Default" means any default in payment (whether at Stated
Maturity, upon scheduled installment, by acceleration or otherwise) of principal
or premium, if any, or interest on Designated Senior Indebtedness.
"Person" means any individual, corporation, partnership, joint
venture, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
8
"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.
"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.
"Representative" means (i) with respect to the Credit Facility, the
Agent Bank and (ii) with respect to any other Senior Indebtedness, the indenture
trustee or other trustee, agent or representative for the holders of such Senior
Indebtedness.
"Responsible Officer" when used with respect to the Trustee, means any
officer assigned to and working in the corporate trust department of the
Trustee, or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other
9
officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"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.
"Senior Indebtedness" means the principal of, premium, if any, and
interest (including interest, to the extent allowable, accruing after the filing
of a petition initiating any proceeding under any state, federal or foreign
bankruptcy law) on any Indebtedness of the Issuer or a Guarantor (other than as
otherwise provided in this definition), whether outstanding on the date of the
Indenture or thereafter created, incurred or assumed, and whether at any time
owing, actually or contingent, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of Securities. Notwithstanding the foregoing, "Senior
Indebtedness" shall not include:
(1) Indebtedness evidenced by the Securities or the Guarantees,
(2) Indebtedness which when incurred and without respect to any
election under Section 1111(b) of Xxxxx 00 Xxxxxx Xxxxxx Code, is without
recourse to the Issuer,
(4) Indebtedness which is represented by Capital Stock,
(5) any liability for foreign, federal, state, local or other taxes
owed or owing by the Issuer or a Guarantor to the extent such liability
constitutes Indebtedness,
(6) Indebtedness of the Issuer to a Subsidiary or any other Affiliate
of the Issuer or a Guarantor or any of such Affiliate's Subsidiaries,
(7) to the extent it might constitute Indebtedness, amounts owing for
goods, materials or services purchased in the ordinary course of business
or consisting of trade accounts payable owed or owing by the Issuer or a
Guarantor, and amounts owed by the Issuer for compensation to employees or
services rendered to the Issuer or a Guarantor,
(8) that portion of any Indebtedness which at the time of issuance is
issued in violation of the Indenture, and
(9) Indebtedness evidenced by any guarantee of any Subordinated
Indebtedness or Pari Passu Indebtedness.
10
"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.
"Subordinated Indebtedness" means Indebtedness of the Issuer or a
Guarantor subordinated in right of Securities or a Guarantee, as the case may
be.
"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 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."
11
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
constitute 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;
(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
12
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 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.
13
(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
(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.
14
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.
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 and to the extent provided in Article Four the holders
of Senior Indebtedness, 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.
15
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 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.
WILMINGTON TRUST COMPANY, as Trustee
By _____________________________________
Authorized Signer
16
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);
(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;
17
(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;
(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 Four, 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.
Except as modified in an Officers' Certificate or supplemental
indenture establishing a series of Securities, the Securities shall be
subordinated in right of payment to Senior Indebtedness as provided in Article
Four. 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
18
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, 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;
(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'
19
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.
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.
20
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 principal amount, upon surrender 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 by a commercial bank reasonably acceptable to the Trustee or by a
member of a national securities exchange.
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
21
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 protected 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.
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
22
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 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.
23
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 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 normal
procedures unless directed by a Issuer Order.
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 year of twelve 30-day months.
ARTICLE FOUR
SUBORDINATION OF SECURITIES
SECTION 4.01. Securities Subordinate to Senior Indebtedness.
---------------------------------------------
The Issuer covenants and agrees, and each Holder of a Security, by its
acceptance thereof, likewise covenants and agrees, for the benefit of the
holders, from time to time, of Senior Indebtedness that, to the extent and in
the manner hereinafter set forth in this Article, the Indebtedness represented
by the Securities and the payment of the principal of (and premium, if any) and
interest on each and all of the Securities are hereby expressly made subordinate
and subject in right of payment as provided in this Article to the prior payment
in full in cash or cash equivalents of all Senior Indebtedness; provided,
however, that the Securities, the Indebtedness represented thereby and the
payment of the principal of (and premium, if any) and interest on the Securities
in all respects shall rank equally with, or prior to, all existing and future
subordinated indebtedness (including, without limitation, Indebtedness) of the
Issuer that is subordinated to Senior Indebtedness.
SECTION 4.02. Payment over of Proceeds upon Dissolution, etc.
----------------------------------------------
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relating to Centennial, the Issuer or any
Guarantor or to their assets, or (b) any liquidation, dissolution or other
winding-up of Centennial, the Issuer or any Guarantor, whether voluntary or
involuntary and whether or not involving insolvency or bankruptcy, or (c) any
24
assignment for the benefit of creditors or other marshalling of assets or
liabilities of Centennial, the Issuer or any Guarantor (except in connection
with the consolidation or merger of Centennial, the Issuer or any Guarantor or
their liquidation or dissolution following the conveyance, transfer or lease of
all of the properties and assets of the Parent Guarantor substantially as an
entirety upon the terms and conditions described under Article Nine), then and
in any event:
(1) the holders of Senior Indebtedness will be entitled to
receive payment in full in cash or cash equivalents of all Senior
Indebtedness, or provision shall be made for such payment in full,
before the Holders of Securities will be entitled to receive any
payment or distribution of any kind or character (other than any
payment or distribution in the form of equity securities or
subordinated securities of Centennial, the Issuer or any Guarantor or
any successor obligor that, in the case of any such subordinated
securities, are subordinated in right of payment to all Senior
Indebtedness that may at the time be outstanding to at least the same
extent as the Securities are so subordinated as provided in this
Indenture (such equity securities or subordinated securities
hereinafter being "Permitted Junior Securities") and any payment made
pursuant to Article Five from monies or U.S. Government Obligations
previously deposited with the Trustee) on account of principal of, or
premium, if any, or interest on the Securities;
(2) any payment or distribution of assets of Centennial, the
Issuer or any Guarantor of any kind or character, whether in cash,
property or securities (other than a payment or distribution in the
form of Permitted Junior Securities and any payments made pursuant to
Article Five from monies or U.S. Government Obligations previously
deposited with the Trustee), by set-off or otherwise, to which the
Holders of the Securities or the Trustee would be entitled but for the
provisions of this Indenture shall be paid by the liquidating trustee
or agent or other Person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of Senior Indebtedness or their representative
or representatives ratably according to the aggregate amounts remaining
unpaid on account of the Senior Indebtedness to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders
of such Senior Indebtedness.
The consolidation of Centennial, the Issuer or any Guarantor
with, or the merger of Centennial, the Issuer or any Guarantor into, another
Person or the liquidation or dissolution of Centennial, the Issuer or any
Guarantor following the conveyance, transfer or lease of all of the properties
and assets of the Parent Guarantor substantially as an entirety to another
Person upon the terms and conditions set forth in Article Nine shall not be
deemed a dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshalling of assets and liabilities of Centennial,
the Issuer or any Guarantor for the purposes of this Section if the Person
formed by such consolidation or into which Centennial, the Issuer or any
Guarantor is merged or the Person which acquires by conveyance, transfer or
lease such properties and assets substantially as an entirety, as the case may
be, shall, as a part of such consolidation, merger, conveyance, transfer or
lease, comply with the conditions set forth in Article Nine.
25
SECTION 4.03. Suspension of Payment When Designated Senior Indebtedness in
------------------------------------------------------------
Default.
-------
(a) Unless Section 4.02 shall be applicable, upon the occurrence of a
Payment Default, no payment or distribution of any assets of Centennial, the
Issuer or any Guarantor of any kind or character, whether in cash, property or
securities (other than Permitted Junior Securities and payments made pursuant to
Article Five from monies or U.S. Government Obligations previously deposited
with the Trustee), may be made by or on behalf of Centennial, the Issuer or any
Guarantor on account of principal of, premium, if any, or interest on the
Securities or on account of the purchase, redemption or other acquisition of
Securities until such Payment Default shall have been cured or waived in writing
from the Agent Bank or any other representative of a holder of Designated Senior
Indebtedness or shall have ceased to exist or such Designated Senior
Indebtedness shall have been discharged or paid in full in cash or cash
equivalents, after which Centennial, the Issuer or any Guarantor shall resume
making any and all required payments in respect of the Securities, including any
missed payments.
(b) Unless Section 4.02 shall be applicable, upon (1) the occurrence
of a Non-Payment Default and (2) receipt by the Trustee of written notice
thereof from the Agent Bank or any other representative of a holder of
Designated Senior Indebtedness, then no payment or distribution of any assets of
Centennial, the Issuer or any Guarantor of any kind or character, whether in
cash, property or securities (other than Permitted Junior Securities and
payments made pursuant to Article Five from monies or U.S. Government
Obligations previously deposited with the Trustee), may be made by or on behalf
of the Issuer on account of principal of, premium, if any, or interest on the
Securities or on account of the purchase, redemption or other acquisition of
Securities for a period (a "Payment Blockage Period") commencing on the date of
receipt by the Trustee of written notice from the Agent Bank or such other
representative of the holders of Designated Senior Indebtedness in respect of
which the Non-Payment Default exists and shall end on the earliest of (i) 179
days thereafter (provided that any Designated Senior Indebtedness as to which
notice was given shall not theretofore have been accelerated, in which case the
provisions of paragraph (a) shall apply), (ii) the date on which such Non-
Payment Default is cured, waived or ceases to exist or such Designated Senior
Indebtedness is discharged or paid in full in cash or cash equivalents or (iii)
the date on which such Payment Blockage Period shall have been terminated by
written notice to the Trustee or the Issuer from the Agent Bank or such other
representative initiating such Payment Blockage Period, after which the Issuer
will resume making any and all required payments in respect of the Securities,
including any missed payments. In any event, not more than one Payment Blockage
Period may be commenced during any period of 365 consecutive days, and there
must be at least 186 consecutive days in every 365 day period during which there
is no Payment Blockage Period. No event of default that existed or was
continuing on the date of the commencement of any Payment Blockage Period will
be, or can be made, the basis for the commencement of a subsequent Payment
Blockage Period, unless such default has been cured or waived for a period of
not less than 90 consecutive days subsequent to the commencement of such initial
Payment Blockage Period.
In the event that, notwithstanding the foregoing and the provisions of
Section 4.02, any payment or distribution shall be made to the Trustee which is
prohibited by the foregoing provisions of this Section and the provisions of
Section 4.02, then and in such event
26
such payment shall be paid over and delivered forthwith by the Trustee to the
Agent Bank and any other representative of holders of Designated Senior
Indebtedness, as their interests may appear, for application to Designated
Senior Indebtedness.
SECTION 4.04. Payment Permitted If No Default.
-------------------------------
Nothing contained in this Article or elsewhere in this
Indenture or in any of the Securities shall prevent Centennial, the Issuer or
any Guarantor, at any time except during the pendency of any case, proceeding,
dissolution, liquidation or other winding up, assignment for the benefit of
creditors or other marshalling of assets and liabilities of Centennial, the
Issuer or any Guarantor referred to in Section 4.02 or under the conditions
described in Section 4.03, from making payments at any time of principal of, and
premium, if any, or interest on the Securities.
SECTION 4.05. Subrogation to Rights of Holders of Senior Indebtedness.
-------------------------------------------------------
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities shall be subrogated (equally and ratably with the
holders of all Pari Passu Indebtedness of Centennial, the Issuer or any
Guarantor) to the rights of the holders of such Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable to the
Senior Indebtedness to the extent that distributions otherwise payable to the
holders of the Securities have been applied to the payment of Senior
Indebtedness. For purposes of such subrogation, no payments or distributions to
the holders of Senior Indebtedness of any cash, property or securities to which
the Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Indebtedness by Holders of the Securities
or on their behalf or by the Trustee, shall, as among Centennial, the Issuer or
any Guarantor, its creditors other than holders of Senior Indebtedness, and the
Holders of the Securities, be deemed to be a payment or distribution by
Centennial, the Issuer or any Guarantor to or on account of the Senior
Indebtedness; it being understood that the provisions of this Article are
intended solely for the purpose of determining the relative rights of the
Holders of Securities, on the one hand, and the holders of Senior Indebtedness,
on the other hand.
SECTION 4.06. Provisions Solely to Define Relative Rights.
-------------------------------------------
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders on the one hand and
the holders of Senior Indebtedness on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is intended to or
shall (a) impair, as between the Issuer and the Holders, the obligation of the
Issuer, which is absolute and unconditional, to pay to the Holders the principal
of, and premium, if any, and interest on the Securities as and when the same
shall become due and payable in accordance with their terms; or (b) affect the
relative rights against the Issuer of the Holders and creditors of the Issuer
other than the holders of Senior Indebtedness; or (c) prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
of the holders of Senior Indebtedness.
27
SECTION 4.07. Trustee to Effectuate Subordination.
-----------------------------------
Each Holder of a Security by its acceptance thereof authorizes
and directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 4.08. No Waiver of Subordination Provisions.
--------------------------------------
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Issuer or by any act or failure to act, in good faith, by any such holder,
or by any non-compliance by the Issuer with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
(b) Without in any way limiting the generality of paragraph
(a) of this Section, the holders of Senior Indebtedness may, at any time and
from time to time, without the consent of or notice to the Trustee or the
Holders, without incurring responsibility to the Holders and without impairing
or releasing the subordination provided in this Article or the obligations
hereunder of the Holders to the holders of Senior Indebtedness, do any one or
more of the following: (1) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding; (2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (3) release any
Person liable in any manner for the collection of Senior Indebtedness; and (4)
exercise or refrain from exercising any rights against the Issuer and any other
Person.
SECTION 4.09. Distribution or Notice to Representative.
----------------------------------------
Whenever a distribution is to be made or a notice given to
holders of Senior Indebtedness, the distribution may be made and the notice
given to their Representative.
Upon any payment or distribution of assets of Centennial, the
Issuer or any Guarantor referred to in this Article Four, the Trustee and the
Holders shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of the Senior Indebtedness and
other Indebtedness of Centennial, the Issuer or any Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other acts pertinent thereto or to this Article Four.
28
SECTION 4.10. Notice to Trustee.
-----------------
(a) The Issuer shall give prompt written notice to the Trustee
of any fact known to the Issuer which would prohibit the making of any payment
to or by the Trustee in respect of the Securities. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities, unless and until the Trustee shall have received written notice
thereof from the Issuer, the Agent Bank or a holder of Senior Indebtedness or
from any trustee, fiduciary or agent therefor; and, prior to the receipt of any
such written notice, the Trustee, subject to Sections 315(a) through 315(d) of
the Trust Indenture Act, shall be entitled in all respects to assume that no
such facts exist; provided, however, that, if the Trustee shall not have
received the notice provided for in this Section at least three Business Days
prior to the date upon which by the terms hereof any money may become payable
for any purpose (including, without limitation, the payment of the principal of,
and premium, if any, or interest on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the purpose for which
such money was received and shall not be affected by any notice to the contrary
which may be received by it within three Business Days prior to such date.
(b) Subject to Sections 315(a) through 315(d) of the Trust
Indenture Act, the Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing itself to be a holder of Senior
Indebtedness (or a trustee, fiduciary or agent therefor) to establish that such
notice has been given by a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor). In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article and, if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
SECTION 4.11. Reliance on Judicial Order or Certificate of Liquidating Agent.
--------------------------------------------------------------
Upon any payment or distribution of assets of Centennial, the
Issuer or any Guarantor referred to in this Article, the Trustee, subject to
Sections 315(a) through 315(d) of the Trust Indenture Act, and the Holders of
the Securities shall be entitled to rely upon any order or decree entered by any
court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, Custodian, assignee for the benefit of creditors,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other indebtedness of Centennial, the Issuer or any
Guarantor, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or
29
to this Article; provided that such court, trustee, receiver, Custodian,
assignee, agent or other Person has been apprized of, or the order, decree or
certificate makes reference to, the provisions of this Article.
SECTION 4.12. Rights of Trustee as a Holder of Senior Indebtedness;
-----------------------------------------------------
Preservation of Trustee's Rights.
--------------------------------
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder.
SECTION 4.13. Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Issuer and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; provided,
however, that Section 4.12 shall not apply to the Issuer or any Affiliate of the
Issuer if it or such Affiliate acts as Paying Agent.
SECTION 4.14. No Suspension of Remedies.
-------------------------
Nothing contained in this Article shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Article Six or to pursue any rights or
remedies hereunder or under applicable law, except as provided in Article Six.
SECTION 4.15. Trust Moneys Not Subordinated.
-----------------------------
Notwithstanding anything contained herein to the contrary,
payments from cash or the proceeds of Government Securities held in trust under
Article Five hereof by the Trustee (or other qualifying trustee) and which were
deposited in accordance with the terms of Article Four hereof and not in
violation of Section 4.03 hereof for the payment of principal of (and premium,
if any) and interest on the Securities shall not be subordinated to the prior
payment of any Senior Indebtedness or subject to the restrictions set forth in
this Article Four, and none of the Holders shall be obligated to pay over any
such amount to the Issuer or any holder of Senior Indebtedness or any other
creditor of the Issuer.
SECTION 4.16. Trustee Not Fiduciary for Holders of Senior Indebtedness.
--------------------------------------------------------
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness and shall not be liable to any such holders
if the Trustee shall mistakenly, in the absence of gross negligence or wilful
misconduct, pay over or distribute to Holders of Securities or to the Issuer or
to any other person cash, property or securities to which any holders
30
of Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
With respect to the holders of Senior Indebtedness, the Trustee undertakes to
perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article and no implied covenants or obligations
with respect to holders of Senior Indebtedness shall be read into this Indenture
against the Trustee.
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 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;
31
(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 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 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 Officer's 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
32
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 and eleven
months after the date upon which the principal 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, upon the request of 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. Reinstatement.
-------------
If the Trustee is unable to apply any money or U.S. Government
Obligations in accordance with Sections 5.01 or 5.02, as the case may be, by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Issuer's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Sections 5.01 or 5.02, as the case may be, until such time as the
Trustee is permitted to apply all such money or U.S. Government Obligations in
accordance with Sections 5.01 or 5.02, as the case may be; provided that, if the
Issuer has made payment of principal of, or interest on any Securities because
of the reinstatement of its obligations, the Issuer shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the money
or U.S. Government Obligations held by the Trustee.
33
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 (whether or not such default shall be
by reason of the operation of the provisions of Article Four); or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity (whether or not
such default shall be by reason of the operation of the provisions of
Article Four); 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 (whether or not such default shall be by reason of the
operation of the provisions of Article Four); 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 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
34
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.
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; provided, however,
-------- -------
that payment of principal of (and premium, if any) and interest on the
Securities of such series shall remain subordinated to the extent provided in
Article Four.
35
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.
SECTION 6.03. 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
36
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 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,
37
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.
------------------------------
Subject to the provisions of Article Four, 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 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
38
(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
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in 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.
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 (subject to the provisions of Article Four) 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.
39
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
--------
(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.
-----------------------
Subject to Section 6.02, 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
40
(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, 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).
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,
41
(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 man would exercise or use under the circumstances in the
conduct of his 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;
(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 adequate
indemnity 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.
42
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 rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document 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, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel 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 reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
43
(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;
(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 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; and
(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.
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.
44
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.
SECTION 7.07. Compensation and Reimbursement.
------------------------------
The Issuer and Guarantors agree (1) to pay to the Trustee from time to
time reasonable compensation 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 for, and to hold it harmless against, any
loss, liability or expense 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
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.
If the Trustee incurs expenses or renders services after the
occurrence of an Event of Default specified in clause (5) or (6) of Section
6.01, the expenses and the compensation for the services will be intended to
constitute expenses of administration under Bankruptcy Law.
The provisions of this Section 7.07 shall survive the resignation or
removal of the Trustee and the termination of this Indenture.
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
45
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.
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 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 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
(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
46
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.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the 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.
(f) 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, 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
47
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 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
48
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 Against Issuer.
------------------------------------------------
(a) Subject to subsection (b) of this Section, if the Trustee shall
be or shall become a creditor, directly or indirectly, secured or unsecured, of
the Issuer within three months prior to a default, as defined in subsection (c)
of this Section, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the
Securities and the holders of other indenture securities, as defined in
subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such three-month period and
valid as against the Issuer and its other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in paragraph (2) of this subsection, or from the exercise of
any right of set-off which the Trustee could have exercised if a petition
in bankruptcy had been filed by or against the Issuer upon the date of
such default; and
(2) all property received by the Trustee in respect of any
claims as such creditor, either as security therefor, or in satisfaction
or composition thereof, or otherwise, after the beginning of such three-
month period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Issuer and
its other creditors, in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any Person (other than the Issuer) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim by
the Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Issuer in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such
three-month period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall
sustain the burden of proving that at the time such property was so
received the Trustee had no reasonable cause to believe that a default,
as defined in subsection (c) of this Section, would occur within three
months; or
49
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim
as provided in paragraph (B) or (C), as the case may be, to the extent of
the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three-month period for property held as
security at the time of such substitution shall, to the extent of the fair value
of the property released, have the same status as the property released, and, to
the extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Issuer in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Issuer of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims filed
against the Issuer in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
but after crediting thereon receipts on account of the indebtedness represented
by their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, whether such distribution is made in cash, securities or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceeding for reorganization is pending shall have jurisdiction
(i) to apportion among the Trustee, the Holders and the holders of other
indenture securities, in accordance with the provisions of this paragraph, the
funds and property held in such special account and proceeds thereof, or (ii) in
lieu of such apportionment, in whole or in part, to give to the provisions of
this paragraph due consideration in determining the fairness of the
distributions to be made to the Trustee and the Holders and the holders of other
indenture securities with respect to their respective claims, in which event it
shall not be necessary to liquidate or to appraise the value of any securities
or other property held in such special account or as security for any such
claim, or to make a specific allocation of such distributions as between the
secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning
of such three-month period shall be subject to the provisions of this subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to
50
the beginning of such three-month period, it shall be subject to the provisions
of this subsection if and only if the following conditions exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three-month
period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection
(a) of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders at
the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered
or premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Issuer; and
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper, as defined in
subsection (c) of this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in
full of the principal of or interest on any of the Securities or upon
the other indenture securities when and as such principal or interest
becomes due and payable;
51
(2) the term "other indenture securities" means securities upon which
the Issuer is an obligor outstanding under any other indenture (i) under
which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section and (iii) under
which a default exists at the time of the apportionment of the funds and
property held in such special account;
(3) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Issuer for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Issuer arising from the making, drawing, negotiating
or incurring of the draft, xxxx of exchange, acceptance or obligation;
(5) the term "Issuer" means any obligor upon the Securities at the
time in question; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act or
Title 11 of the United States Code.
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
52
(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 destroy any list furnished to it as provided in
Section 8.01 upon receipt of a new list so furnished.
(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) 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
53
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.
(c) 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).
SECTION 8.03. Reports by Trustee.
------------------
(a) Within 60 days after the first Reporting Date occurring
subsequent to the initial issuance of Securities hereunder and within 60 days
after each Reporting Date occurring thereafter, the Trustee shall transmit by
mail to the Holders, as hereinafter provided, a brief report (but in no event
shall such report be transmitted more than twelve months after the date of the
initial issuance of the Securities in the case of the first such report and at
stated intervals of more than twelve months in the case of each subsequent
report) dated as of such Reporting Date with respect to any of the following
events which may have occurred during the twelve months preceding the date of
such report (but if no such event has occurred within such period, no report
need be transmitted):
(1) any change to its eligibility under Section 7.09 and its
qualifications under Section 7.08, or in lieu thereof, if to the best of
its knowledge it has continued to be eligible and qualified under said
Sections, a written statement to such effect;
(2) the creation of or any material change to a relationship
specified in Section 310(b)(1) through Section 310(b)(10) of the Trust
Indenture Act;
(3) 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) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Securities, on any property or funds held or collected
by it as Trustee, except that the Trustee shall not be required (but may
elect) to report such advances if such advances so remaining unpaid
aggregate not more than 1/2 of 1% of the principal amount of the Securities
Outstanding for which it is Trustee on the date of such report;
(4) any change to the amount, interest rate and maturity date of all
other indebtedness owing by the Issuer (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 7.13(b)(2), (3),
(4) or (6);
54
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee in accordance
with Section 7.02.
(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
55
file with the Trustee and the Commission, in accordance with rules and
regulations 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.
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 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)
56
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
(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
57
(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 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
58
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 be entitled to receive,
and shall be fully protected in relying upon, 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 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.
59
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 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
60
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;
(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,
61
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 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.
62
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.
------------------
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.
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.
63
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 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 30 nor more than 60
days prior to the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
64
(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 shall have received notice that
there exists a default specified in the first paragraph of Section 4.03 or 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 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.
65
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 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 "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series
66
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.
-----------------------------------------
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
67
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.
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
68
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.
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
69
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 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 provi-
70
sions 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
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.
71
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 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 Guarantor") 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
72
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.
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
73
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.
-------------------------
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.
WILMINGTON TRUST COMPANY hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
74
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:
CENTENNIAL PUERTO RICO HOLDING
CORP. I
By: _____________________________
Name:
Title:
75
CENTENNIAL PUERTO RICO HOLDING
CORP. II
By: _____________________________
Name:
Title:
WILMINGTON TRUST COMPANY, as
Trustee
By: _____________________________
Name:
Title:
