EXHIBIT 4.8
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CENTENNIAL COMMUNICATIONS CORP.,
CENTENNIAL CELLULAR OPERATING CO. LLC.
-and-
CENTENNIAL PUERTO RICO OPERATIONS CORP.,
as Issuers,
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
--------------------------
INDENTURE
Dated as of February 9, 2004
$325,000,000 8-1/8% Senior Notes due 2014
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions........................................................................................ 1
SECTION 1.2. Incorporation by Reference of TIA.................................................................. 26
SECTION 1.3. Rules of Construction.............................................................................. 26
ARTICLE II
THE SECURITIES
SECTION 2.1. Form and Dating.................................................................................... 27
SECTION 2.2. Execution and Authentication....................................................................... 28
SECTION 2.3. Registrar and Paying Agent......................................................................... 29
SECTION 2.4. Paying Agent to Hold Assets in Trust............................................................... 29
SECTION 2.5. Securityholder Lists............................................................................... 30
SECTION 2.6. Transfer and Exchange.............................................................................. 30
SECTION 2.7. Replacement Securities............................................................................. 43
SECTION 2.8. Outstanding Securities............................................................................. 43
SECTION 2.9. Treasury Securities................................................................................ 44
SECTION 2.10. Temporary Securities.............................................................................. 44
SECTION 2.11. Cancellation...................................................................................... 44
SECTION 2.12. Defaulted Interest................................................................................ 45
SECTION 2.13. CUSIP Numbers..................................................................................... 46
ARTICLE III
REDEMPTION
SECTION 3.1. Rights of Redemption............................................................................... 46
SECTION 3.2. Notices to Trustee................................................................................. 47
SECTION 3.3. Selection of Securities to Be Redeemed............................................................. 47
SECTION 3.4. Notice of Redemption............................................................................... 48
SECTION 3.5. Effect of Notice of Redemption..................................................................... 49
SECTION 3.6. Deposit of Redemption Price........................................................................ 49
SECTION 3.7. Securities Redeemed in Part........................................................................ 49
ARTICLE IV
COVENANTS
SECTION 4.1. Payment of Securities.............................................................................. 50
SECTION 4.2. Maintenance of Office or Agency.................................................................... 50
SECTION 4.3. Limitation on Restricted Payments.................................................................. 50
SECTION 4.4. Corporate and Other Existence...................................................................... 53
SECTION 4.5. Payment of Taxes and Other Claims.................................................................. 53
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SECTION 4.6. Maintenance of Properties and Insurance............................................................ 54
SECTION 4.7. Compliance Certificate; Notice of Default.......................................................... 54
SECTION 4.8. Provision of Financial Statements.................................................................. 55
SECTION 4.9. Limitation on Priority Indebtedness and Pari Passu Indebtedness.................................... 55
SECTION 4.10. Limitation on Transactions with Related Persons................................................... 56
SECTION 4.11. Limitation on Incurrence of Additional Indebtedness............................................... 57
SECTION 4.12. Limitation on Restricting Subsidiary Dividends.................................................... 60
SECTION 4.13. Limitation on Liens............................................................................... 61
SECTION 4.14. Limitation on Asset Sales and Sales of Subsidiary Stock........................................... 61
SECTION 4.15. Waiver of Stay, Extension or Usury Laws........................................................... 66
SECTION 4.16. [INTENTIONALLY OMITTED]........................................................................... 66
SECTION 4.17. Limitation on Unrestricted Subsidiaries........................................................... 66
SECTION 4.18. Limitation on Lines of Business................................................................... 67
SECTION 4.19. Limitation on Issuances of Guarantees; Release of Guarantee and Issuer Obligations................ 68
SECTION 4.20. Waiver of Compliance with Certain Covenants....................................................... 71
SECTION 4.21 Termination of Certain Covenants.................................................................. 71
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1. Limitation on Merger, Sale or Consolidation........................................................ 69
SECTION 5.2. Successor Corporation Substituted.................................................................. 71
SECTION 5.3. Release of Centennial PR........................................................................... 71
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1. Events of Default.................................................................................. 71
SECTION 6.2. Acceleration of Maturity Date; Rescission and Annulment............................................ 73
SECTION 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee.................................... 74
SECTION 6.4. Trustee May File Proofs of Claim................................................................... 75
SECTION 6.5. Trustee May Enforce Claims Without Possession of Securities........................................ 76
SECTION 6.6. Priorities......................................................................................... 76
SECTION 6.7. Limitation on Suits................................................................................ 76
SECTION 6.8. Unconditional Right of Holders to Receive Principal, Premium, Interest and Additional Interest..... 77
SECTION 6.9. Rights and Remedies Cumulative..................................................................... 77
SECTION 6.10. Delay or Omission Not Waiver...................................................................... 77
SECTION 6.11. Control by Holders................................................................................ 77
SECTION 6.12. Waiver of Past Default............................................................................ 78
SECTION 6.13. Undertaking for Costs............................................................................. 78
SECTION 6.14. Restoration of Rights and Remedies................................................................ 78
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ARTICLE VII
TRUSTEE
SECTION 7.1. Duties of Trustee.................................................................................. 79
SECTION 7.2. Rights of Trustee.................................................................................. 80
SECTION 7.3. Individual Rights of Trustee....................................................................... 81
SECTION 7.4. Trustee's Disclaimer............................................................................... 81
SECTION 7.5. Notice of Default.................................................................................. 81
SECTION 7.6. Reports by Trustee to Holders...................................................................... 81
SECTION 7.7. Compensation and Indemnity......................................................................... 81
SECTION 7.8. Replacement of Trustee............................................................................. 82
SECTION 7.9. Successor Trustee by Merger, Etc................................................................... 83
SECTION 7.10. Eligibility; Disqualification..................................................................... 83
SECTION 7.11. Preferential Collection of Claims Against the Issuers............................................. 83
SECTION 7.12. Wire Transfers and Investments.................................................................... 83
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1. Option to Effect Legal Defeasance or Covenant Defeasance........................................... 84
SECTION 8.2. Legal Defeasance and Discharge..................................................................... 84
SECTION 8.3. Covenant Defeasance................................................................................ 85
SECTION 8.4. Conditions to Legal or Covenant Defeasance......................................................... 85
SECTION 8.5. Deposited U.S. Legal Tender and Government Securities to be Held in Trust; Other Miscellaneous
Provisions....................................................................................... 87
SECTION 8.6. Repayment to the Issuers........................................................................... 87
SECTION 8.7. Reinstatement...................................................................................... 87
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1. Supplemental Indentures Without Consent of Holders................................................. 88
SECTION 9.2. Amendments, Supplemental Indentures and Waivers with Consent of Holders............................ 89
SECTION 9.3. Compliance with TIA................................................................................ 90
SECTION 9.4. Revocation and Effect of Consents.................................................................. 90
SECTION 9.5. Notation on or Exchange of Securities.............................................................. 91
SECTION 9.6. Trustee to Sign Amendments, Etc.................................................................... 91
ARTICLE X
GUARANTEE
SECTION 10.1. Future Guarantees................................................................................. 91
SECTION 10.2. Supplemental Indenture............................................................................ 97
SECTION 10.3. Limitation of Guarantors' Liability............................................................... 93
SECTION 10.4. Subrogation....................................................................................... 93
SECTION 10.5. Benefits Acknowledged............................................................................. 94
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SECTION 10.6. Contribution...................................................................................... 94
ARTICLE XI
RIGHT TO REQUIRE REPURCHASE
SECTION 11.1. Repurchase of Securities at Option of the Holder Upon a Change of Control......................... 94
ARTICLE XII
MISCELLANEOUS
SECTION 12.1. TIA Controls...................................................................................... 96
SECTION 12.2. Notices........................................................................................... 96
SECTION 12.3. Communications by Holders with Other Holders...................................................... 97
SECTION 12.4. Certificate and Opinion as to Conditions Precedent................................................ 97
SECTION 12.5. Statements Required in Certificate or Opinion..................................................... 97
SECTION 12.6. Rules by Trustee, Paying Agent, Registrar......................................................... 98
SECTION 12.7. Legal Holidays.................................................................................... 98
SECTION 12.8. Governing Law..................................................................................... 98
SECTION 12.9. No Adverse Interpretation of Other Agreements..................................................... 99
SECTION 12.10. No Recourse Against Others....................................................................... 99
SECTION 12.11. Successors....................................................................................... 99
SECTION 12.12. Duplicate Originals.............................................................................. 99
SECTION 12.13. Severability..................................................................................... 99
SECTION 12.14. Table of Contents, Headings, Etc................................................................. 99
SECTION 12.15. Qualification of Indenture....................................................................... 99
SECTION 12.16. Registration Rights.............................................................................. 100
ARTICLE XIII
SATISFACTION AND DISCHARGE
SECTION 13.1. Satisfaction and Discharge of Indenture........................................................... 100
SECTION 13.2. Application of Trust Money........................................................................ 101
EXHIBITS
EXHIBIT A-1. Form of 144A Global Security................................................................... X-0-0
XXXXXXX X-0. Form of Regulation S Temporary Global Security................................................. A-2-1
EXHIBIT B. Form of Certificate of Transfer................................................................. B-1
EXHIBIT C. Form of Certificate of Exchange................................................................. C-1
EXHIBIT D. Form of Certificate From Acquiring Institutional Accredited Investor............................ D-1
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CROSS-REFERENCE TABLE
This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of the Indenture.
TIA Section Indenture Section
310 (a)(1).................................................................... 7.10
(a)(2).................................................................... 7.10
(b)....................................................................... 7.10
311 (a)....................................................................... 7.11
(b)....................................................................... 7.11
312 (b)....................................................................... 12.3
(c)....................................................................... 12.3
313 (a)....................................................................... 7.6
(b)....................................................................... 7.6
(c)....................................................................... 7.6
314 (a)....................................................................... 4.7
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INDENTURE, dated as of February 9, 2004, by and among
Centennial Communications Corp., a Delaware corporation ("Centennial"),
Centennial Cellular Operating Co. LLC, a Delaware limited liability company and
wholly-owned subsidiary of Centennial (the "Company"), Centennial Puerto Rico
Operations Corp., a Delaware corporation and wholly-owned subsidiary of
Centennial ("Centennial PR" and, together with the Company and Centennial, the
"Issuers"), and U.S. Bank National Association (the "Trustee").
Each party hereto agrees as follows for the benefit of each
other party and for the equal and ratable benefit of the Holders of the Issuers'
8-1/8% Senior Notes due 2014 (the "Securities") the following:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
"144A Global Security" means a global Security substantially
in the form of Exhibit A-1 hereto bearing the Global Security Legend and the
Private Placement Legend and deposited with or on behalf of, and registered in
the name of, the Depositary or its nominee that shall be issued in a
denomination equal to the outstanding principal amount at maturity of the
Securities sold in reliance on Rule 144A.
"2013 Senior Notes" means the 10-1/8% Senior Notes due 2013
issued pursuant to an indenture dated June 20, 2003, among the Company and
Centennial, as co-issuers, Centennial PR, as an initial guarantor, and U.S. Bank
National Association, as trustee.
"Acceleration Notice" shall have the meaning specified in
Section 6.2.
"Acquired Indebtedness" means Indebtedness of a person (i)
existing at the time such person becomes a Restricted Subsidiary or (ii) assumed
in connection with the acquisition of assets from such Person, in each case,
other than Indebtedness incurred in connection with, or in contemplation of,
such Person becoming a Restricted Subsidiary or such acquisition, as the case
may be. Acquired Indebtedness shall be deemed to be incurred on the date of the
related acquisition of assets from any Person or the date the Acquired Person
becomes a Restricted Subsidiary, as the case may be.
"Acquired Person" shall have the meaning as set forth in the
definition of "Permitted Investment."
"Additional Interest" means the additional amounts, if any,
payable by the Issuers in the event of a Registration Default under, and as
defined in, the Registration Rights Agreement.
"Additional Securities" means an unlimited aggregate principal
amount of Securities (other than the Securities issued on the date hereof)
issued under this Indenture in accordance with Sections 2.2 and 4.11.
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"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 (a) 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, or (b) without limiting the foregoing, the beneficial ownership of
10% or more of the voting power of the voting common equity of such Person (on a
fully diluted basis) or of warrants or other rights to acquire such equity
(whether or not presently exercisable).
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Annual Consolidated EBITDA" on any date means, with respect
to any Person, the Consolidated EBITDA for the Reference Period.
"Applicable Premium" means, with respect to a Security at any
Redemption Date, the excess of (A) the present value at such time of (1) the
Redemption Price of such Security at February 1, 2009 (such Redemption Price
being described in Article III), plus (2) all required interest payments
(excluding accrued but unpaid interest) due on such Security through February 1,
2009, computed using a discount rate equal to the Treasury Rate plus 50 basis
points, over (B) the then outstanding principal amount of such Security.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, Euroclear and Cedel,
in each case to the extent applicable to such transaction and as in effect at
the time of such transfer or transaction.
"Asset Sale" shall have the meaning specified in Section 4.14.
"Asset Sale Offer" shall have the meaning specified in Section
4.14.
"Asset Sale Offer Amount" shall have the meaning specified in
Section 4.14.
"Asset Sale Offer Period" shall have the meaning specified in
Section 4.14.
"Asset Sale Offer Price" shall have the meaning specified in
Section 4.14.
"Asset Sale Purchase Date" shall have the meaning specified in
Section 4.14.
"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.
"Blackstone" means Blackstone Capital Partners III Merchant
Banking Fund L.P. and affiliates of the foregoing that are directly or
indirectly controlling or controlled by Blackstone or under direct or indirect
common control with Blackstone.
2
"Board of Directors" means (i) with respect to a limited
liability company, the board of managers of limited liability company or other
body fulfilling the function of a board of directors of a corporation
(including, in the case of the Company, the Board of Directors of Centennial),
and (ii) with respect to a corporation, the board of directors or any duly
authorized committee of such board of directors.
"Board Resolution" means, with respect to any Person, a duly
adopted resolution of the Board of Directors of such Person.
"Business Day" means a day that is not a Legal Holiday.
"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.
"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 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.
"Cash Equivalents" means (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) in each case maturing within
one year after the date of acquisition, (ii) time deposits and certificates of
deposit and commercial paper issued by the parent corporation of any domestic
commercial bank of recognized standing having capital and surplus in excess of
$500,000,000 and commercial paper issued by other entities rated at least A-2 or
the equivalent thereof by S&P or at least P-2 or the equivalent thereof by
Moody's and in each case maturing within one year after the date of acquisition
and (iii) investments in money market funds substantially all of whose assets
comprise securities of the types described in clauses (i) and (ii) above.
"Centennial" has the meaning set forth in the introductory
paragraph hereof until a successor Person shall have become such pursuant to the
applicable provisions hereof, and thereafter "Centennial" shall mean such
successor Person.
"Centennial PR" has the meaning set forth in the introductory
paragraph hereof until a successor Person shall have become such pursuant to the
applicable provisions hereof, and thereafter "Centennial PR" shall mean such
successor Person.
"Change of Control" means the occurrence of any of the
following events: (i) Centennial or the Company consolidates with or merges with
or into any Person or sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of its assets to
3
any Person, or any Person consolidates with or merges into or with Centennial or
the Company, in any such event pursuant to a transaction in which the
outstanding Voting Stock of Centennial or the Company is converted into or
exchanged for cash, securities or other property, other than any such
transaction where (A) the outstanding Voting Stock of Centennial or the Company
is changed into or exchanged for (x) Voting Stock of the surviving corporation
which is not Disqualified Capital Stock or (y) cash, securities and other
property (other than Capital Stock of the surviving corporation) in an amount
which could be paid by the Company as a Restricted Payment as described under
Section 4.3 (and such amount shall be treated as a Restricted Payment subject to
the provisions in Section 4.3 and (B) immediately after such transaction, no
"person" or "group," other than Permitted Holders, is the beneficial owner (as
such term is used in Rules 13d-3 and 13d-5 promulgated pursuant to the Exchange
Act), directly or indirectly, more than 50% of the total outstanding Voting
Stock of the surviving corporation, (ii) any "person" or "group" (as such terms
are used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether
or not applicable), other than Permitted Holders or any Issuer, is or becomes
the "beneficial owner" (as such term is used in Rules 13d-3 and 13d-5
promulgated pursuant to the Exchange Act), directly or indirectly, of Voting
Stock representing more than 50% of the voting power of the Voting Stock of any
Issuer then outstanding normally entitled to vote in elections of directors, or
(iii) during any period of 12 consecutive months, individuals who at the
beginning of any such 12-month period constituted the Board of Directors of
Centennial or the Company (together with any new directors whose election to
such board or whose nomination for election by the shareholders of Centennial or
the Company was designated by the Permitted Holders or approved by a vote of a
majority of the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute at least a majority
of the Board of Directors of Centennial or the Company then in office, as the
case may be.
"Change of Control Offer" shall have the meaning specified in
Section 11.1.
"Change of Control Offer Period" shall have the meaning
specified in Section 11.1.
"Change of Control Purchase Date" shall have the meaning
specified in Section 11.1.
"Change of Control Purchase Price" shall have the meaning
specified in Section 11.1.
"Clearstream" means Clearstream Banking, societe anonyme,
Luxembourg.
"Closing Price" on any Trading Day with respect to the per
share price of any shares of Capital Stock, of any Person, means the last
reported sale price regular way or, in case no such reported sale takes place on
such day, the average of the reported closing bid and asked prices regular way,
in either case on the New York Stock Exchange or, if such shares of Capital
Stock are not listed or admitted to trading on such exchange, on the principal
national securities exchange on which such shares are listed or admitted to
trading or, if not listed or admitted to trading on any national securities
exchange, on the Nasdaq National Market or, if such shares are not listed or
admitted to trading on any national securities exchange or quoted on Nasdaq
4
National Market but if such Person is a Foreign Company (as defined in Rule
3b-4(b) under the Exchange Act) and the principal securities exchange on which
such shares are listed or admitted to trading is a Designated Offshore
Securities Market (as defined in Rule 902(a) under the Securities Act), the
average of the reported closing bid and asked prices regular way on such
principal exchange, or, if such shares are not listed or admitted to trading on
any national securities exchange or quoted on the Nasdaq National Market and
such Person and principal securities exchange do not meet such requirements, the
average of the closing bid and asked prices in the over-the-counter market as
furnished by any New York Stock Exchange member firm that is selected from time
to time by such Person for that purpose and is reasonably acceptable to the
Trustee.
"Company" has the meaning set forth in the introductory
paragraph hereof until a successor Person shall have become such pursuant to the
applicable provisions hereof, and thereafter "Company" shall mean such successor
Person.
"Company Order" or "Company Request" means a written request
or order signed in the name of the Issuers by, in the case of each Issuer, any
one of its respective Chairman of the Board, its President, its Chief Executive
Officer, its Chief Financial Officer or a Vice President (regardless of Vice
Presidential designation), and any one of its respective Treasurer, or its
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker, having a maturity
comparable to the first Redemption Date of the Securities, that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of a comparable
maturity to the first Redemption Date of the Securities. "Independent Investment
Banker" means one of the Reference Treasury Dealers appointed by the Trustee
after consultation with the Company.
"Comparable Treasury Price" means, with respect to any
Redemption Date, (A) the average of the Reference Treasury Dealer Quotations for
such Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (B) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any Redemption Date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New York
time, on the third business day preceding such Redemption Date.
"Consolidated EBITDA" of any Person means (a), with respect to
any period, the Consolidated Net Income of such Person for such period, plus (b)
the sum, without duplication (and only to the extent such amounts are deducted
from net revenue in determining such Consolidated Net Income), of (i) the
provisions for income taxes for such period for such Person and its consolidated
Restricted Subsidiaries, (ii) depreciation, amortization and other noncash
charges of such Person and its consolidated Restricted Subsidiaries (including
(A) unrealized gains and losses from hedging, foreign currency or commodities
translations and transactions and (B) any noncash compensation expense realized
for grants of performance shares, stock
5
options or other rights to officers, directors and employees), (iii)
Consolidated Interest Expense of such Person for such period, determined, in
each case, on a consolidated basis for such Person and its consolidated
Restricted Subsidiaries in accordance with GAAP, and (iv) monitoring and
management fees actually paid to any Permitted Holder in an amount in any
calendar year not to exceed the greater of (A) $1,000,000 or (B) 1% of Annual
Consolidated EBITDA, plus (c) any fees, expenses or charges related to any
equity offering, Permitted Investment, acquisition or recapitalization or
Indebtedness permitted to be Incurred by this Indenture (in each case, whether
or not successful), less (d) the amount of all cash payments made during such
period by such Person and its Restricted Subsidiaries to the extent such
payments relate to noncash charges that were added back in determining
Consolidated EBITDA for such period or for any prior period.
"Consolidated Interest Expense" of any Person means, for any
period, the aggregate amount (without duplication and determined in each case in
accordance with GAAP) of (a) interest expensed or capitalized, paid, accrued, or
scheduled to be paid or accrued (including, in accordance with the following
sentence, interest attributable to the Capitalized Lease Obligations) of such
Person and its consolidated Restricted Subsidiaries during such period,
including (i) original issue discount and noncash interest payments or accruals
on any Indebtedness, (ii) the interest portion of all deferred payment
obligations, and (iii) all commissions, discounts and other fees and charges
owed with respect to bankers' acceptances and letters of credit financings and
currency and Interest Rate Protection Obligations and Currency Hedging
Agreements and excluding the amortization of deferred financing fees, in each
case to the extent attributable to such period and (b) the amount of cash
dividends accrued or payable by such Person or any of its consolidated
Restricted Subsidiaries in respect of preferred stock (other than by Restricted
Subsidiaries of such Person to such Person or such Person's Restricted
Subsidiaries). For purposes of this definition, (x) interest on a Capitalized
Lease Obligation shall be deemed to accrue at an interest rate reasonably
determined by the Company to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP and (y) interest expense
attributable to any Indebtedness represented by the guaranty by such Person or a
Subsidiary of such Person of an obligation of another Person shall be deemed to
be the interest expense attributable to the Indebtedness guaranteed to the
extent not otherwise included and whether or not paid by such Person or
Subsidiary. When the foregoing definition is used in connection with the Company
and its Restricted Subsidiaries, references to a Person and its Subsidiaries in
the foregoing definition shall be deemed to refer to the Company and its
Restricted Subsidiaries.
"Consolidated Net Income" of any Person, for any period, means
the net income (or loss) of such Person and its consolidated Restricted
Subsidiaries for such period, determined (on a consolidated basis) in accordance
with GAAP, adjusted to exclude (only to the extent included in computing such
net income (or loss) and without duplication) (i) all extraordinary gains or
losses and all gains and losses from the sales or other dispositions of assets
out of the ordinary course of business (net of taxes, fees and expenses relating
to the transaction giving rise thereto) for such period, (ii) the net income, if
positive, of any Person, that is not a Subsidiary in which such Person or any of
its Subsidiaries has an interest (other than a Minority Cellular Investment
Interest), except to the extent of the amount of dividends or distributions
actually paid to such Person or a Subsidiary of such Person, (iii) for purposes
of Section 4.3, the net income, if positive, of any Restricted Subsidiary of
such Person that is not a Guarantor to the extent that the declaration or
payment of dividends or similar distributions is not at the time
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permitted by operation of the terms of its charter or any agreement or
instrument applicable to such Subsidiary except to the extent of the amount of
dividends or distributions actually paid to such Person or a Subsidiary of such
Person, (iv) any gain or loss, net of taxes, realized upon the termination of
any employee benefit plan, (v) any restoration to net income of any contingency
reserve, except to the extent provision for such reserve was made out of income
accrued at any time following the date of this Indenture, (vi) any net gain or
loss arising from the acquisition of any securities or extinguishment of any
Indebtedness of such Person, (vii) the cumulative effect of a change in
accounting principles, (viii) the amount of any nonrecurring charges or income
of the Company or any Restricted Subsidiary (including any one-time costs
incurred in connection with acquisitions after the Senior Subordinated Notes
Issue Date and restructuring charges) certified as non-recurring in an Officers'
Certificate and deducted or included in such period in computing Consolidated
Net Income and (ix) any net income, if positive, resulting from the Issuer's
Minority Cellular Investment Interests. When the foregoing definition is used in
connection with the Company and its Restricted Subsidiaries, references to a
Person and its Subsidiaries in the foregoing definition shall be deemed to refer
to the Company and its Restricted Subsidiaries.
"Covenant Defeasance" shall have the meaning specified in
Section 8.3.
"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.
"Debt to Annual EBITDA Ratio" on any date (the "Transaction
Date") means, with respect to any Person and its Restricted Subsidiaries, the
ratio of (i) consolidated Indebtedness of such Person and its Restricted
Subsidiaries on the Transaction Date (after giving pro forma effect to the
Incurrence of such Indebtedness) (and without duplication of any Indebtedness
that may be the obligation of such Person and/or one or more of its
Subsidiaries) divided by (ii) the aggregate amount of Annual Consolidated EBITDA
of such Person (determined on a pro forma basis after giving effect to all
Investments in and acquisitions or dispositions of any company or any business
or any assets out of the ordinary course of business, whether by merger, stock
purchase or sale or asset purchase or sale, made by such Person and its
Subsidiaries from the beginning of the Reference Period through the Transaction
Date as if such Investment, acquisition or disposition had occurred at the
beginning of such Reference Period); provided that, for purposes of such
computation, in calculating Annual Consolidated EBITDA and consolidated
Indebtedness, (a) the transaction giving rise to the need to calculate the Debt
to Annual EBITDA Ratio will be assumed to have occurred (on a pro forma basis)
on the first day of the Reference Period; (b) the Incurrence of any Indebtedness
during the Reference Period or subsequent thereto and on or prior to the
Transaction Date (and the application of the proceeds therefrom to the extent
used to retire Indebtedness or to acquire businesses) will be assumed to have
occurred (on a pro forma basis) on the first day of such Reference Period; (c)
Consolidated Interest Expense attributable to any Indebtedness (whether existing
or being incurred) bearing a floating interest rate shall be computed as if the
rate in effect on the Transaction Date had been
7
the applicable rate for the entire period; and (d) all members of the
consolidated group of such Person on the Transaction Date that were acquired
during the Reference Period shall be deemed to be members of the consolidated
group of such Person for the entire Reference Period. When the foregoing
definition is used in connection with the Company and its Restricted
Subsidiaries, references to a Person and its Subsidiaries in the foregoing
definition shall be deemed to refer to the Company and its Restricted
Subsidiaries. Any such pro forma calculation may include adjustments for the pro
forma effect of (a) any cost savings accounted for on an annualized basis as a
result of an acquisition by the Company or a Restricted Subsidiary which, in the
good faith judgment of Centennial (as determined by a resolution of the Board of
Directors of Centennial), will be eliminated or realized within one year after
the date of such transaction (provided that any such cost savings are calculated
in accordance with Regulation S-X under the Securities Act (or any successor
regulation)) or (b) any direct quantifiable savings from the conversion of
roaming expense which the Company will obtain within one year of the transaction
in the good faith judgment of the Board of Directors of the Company from the
acquisition of a third party which prior to such acquisition had a contract with
the Company or any Restricted Subsidiary for roaming services.
"Default" means any event or condition that is, or after
notice or passage of time or both would be, an Event of Default.
"Defaulted Interest" shall have the meaning specified in
Section 2.12.
"Definitive Securities" means Securities that are in the form
of Security attached hereto as Exhibit A that do not include the information
called for by footnotes 1 and 3 thereof.
"Definitive Security" means a certificated Security registered
in the name of the Holder thereof and issued in accordance with Section 2.6
hereof, substantially in the form of Exhibit A-1 hereto except that such
Security shall not bear the Global Security Legend and shall not have the
"Schedule of Exchanges of Interests in the Global Security" attached thereto.
"Depositary" means, with respect to the Securities issuable or
issued in whole or in part in global form, the person specified in Section 2.3
as the Depositary with respect to the Securities, until a successor shall have
been appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"Disinterested Director" means, with respect to any
transaction or series of related transactions, a member of the Board of
Directors of Centennial who does not have any material direct or indirect
financial interest in or with respect to such transaction or series of related
transactions.
"Disqualified Capital Stock" means, with respect to any
Person, Capital Stock of such Person that, by its terms or by the terms of any
security into which it is convertible, exercisable or exchangeable, is, or upon
the happening of any event or the passage of time would be, required to be
redeemed or repurchased (including at the option of the holder thereof) by such
Person or any of its Subsidiaries, in whole or in part, on or prior to the
Stated Maturity of the Securities; provided that (a) Capital Stock will not be
deemed to be Disqualified Capital
8
Stock if it may only be so redeemed or repurchased solely in consideration of
Qualified Capital Stock of the Company or Centennial and (b) any Capital Stock
that would not constitute Disqualified Capital Stock but for provisions thereof
giving holders thereof the right to require such Person to repurchase or redeem
such Capital Stock upon the occurrence of an "asset sale" or "change of control"
occurring prior to the Stated Maturity of the Securities shall not constitute
Disqualified Capital Stock if the "asset sale" or "change of control" provisions
applicable to such Capital Stock are no more favorable to the holders of such
Capital Stock than the provisions contained in Sections 4.14 and 11.1 hereof and
such Capital Stock specifically provides that such Person will not repurchase or
redeem any such stock pursuant to such provision prior to the Issuers'
repurchase of such Securities as are required to be repurchased pursuant to the
provisions contained in Sections 4.14 and 11.1 hereof.
"Eligible Institution" means a commercial banking institution
that has combined capital and surplus of not less than $500,000,000 or its
equivalents in foreign currency, whose debt is rated "A" or higher (or the
equivalent rating or higher) according to Moody's or S&P (or such similar
equivalent rating by at least one "nationally recognized statistical rating
organization" (as defined in Rule 436 under the Securities Act)) respectively,
at the time as of which any investment or rollover therein is made.
"Event of Default" shall have the meaning specified in Section
6.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set
forth in the Registration Rights Agreement.
"Exchange Securities" means the Securities issued in the
Exchange Offer in accordance with Section 2.6(f) hereof.
"Excluded Cash Contributions" shall have the meaning specified
in Section 4.11.
"Excluded Contributions" means the net cash proceeds received
by the Company or Centennial after the Issue Date from (a) contributions to its
common equity capital and (b) the sale (other than to the Company's or
Centennial's or to any of their Subsidiaries' management equity plan or stock
option plan or any other management or employee benefit plan or agreement) of
Capital Stock (other than Disqualified Capital Stock) of the Company or
Centennial, in each case designated as Excluded Contributions pursuant to an
Officers' Certificate executed by an officer of the Company or Centennial, the
cash proceeds of which are excluded from the calculation set forth in the first
paragraph of Section 4.3 and which may not also be designated Excluded Cash
Contributions.
"Fair Market Value" means, with respect to any asset or
property, the sale value that would be obtained in an arm's-length transaction
between an informed and willing seller under no compulsion to sell and an
informed and willing buyer under no compulsion to buy.
9
"Final Put Date" shall have the meaning specified in Section
4.14.
"Foreign Restricted Subsidiary" means any Restricted
Subsidiary of the Company formed under the laws of any jurisdiction other than
the United States or any political subdivision thereof, substantially all of the
assets of which are located outside of the United States or that conducts
substantially all of its business outside of the United States.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board ("FASB") or, if FASB
ceases to exist, any successor thereto; provided, however, that for purposes of
determining compliance with covenants in this Indenture other than those
relating to financial statement delivery, "GAAP" means such generally accepted
accounting principles as in effect as of the Issue Date.
"Global Securities" means, individually and collectively, each
of the Restricted Global Securities and the Unrestricted Global Securities,
substantially in the form of Exhibit A-1 or A-2 hereto, as appropriate, issued
in accordance with Section 2.1, 2.6(b)(iv), 2.6(d)(ii) or 2.6(f) of this
Indenture.
"Global Security Legend" means the legend set forth in Section
2.6(g)(ii), which is required to be placed on all Global Securities issued under
this Indenture.
"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 (or co-issuance) by a
Guarantor of the Company's Indenture Obligations.
"Guarantor" means any Restricted Subsidiary of the Company
which becomes a guarantor (or co-obligor) of the Company's Indenture
Obligations.
"Holder" or "Securityholder" means a Person in whose name a
Security is registered. The Holder of a Security will be treated as the owner of
such Security for all purposes.
"IAI Global Security" means the global Security substantially
in the form of Exhibit A-1 hereto bearing the Global Security Legend and the
Private Placement Legend and deposited with or on behalf of and registered in
the name of the Depositary or its nominee that will be issued in a denomination
equal to the outstanding principal amount of the Securities sold to
Institutional Accredited Investors.
"Incur" shall have the meaning specified in Section 4.11.
"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
10
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, notes, debentures or
similar instruments, (iii) representing the balance deferred and unpaid of the
purchase price of any property or services except (other than accounts payable
or other obligations to trade creditors which have remained unpaid for greater
than 90 days past their original due date or to financial institutions, which
obligations are not being contested in good faith and for which appropriate
reserves have been established) those incurred in the ordinary course of its
business that would constitute ordinarily a trade payable to trade creditors,
(iv) evidenced by bankers' acceptances or similar instruments issued or accepted
by banks, (v) for the payment of money relating to a Capitalized Lease
Obligation, or (vi) evidenced by a letter of credit or a reimbursement
obligation of such Person with respect to any letter of credit; (b) all
obligations of such Person under Interest Rate Protection Obligations or
Currency Hedging Agreements; (c) all liabilities of others of the kind described
in the preceding clause (a) or (b) that such Person has guaranteed or that is
otherwise its legal liability or which are secured by any assets or property of
such Person and all obligations to purchase, redeem or acquire any Capital
Stock; (d) all Disqualified Capital Stock of such Person and all Preferred Stock
of such Person's Restricted Subsidiaries valued at the greater of its voluntary
or involuntary maximum fixed repurchase price plus accrued and unpaid dividends;
and (e) 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 clause (a), (b),
(c), (d) or this clause (e), whether or not between or among the same parties;
provided that the outstanding principal amount at any date of any Indebtedness
issued with 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. For purposes hereof, the "maximum fixed repurchase
price" of any Disqualified Capital Stock which does not have a fixed repurchase
price shall be calculated in accordance with the terms of such Disqualified
Capital Stock as if such Disqualified Capital Stock were purchased on any date
on which Indebtedness shall be required to be determined pursuant to this
Indenture, and if such price is based upon, or measured by, the Fair Market
Value of such Disqualified Capital Stock, such Fair Market Value to be
determined in good faith by the board of directors of the issuer of such
Disqualified Capital Stock.
"Indenture" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Security through a Participant.
"Initial Purchasers" means Xxxxxx Brothers Inc., Credit Suisse
First Boston LLC, Xxxxxxx, Xxxxx & Co. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act, who are not also QIBs.
"Interest Payment Date" means the stated due date of an
installment of interest on the Securities.
11
"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 this 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.
"Investment" by any Person in any other Person means (without
duplication) (a) the acquisition (whether by purchase, merger, consolidation or
otherwise) by such Person (whether for cash, property, services, securities or
otherwise) of capital stock, bonds, notes, debentures, partnership or other
ownership interests or other securities of such other Person or any agreement to
make any such acquisition; (b) the making by such Person of any deposit with, or
advance, loan or other extension of credit to, such other Person (including the
purchase of property from another Person subject to an understanding or
agreement, contingent or otherwise, to resell such property to such other
Person) or any commitment to make any such advance, loan or extension; (c) the
entering into by such Person of any guarantee of, or other contingent obligation
with respect to, Indebtedness or other liability of such other Person; (d) the
making of any capital contribution by such Person to such other Person; and (e)
the designation by the Board of Directors of the Company of any Person to be an
Unrestricted Subsidiary. For purposes of Section 4.3, (i) "Investment" shall
include and be valued at the Fair Market Value of the net assets of any
Restricted Subsidiary at the time that such Restricted Subsidiary is designated
an Unrestricted Subsidiary and shall exclude the Fair Market Value of the net
assets of any Unrestricted Subsidiary at the time that such Unrestricted
Subsidiary is designated a Restricted Subsidiary and (ii) the amount of any
Investment shall be equal to the Fair Market Value of such Investment plus the
Fair Market Value of all additional Investments by the Company or any of its
Restricted Subsidiaries at the time any such Investment is made; provided that,
for purposes of this sentence, the Fair Market Value of net assets shall be as
determined in the reasonable judgment of the Board of Directors of the Company.
"Investment Grade Date" has the meaning set forth in Section
4.21 hereof.
"Investment Grade Rating" means a rating of the relevant debt
obligation by both S&P and Moody's, any such rating being one of S&P's or
Moody's, as the case may be, four highest generic rating categories that
signifies an "investment grade" rating, which currently is BBB- or higher by S&P
and Baa3 or higher by Moody's; provided that in each case, such ratings are
publicly available; provided further that in the event either S&P or Xxxxx'x is
no longer in existence for purposes of determining whether debt obligations have
an Investment Grade Rating, S&P or Xxxxx'x, as the case may be, may be replaced
by a "nationally recognized statistical rating organization" (as defined in Rule
436 under the Securities Act) designated by Centennial (as evidenced by a
resolution of the Board of Directors of Centennial), written notice of which
shall be given to the Trustee.
12
"Investment Equity" has the meaning given such term in the
definition of "Permitted Investment."
"Issue Date" means the time and date of the first issuance of
the Securities under this Indenture.
"Issuers" has the meaning set forth in the introductory
paragraph hereof.
"Legal Defeasance" shall have the meaning specified in Section
8.2.
"Legal Holiday" shall have the meaning specified in Section
12.7.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Issuers and sent to all Holders of the Securities for use by
such Holders in connection with the Exchange Offer.
"Lien" means any mortgage or deed of trust, lien, pledge,
charge, privilege, security interest, assignment, deposit, arrangement,
easement, hypothecation, claim, preference, priority or other encumbrance of any
kind, whether or not filed, recorded or otherwise perfected under applicable law
with respect to property of any kind (including any conditional sale, capital
lease or other title retention agreement and any lease deemed to constitute a
security interest and any option or other agreement to give any security
interest), real or personal, movable or immovable, now owned or hereafter
acquired.
"Marketable U.S. Securities" means: (i) Government Securities;
(ii) any time deposit account, money market deposit and certificate of deposit
maturing not more than 270 days after the date of acquisition issued by, or time
deposit of, an Eligible Institution; (iii) commercial paper maturing not more
than 270 days after the date of acquisition issued by a corporation (other than
an Affiliate of the Company) with a rating, at the time as of which any
investment therein is made, of "P-1" or higher according to Moody's, "A-1" or
higher according to S&P (or such similar equivalent rating by at least one
"nationally recognized statistical rating organization" (as defined in Rule 436
under the Securities Act)); (iv) any banker's acceptances or money market
deposit accounts issued or offered by an Eligible Institution; (v) repurchase
obligations with a term of not more than 7 days for Government Securities
entered into with an Eligible Institution; and (vi) any fund investing
exclusively in investments of the types described in clauses (i) through (v)
above.
"Maturity Date" means, when used with respect to any Security,
the date specified on such Security as the fixed date on which the final
installments of principal of such Security is due and payable (in the absence of
any acceleration thereof pursuant to the provisions of this Indenture regarding
acceleration of Indebtedness or any Change of Control Offer or Asset Sale
Offer).
"Minimum Accumulation Date" shall have the meaning specified
in Section 4.14.
"Minority Cellular Investment Interests" means limited
partnership or other equity interests held directly or indirectly by the Company
in cellular telephony providers which
13
are not Subsidiaries or otherwise controlled (directly or indirectly) by the
Company in existence on the Senior Subordinated Notes Issue Date.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Net Cash Proceeds" means the aggregate amount of cash and
Cash Equivalents received by the Company and its Restricted Subsidiaries in
respect of an Asset Sale (including upon the conversion to cash and Cash
Equivalents of (A) any note or installment receivable at any time, or (B) any
other property as and when any cash and Cash Equivalents are received in respect
of any property received in an Asset Sale but only to the extent such cash and
Cash Equivalents are received within one year after such Asset Sale), less the
sum of (i) all out-of-pocket fees, commissions and other expenses Incurred in
connection with such Asset Sale, including the amount (estimated in good faith
by the Board of Directors of the Company) of income, franchise, sales and other
applicable taxes required to be paid by the Company or any Restricted Subsidiary
in connection with such Asset Sale and (ii) the aggregate amount of cash so
received which is used to retire any existing Indebtedness of the Issuers that
is Pari Passu Indebtedness or any Priority Indebtedness, as the case may be,
which is required to be repaid in connection with such Asset Sale or is secured
by a Lien on the property or assets of the Company or any of its Restricted
Subsidiaries, as the case may be.
"Net Proceeds" means the aggregate net proceeds (including the
Fair Market Value of noncash proceeds constituting equipment or other assets of
a type generally used in a Related Business an amount reasonably determined by
the Board of Directors of the Company for amounts under $10,000,000 and by a
financial advisor or appraiser of national reputation for equal or greater
amounts) received by a Person from the sale of Qualified Capital Stock (other
than to a Subsidiary of such Person) after payment of out-of-pocket expenses,
commissions and discounts Incurred and net of taxes paid or payable in
connection therewith.
"Non-U.S. Person" means a Person that is not a U.S. Person.
"Notice of Default" shall have the meaning specified in
Section 6.1(3).
"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 a Person 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.
"Offering" means the offering of the Securities by the
Issuers.
"Offering Memorandum" means that certain Offering Memorandum
of the Issuers, dated June 16, 2003, relating to the original issuance and sale
of the Securities to the Initial Purchasers.
"Officer" means, with respect to the Company, Centennial PR or
Centennial, the Chief Executive Officer, the President, any Vice President, the
Chief Financial Officer, the Treasurer, the Controller, or the Secretary of the
Company, Centennial PR or Centennial, respectively.
14
"Officers' Certificate" means, with respect to the Issuers, a
certificate signed by two Officers or by an Officer and an Assistant Secretary
of each of the Issuers, and otherwise complying with the requirements of
Sections 12.4 and 12.5.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee complying with the
requirements of Sections 12.4 and 12.5.
"Other Permitted Indebtedness" shall have the meaning
specified in Section 4.9.
"Pari Passu Indebtedness" means (a) with respect to the
Company or Centennial PR, any Indebtedness of the Company or Centennial PR that
is pari passu in right of payment to the Securities and (b) with respect to any
Guarantor, Indebtedness which ranks pari passu in right of payment to the
Guarantee of such Guarantor.
"Participant" means, with respect to the Depositary, Euroclear
or Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and with respect to DTC, shall include Euroclear and
Clearstream).
"Participating Broker-Dealer" has the meaning set forth in the
Registration Rights Agreement.
"Paying Agent" shall have the meaning specified in Section
2.3.
"Permitted Holders" means Xxxxx Xxxxxx and Blackstone.
"Permitted Indebtedness" shall have the meaning specified in
Section 4.11.
"Permitted Investment" means (i) Investments in Cash
Equivalents; (ii) Investments in the Company or a Restricted Subsidiary; (iii)
Investments in a Person substantially all of whose assets are of a type
generally used in a Related Business (an "Acquired Person") if, as a result of
such Investments, (A) the Acquired Person immediately thereupon becomes a
Restricted Subsidiary or (B) the Acquired Person immediately thereupon either
(1) is merged or consolidated with or into the Company or any of its Restricted
Subsidiaries and the surviving Person is the Company or a Restricted Subsidiary
or (2) transfers or conveys all or substantially all of its assets to, or is
liquidated into, the Company or any of its Restricted Subsidiaries; (iv)
Investments in accounts and notes receivable acquired in the ordinary course of
business; (v) any securities received in connection with an Asset Sale and any
Investment with the Net Cash Proceeds from any Asset Sale in Capital Stock of a
Person, all or substantially all of whose assets are of a type used in a Related
Business, that complies with Section 4.14; (vi) any guarantee issued by a
Restricted Subsidiary Incurred in compliance with this Indenture; (vii) advances
and prepayments for asset purchases in the ordinary course of business in a
Related Business of the Company or a Restricted Subsidiary; (viii) customary
loans or advances made in the ordinary course of business to officers, directors
or employees of the Company or any of its Restricted Subsidiaries for travel,
entertainment, and moving and other relocation expenses; (ix) advances to
employees not in excess of $1,000,000 outstanding at any one time, in the
aggregate; (x) any Investment acquired by the Company or any of its Restricted
Subsidiaries (a) in exchange for any other Investment or accounts receivable
held by the Company or any such Restricted Subsidiary in connection with or as a
result of a bankruptcy, workout,
15
reorganization or recapitalization of the Company of such other Investment or
accounts receivable or (b) as a result of a foreclosure by the Company or any of
its Restricted Subsidiaries with respect to any secured Investment or other
transfer of title with respect to any secured Investment in default; (xi)
Interest Rate Protection Obligations or Currency Hedging Agreements permitted
under clause (ix) or (x) of Section 4.11; (xii) Investments the payment for
which consists of Qualified Capital Stock of the Company ("Investment Equity");
provided, however, that the issuance of such Qualified Capital Stock equity
interests will not increase the amount available for Restricted Payments under
the covenant set forth in Section 4.3; (xiii) Investments in Permitted Joint
Ventures which in the aggregate at any one time outstanding do not exceed
$10,000,000; (xiv) any Investment in a Related Business (including in an
Unrestricted Subsidiary) having an aggregate Fair Market Value, taken together
with all other Investments made pursuant to this clause (xiv) that are at that
time outstanding, which does not exceed the greater of (A) $20,000,000 or (B) 4%
of Total Assets at the time of such Investment (with the Fair Market Value of
each Investment being measured at the time made and without giving effect to
subsequent changes in value); and (xv) Investments existing on the Issue Date.
"Permitted Joint Venture" means, as applied to any Person, any
other Person engaged in a Related Business, (a) over which such Person is
responsible (either directly or through a services agreement) for day-to-day
operations or otherwise has operational and managerial control of such other
Person or (b) of which more than forty percent (40%) of the outstanding Voting
Stock (other than directors' qualifying shares) of such other Person in the case
of a corporation, or more than forty percent (40%) of the outstanding ownership
interests of such other Person, in the case of an entity other than a
corporation, is at the time owned directly or indirectly by such Person.
"Permitted Liens" means:
(1) Liens securing (a) Priority Indebtedness (including
related Obligations) that is permitted to be Incurred
by the first sentence of Section 4.9, or (b)
Indebtedness (including related Obligations) that is
permitted to be Incurred by clause (i) or (xi) of
Section 4.11;
(2) Liens in favor of Company or any Restricted
Subsidiary;
(3) Liens on property (i) existing at the time of
acquisition thereof or (ii) of a Person existing at
the time such Person is merged into or consolidated
with Company or any Restricted Subsidiary; provided
that such Liens were in existence prior to the
contemplation of such acquisition, merger or
consolidation and do not extend to any assets other
than those acquired or to those of the Person merged
into or consolidated with Company or a Restricted
Subsidiary, as the case may be;
(4) Liens that secure Debt of a Person existing at the
time such Person becomes a Restricted Subsidiary,
provided that such Liens do not extend to any assets
other than those of the Person that became a
Restricted Subsidiary;
16
(5) banker's Liens, right of setoff and Liens to secure
the performance of bids, tenders, trade or government
contracts (other than for borrowed money), leases,
licenses, statutory obligations, surety or appeal
bonds, performance bonds or other obligations of a
like nature Incurred in the ordinary course of
business;
(6) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clause (iv) of the third
paragraph of Section 4.11, covering only the assets
purchased, acquired or leased, any additions and
accessions thereto and any proceeds therefrom;
(7) Liens existing on the Issue Date;
(8) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other like Liens
arising in the ordinary course of business, in each
case, that are not yet due or delinquent or that are
bonded, as the case may be, or that are being
contested in good faith and by appropriate
proceedings; provided that any reserve or other
appropriate provision as shall be required in
conformity with GAAP shall have been made therefor;
(9) Liens on goods (and the proceeds thereof) and
documents of title and the property covered thereby
securing Indebtedness in respect of commercial
letters of credit;
(10) Liens arising by reason of a judgment, decree or
court order, to the extent not otherwise resulting in
an Event of Default, and any Liens that are required
to protect or enforce any rights in any
administrative, arbitration or other court
proceedings in the ordinary course of business;
(11) Liens securing Interest Rate Protection Obligations
and Currency Hedging Agreements permitted to be
Incurred by clause (ix) or (x) of the third paragraph
of Section 4.11;
(12) without limitation of clause (1) above, Liens
securing Refinancing Indebtedness permitted to be
Incurred by clauses (iv), (vii) or (xii) of the third
paragraph of Section 4.11 or amendments or renewals
of Liens that were permitted to be Incurred pursuant
to clause (1), (3), (4), (6), (7), (9) or (11) above;
provided that, in each case, that such Liens do not
extend to an additional property or asset of Company
or a Restricted Subsidiary;
(13) any provision for the retention of title to an asset
by the vendor or transferor of such asset which asset
is acquired by Company or any Restricted Subsidiary
in a transaction entered into in the ordinary course
of business of Company or such Restricted Subsidiary;
(14) Liens securing guarantees of any Indebtedness
permitted to be secured by this Indenture; and
17
(15) Liens Incurred in the ordinary course of business of
Company or any Restricted Subsidiary of Company with
respect to obligations that do not exceed $10,000,000
at any one time outstanding and that (A) are not
Incurred in connection with the borrowing of money or
the obtaining of advances or credit (other than trade
credit in the ordinary course of business) and (B) do
not in the aggregate materially detract from the
value of the property or materially impair the use
thereof in the operation of business by Company or
such Restricted Subsidiary.
"Person" means any corporation, individual, joint stock
company, limited liability company, joint venture, partnership, unincorporated
association, governmental regulatory entity, country, state or political
subdivision thereof, trust, municipality or other entity.
"Preferred Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents (however designated)
of such Person's preferred or preference stock whether now outstanding, or
issued after the Issue Date, and including, without limitation, all classes and
series of preferred or preference stock of such Person.
"Principal" of any Indebtedness means the principal of such
Indebtedness plus, without duplication, applicable premium, if any, on such
Indebtedness.
"Priority and Pari Passu Debt to Cash Flow Ratio" means on any
date (referred to in this definition as the "Transaction Date") the ratio of (i)
the sum of Pari Passu Indebtedness of each of Company, Centennial PR and any
Guarantor and the Priority Indebtedness of Company, Centennial PR and the
Restricted Subsidiaries on the Transaction Date (after giving pro forma effect
to the Incurrence of such Indebtedness) (and without duplication of any
Indebtedness that may be the obligation of Company, Centennial PR and the
Restricted Subsidiaries and/or one or more of its Subsidiaries) divided by (ii)
the aggregate amount of Annual Consolidated EBITDA of Company and its Restricted
Subsidiaries (determined on a pro forma basis after giving effect to all
Investments in and acquisitions or dispositions of any company or any business
or any assets out of the ordinary course of business, whether by merger, stock
purchase or sale or asset purchase or sale, made by Company and its Restricted
Subsidiaries from the beginning of the Reference Period through the Transaction
Date as if such Investment, acquisition or disposition had occurred at the
beginning of such Reference Period); provided that, for purposes of such
computation, in calculating Annual Consolidated EBITDA and Pari Passu
Indebtedness and Priority Indebtedness, (a) the transaction giving rise to the
need to calculate the Priority and Pari Passu Debt to EBITDA Ratio will be
assumed to have occurred (on a pro forma basis) on the first day of the
Reference Period; (b) the incurrence of any Priority Indebtedness or Pari Passu
Indebtedness during the Reference Period or subsequent thereto and on or prior
to the Transaction Date (and the application of the proceeds therefrom to the
extent used to retire Indebtedness or to acquire businesses) will be assumed to
have occurred (on a pro forma basis) on the first day of such Reference Period;
(c) Consolidated Interest Expense attributable to any Indebtedness (whether
existing or being Incurred) bearing a floating interest rate shall be computed
as if the rate in effect on the Transaction Date had been the applicable rate
for the entire period; and (d) all members of the consolidated group of Company
and its Restricted Subsidiaries on the Transaction Date that were acquired
during the Reference Period shall be deemed to be members of the consolidated
group of Company and its Restricted Subsidiaries for
18
the entire Reference Period. Any such pro forma calculation may include
adjustments for the pro forma effect of (a) any cost savings accounted for on an
annualized basis as a result of an acquisition by Company or a Restricted
Subsidiary which, in the good faith judgment of Company (as determined by a
resolution of the board of directors of Company), will be eliminated or realized
within one year after the date of such transaction (provided that any such cost
savings are calculated in accordance with Regulation S-X under the Securities
Act (or any successor regulation)) or (b) any direct quantifiable savings from
the conversion of roaming expense which Company will obtain within one year of
the transaction in the good faith judgment of the Board of Directors of Company
from the acquisition of a third party which prior to such acquisition had a
contract with Company or any Restricted Subsidiary for roaming services.
"Priority Indebtedness" means Indebtedness of (i) the Company,
Centennial PR or any Guarantor that is secured by any Lien on assets of the
Company, Centennial PR or any Guarantor or (ii) any Restricted Subsidiary other
than Centennial PR or a Guarantor.
"Private Placement Legend" means the legend set forth in
Section 2.6(g)(i) to be placed on all Securities issued under this Indenture
except where otherwise permitted by the provisions of this Indenture.
"Public Equity Offering" means an underwritten offer and sale
of common stock (which is Qualified Capital Stock) of the Company or Centennial
with aggregate proceeds of at least $50,000,000 pursuant to a registration
statement that has been declared effective by the Commission pursuant to the
Securities Act (other than a registration statement on Form S-8 (or any
successor form covering substantially the same transactions), S-4 (or any
successor form covering substantially the same transactions), or otherwise
relating to equity securities issuable under any employee benefit plan of such
corporate entity).
"Purchase Money Indebtedness" means any Indebtedness of the
Company or its Restricted Subsidiaries which is secured by a Lien on assets
related to the business of the Company or its Restricted Subsidiaries and any
additions and accessions thereto, which are purchased by the Company or its
Restricted Subsidiaries at any time after the Securities are issued; provided
that (i) the security agreement or conditional sales or other title retention
contract pursuant to which the Lien on such assets is created (collectively a
"Purchase Money Security Agreement") shall be entered into within 90 days after
the purchase or substantial completion of the construction of such assets and
shall at all times be confined solely to the assets so purchased without further
recourse to either the Company or any of its Restricted Subsidiaries or
acquired, any additions and accessions thereto and any proceeds therefrom, (ii)
at no time shall the aggregate principal amount of the outstanding Indebtedness
secured thereby be increased, except in connection with the purchase of
additions and accessions thereto and except in respect of fees and other
obligations in respect of such Indebtedness and (iii) (A) the aggregate
outstanding principal amount of Indebtedness secured thereby (determined on a
per asset basis in the case of any additions and accessions) shall not at the
time such Purchase Money Security Agreement is entered into exceed 100% of the
purchase price to the Company or its Restricted Subsidiaries of the assets
subject thereto or (B) the Indebtedness secured thereby shall be with recourse
solely to the assets so purchased or acquired, any additions and accessions
thereto and any proceeds therefrom.
19
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Qualified Capital Stock" means any Capital Stock of a Person
that is not Disqualified Capital Stock.
"Record Date" means a Record Date specified in the Securities
whether or not such Record Date is a Business Day.
"Redemption Date," when used with respect to any Security to
be redeemed, means the date fixed for such redemption pursuant to Article III of
this Indenture and Paragraph 5 in the form of Security attached hereto as
Exhibit A.
"Redemption Price," when used with respect to any Security to
be redeemed pursuant to any provision in this Indenture means the price at which
it is to be redeemed pursuant to this Indenture, which shall include, without
duplication, in each case, any accrued and unpaid interest to the Redemption
Date.
"Reference Period" with regard to any Person means the last
four full fiscal quarters of such Person for which financial information (which
the Company shall use its best efforts to compile in a timely manner) in respect
thereof is available ended on or immediately preceding any date upon which any
determination is to be made pursuant to the terms of the Securities or this
Indenture.
"Reference Treasury Dealer" means each of Xxxxxx Brothers
Inc., Credit Suisse First Boston LLC and two other primary U.S. Government
securities dealers in The City of New York to be selected by the Company, and
their respective successors.
"Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or such Restricted Subsidiary (other
than intercompany Indebtedness); provided that: (i) the principal amount (or
accreted value, if applicable) of such Refinancing Indebtedness does not exceed
the principal amount of (or accreted value, if applicable), plus accrued
interest, and premium, if any, on, the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded (plus the amount of premium and
reasonable expenses Incurred in connection therewith); (ii) such Refinancing
Indebtedness has a final maturity date later than the final maturity date of,
and has a Weighted Average Life equal to or greater than the Weighted Average
Life of, the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; (iii) if the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded is subordinated in right of payment to
the Securities, such Refinancing Indebtedness is subordinated in right of
payment to, the Securities or the Guarantees, as applicable, on terms at least
as favorable to the Holders of Securities as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and (iv) such Indebtedness is Incurred either by
the Company, Centennial PR, any Guarantor or by the Restricted Subsidiary who is
the obligor on the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded.
"Registrar" shall have the meaning specified in Section 2.3.
20
"Registration Rights Agreement" means the Registration Rights
Agreement dated February 9, 2004 by and among the Initial Purchasers, the
Company, Centennial and Centennial PR, as such agreement may be amended,
modified or supplemented from time to time in accordance with the terms thereof.
"Regulation S" means Regulation S under the Securities Act, as
amended from time to time.
"Regulation S Global Security" means a Regulation S Temporary
Global Security or a Regulation S Permanent Global Security, as appropriate.
"Regulation S Permanent Global Security" means a permanent
global Security in the form of Exhibit A-1 hereto bearing the Global Security
Legend and the Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount at maturity of the
Regulation S Temporary Global Security upon expiration of the Restricted Period.
"Regulation S Temporary Global Security" means a temporary
global Security in the form of Exhibit A-2 hereto bearing the Global Security
Legend, the Private Placement Legend and the Temporary Regulation S Legend and
deposited with or on behalf of and registered in the name of the Depositary or
its nominee, issued in a denomination equal to the outstanding principal amount
at maturity of the Securities initially sold in reliance on Rule 903 of
Regulation S.
"Related Business" means any business related to, or
complementary to, the ownership, development, operation, or acquisition of
communications systems as determined by the Board of Directors of the Company.
"Related Person" means, with respect to any Person, (i) any
Affiliate of such Person or any spouse, immediate family member, or other
relative who has the same principal residence of any Affiliate of such Person
and (ii) any trust in which any Person described in clause (i) above, has a
beneficial interest.
"Related Person Transaction" shall have the meaning specified
in Section 4.10.
"Restricted Definitive Security" means a Definitive Security
bearing the Private Placement Legend.
"Restricted Global Security" means a Global Security bearing
the Private Placement Legend.
"Restricted Payment" means, with respect to any Person, (i)
any dividend or other distribution on shares of Capital Stock of such Person or
any Restricted Subsidiary of such Person, (ii) any payment on account of the
purchase, redemption or other acquisition or retirement for value in whole or in
part, of any shares of Capital Stock of such Person, any entity which controls
such Person or any Restricted Subsidiary of such Person, which Capital Stock is
held by Persons other than such Person or any of its Restricted Subsidiaries, or
options, warrants or other rights to acquire such Capital Stock, (iii) any
defeasance, redemption, repurchase or
21
other acquisition or retirement for value in whole or in part, of any
Indebtedness of such Person (other than the scheduled repayment thereof at
maturity and any mandatory redemption or mandatory repurchase thereof pursuant
to the terms thereof) by such Person or a Subsidiary of such Person that is
subordinate in right of payment to the Securities (other than in exchange for
Refinancing Indebtedness permitted to be Incurred under this Indenture and
except for any such defeasance, redemption, repurchase, other acquisition or
payment in respect of Indebtedness held by any Restricted Subsidiary) and (iv)
any Investment (other than a Permitted Investment); provided, however, that the
term "Restricted Payment" does not include (i) any dividend, distribution or
other payment on shares of Capital Stock of the Company or any Restricted
Subsidiary solely in shares of Qualified Capital Stock or in options, warrants
or other rights to acquire such Qualified Capital Stock), (ii) any dividend,
distribution or other payment to the Company, or any dividend to any of its
Restricted Subsidiaries, by any of its Subsidiaries, (iii) any dividend,
distribution or other payment by any Restricted Subsidiary on shares of its
Capital Stock that is paid pro rata to all holders of such Capital Stock and
(iv) the purchase, redemption or other acquisition or retirement for value of
shares of Capital Stock of any Restricted Subsidiary held by Persons other than
the Company or any of its Restricted Subsidiaries.
"Restricted Period" means the distribution and compliance
period as defined in Regulation S.
"Restricted Security" means a Security, unless or until it has
been (i) disposed of in a transaction effectively registered under the
Securities Act or (ii) distributed to the public pursuant to Rule 144 (or any
similar provision then in force) under the Securities Act; provided that in no
case shall an Exchange Security issued in accordance with this Indenture and the
terms and provisions of the Registration Rights Agreement be a Restricted
Security.
"Restricted Subsidiary" means any Subsidiary of the Company
that has not been designated by the Board of Directors of the Company by Board
Resolution delivered to the Trustee as an Unrestricted Subsidiary pursuant to
and in compliance with Section 4.17.
"Rule 144A" means Rule 144A under the Securities Act (or any
successor rule), as amended from time to time.
"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A Global Securities" means one or more permanent
Global Securities in registered form representing the aggregate principal amount
of Securities sold in reliance on Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Rating Services, a division of
The XxXxxx-Xxxx Companies, Inc.
"SEC" means the Securities and Exchange Commission.
"Securities" means, collectively, the Securities issued on the
date hereof, Additional Securities, if any, and, when and if issued as provided
in the Registration Rights
22
Agreement, the Exchange Securities. The Securities and the Additional Securities
shall be treated as a single class for all purposes under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended,
or any successor statute, and the rules and regulations of the SEC promulgated
thereunder.
"Securities Custodian" means the Trustee, as custodian with
respect to the Securities in global form, or any successor entity thereto.
"Senior Credit Facility" means that certain senior secured
credit agreement, to be dated as of the Issue Date, to be entered into among the
Company and Centennial PR as borrowers, the guarantors named therein, Credit
Suisse First Boston and certain other financial institutions party thereto, as
such agreement may be, in one or more agreements, indentures, notes or
arrangements, 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).
"Senior Subordinated Notes" means the 10-3/4% Senior
Subordinated Notes due 2008 issued pursuant to an indenture dated December 14,
1998, as amended, among the Company and Centennial, as co-issuers, Centennial
PR, as a guarantor, and The Chase Manhattan Bank, as trustee.
"Senior Subordinated Notes Issue Date" means December 14,
1998.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Significant Restricted Subsidiary" means one or more
Restricted Subsidiaries having an aggregate net book value of assets in excess
of 5% of the net book value of the assets of the Company and its Restricted
Subsidiaries on a consolidated basis.
"Special Record Date" for payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 2.12.
"Stated Maturity" means the date fixed for the payment of any
principal or premium pursuant to this Indenture and the Securities, including
the Maturity Date, upon redemption, acceleration, Asset Sale Offer, Change of
Control Offer or otherwise.
"Strategic Equity Investor" means any Person which is (or a
controlled Affiliate of any Person which is) engaged in the ownership,
development, operation or acquisition of communications systems and which, as of
the last available annual or quarterly financial statements, has Total Common
Equity of at least $1.0 billion.
"Strategic Equity Offering" means an offer or sale of common
stock or Preferred Stock (other than Disqualified Capital Stock) of the Company
or Centennial, with aggregate
23
proceeds of at least $50,000,000 to a Strategic Equity Investor other than in
connection with or after the occurrence of a Change of Control.
"Subordinated Indebtedness" means Indebtedness of the Company,
Centennial, Centennial PR or a Guarantor subordinated in right of payment to the
Securities or a Guarantee, as the case may be.
"Subsidiary" with respect to any Person, means (i) a
corporation at least 50% 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 (ii) a partnership
in which such Person or a Subsidiary of such Person is, at the time, a general
partner of such partnership, or (iii) 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 fifty percent (50%) ownership interest or (y) the power to elect
or direct the election of the directors or other governing body of such Person.
"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same debt as that
evidenced by, such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 2.15 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.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
ss.ss.77aaa-77bbbb) as amended and as in effect on the date of the execution of
this Indenture.
"Total Assets" means the total assets of the Company and its
Restricted Subsidiaries shown on the consolidated balance sheet of the Company
and its Restricted Subsidiaries prepared in accordance with GAAP as of the last
day of the immediately preceding fiscal quarter for which financial statements
are available.
"Total Common Equity" of any Person means, as of any date of
determination, the product of (i) the aggregate number of outstanding primary
shares of Common Stock of such Person on such day (which shall not include any
options or warrants on, or securities convertible or exchangeable into, shares
of Common Stock of such Person) and (ii) the average Closing Price of such
Common Stock over the 20 consecutive Trading Days immediately preceding such
day. If no such Closing Price exists with respect to shares of any such class,
the value of such shares for purposes of clause (ii) of the preceding sentence
shall be determined by the Board of Directors of Centennial or the Company in
good faith and evidenced by a resolution of the Board of Directors filed with
the Trustee.
"Trading Day," with respect to a securities exchange or
automated quotation system, means a day on which such exchange or system is open
for a full day of trading.
"Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
24
"Trust Officer" means any officer within the corporate trust
division (or any successor group) of the Trustee or any other officer of the
Trustee customarily performing functions similar to those performed by the
Persons who at that time shall be such officers assigned and duly authorized by
the Trustee to administer its corporate trust matters hereunder, and also means,
with respect to a particular corporate trust matter hereunder, any other officer
of the Trustee to whom such trust matter is referred because of his knowledge of
and familiarity with the particular subject.
"Trustee" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and thereafter means such successor.
"Unrestricted Definitive Security" means one or more
Definitive Securities that do not bear and are not required to bear the Private
Placement Legend.
"Unrestricted Global Security" means a permanent Global
Security substantially in the form of Exhibit A-1 attached hereto that bears the
Global Security Legend and that has the "Schedule of Exchanges of Interests in
the Global Security" attached thereto, and that is deposited with or on behalf
of and registered in the name of the Depositary, representing a series of
Securities that do not bear the Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company
(other than Centennial PR or any Guarantor) designated as such, which
designation prior to the Investment Grade Date shall be pursuant to and in
compliance with Section 4.17.
"U.S. Legal Tender" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for payment of
public and private debts.
"U.S. Person" means a U.S. person as defined in Rule 902(o)
under the Securities Act.
"Voting Stock" with respect to a Person means Capital Stock of
such Person having generally the right to vote in the election of a majority of
the directors of such Person or having generally the right to vote with respect
to the organizational matters of such Person.
"Weighted Average Life" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Xxxxx Xxxxxx" means Welsh, Carson, Xxxxxxxx & Xxxxx VIII,
L.P. and affiliates of the foregoing that are directly or indirectly controlling
or controlled by Welsh, Carson, Xxxxxxxx & Xxxxx VIII, L.P. or under direct or
indirect common control with Welsh, Carson, Xxxxxxxx & Xxxxx VIII, L.P.
25
SECTION 1.2. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture securityholder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company and
any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule and
not otherwise defined herein have the meanings assigned to them thereby.
SECTION 1.3. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words
in the plural include the singular;
(5) provisions apply to successive events and
transactions;
(6) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(7) references to Sections or Articles means reference to
such Section or Article in this Indenture, unless stated otherwise; and
(8) whenever in this Indenture or the Securities it is
provided that the principal amount with respect to a Security shall be
paid, such provision shall be deemed to require (whether or not so
expressly stated) the simultaneous payment of any accrued and unpaid
26
interest to the date of payment on such Security payable pursuant to
paragraph 1 of the Securities.
ARTICLE II
THE SECURITIES
SECTION 2.1. Form and Dating.
(a) The Securities and the Trustee's certificate of
authentication in respect thereof shall be substantially in the form of Exhibit
A hereto, which Exhibit is part of this Indenture. The Securities may have
notations, legends or endorsements required by law, stock exchange rule or
usage. The Issuers shall approve the form of the Securities and any notation,
legend or endorsement on them. Any such notations, legends or endorsements not
contained in the form of Security attached as Exhibit A hereto shall be
delivered in writing to the Trustee. Each Security shall be dated the date of
its authentication.
The terms and provisions contained in the forms of Securities
shall constitute, and are hereby expressly made, a part of this Indenture and,
to the extent applicable, the Issuers and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby.
(b) Securities issued in global form shall be
substantially in the form of Exhibit A-1 or A-2 attached hereto (including the
Global Security Legend thereon and the "Schedule of Exchanges of Interests in
the Global Security" attached thereto). Securities issued in definitive form
shall be substantially in the form of Exhibit A-1 attached hereto (but without
the Global Security Legend thereon and without the "Schedule of Exchanges of
Interests in the Global Security" attached thereto). Each Global Security shall
represent such of the outstanding Securities as shall be specified therein and
each shall provide that it shall represent the aggregate principal amount of
outstanding Securities from time to time endorsed thereon and that the aggregate
principal amount of outstanding Securities represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Security to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Securities
represented thereby shall be made by the Trustee in accordance with instructions
given by the Holder thereof as required by Section 2.6 hereof.
(c) Securities offered and sold in reliance on Regulation
S shall be issued initially in the form of the Regulation S Temporary Global
Security, which shall be deposited on behalf of the purchasers of the Securities
represented thereby with the Trustee, as custodian for The Depository Trust
Company in New York, New York, and registered in the name of the Depositary or
the nominee of the Depositary for the accounts of designated agents holding on
behalf of Euroclear or Clearstream, duly executed by the Issuers and
authenticated by the Trustee as hereinafter provided. The Restricted Period
shall be terminated upon the receipt by the Trustee of (i) a written certificate
from Euroclear and Clearstream certifying that they have received certification
of non-United States beneficial ownership of 100% of the aggregate principal
amount at maturity of the Regulation S Temporary Global Security (except to the
extent of any beneficial owners thereof who acquired an interest therein during
the Restricted
27
Period pursuant to another exemption from registration under the Securities Act
and who shall take delivery of a beneficial ownership interest in a 144A Global
Security bearing a Private Placement Legend, all as contemplated by (Section
2.6(a)(ii) hereof), and (ii) an Officers' Certificate from the Issuers.
Following the termination of the Restricted Period, beneficial interests in the
Regulation S Temporary Global Security shall be exchanged for beneficial
interests in Regulation S Permanent Global Securities pursuant to the Applicable
Procedures. Simultaneously with the authentication of Regulation S Permanent
Global Securities, the Trustee shall cancel the Regulation S Temporary Global
Security. The aggregate principal amount of the Regulation S Temporary Global
Security and the Regulation S Permanent Global Securities may from time to time
be increased or decreased by adjustments made on the records of the Trustee and
the Depositary or its nominee, as the case may be, in connection with transfers
of interest as hereinafter provided.
(d) The provisions of the "Operating Procedures of the
Euroclear System" and "Terms and Conditions Governing Use of Euroclear" and the
"General Terms and Conditions of Cedel Bank" and "Customer Handbook" of
Clearstream shall be applicable to transfers of beneficial interests in the
Regulation S Temporary Global Note and the Regulation S Permanent Global Notes
that are held by Participants through Euroclear or Clearstream.
SECTION 2.2. Execution and Authentication.
One Officer shall sign the Securities for each of the Issuers
by manual or facsimile signature.
If an Officer whose signature is on a Security was an Officer
at the time of such execution but no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless and
the Issuers shall nevertheless be bound by the terms of the Securities and this
Indenture.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security but
such signature shall be conclusive evidence that the Security has been
authenticated pursuant to the terms of this Indenture.
The Trustee shall authenticate Securities for original issue
on the date of this Indenture an aggregate principal amount of $325,000,000,
upon a Company Order of the Issuers. The written order of the Issuers shall
specify the amount of Securities to be authenticated and the date on which the
Securities are to be authenticated. The aggregate principal amount of Securities
outstanding at any time is unlimited. Upon the written order of the Issuers, the
Trustee shall authenticate Securities in substitution of Securities originally
issued to reflect any name change of either Issuer.
The Trustee may appoint an authenticating agent acceptable to
the Issuers to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Issuers, any Affiliate of the Issuers,
or any of their respective Subsidiaries.
28
Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. Interest
shall be payable in the manner and at the times specified in the form of
Securities attached hereto.
SECTION 2.3. Registrar and Paying Agent.
The Issuers shall maintain an office or agency in the Borough
of Manhattan, The City of New York, where Securities may be presented for
registration of transfer or for exchange ("Registrar") and an office or agency
where Securities may be presented for payment ("Paying Agent") and where notices
and demands to or upon the Issuers in respect of the Securities may be served.
The Company may act as Registrar or Paying Agent, except that, for the purposes
of Articles III, VIII, XI and Section 4.14 and as otherwise specified in this
Indenture, neither the Company nor any Affiliate of the Company shall act as
Paying Agent. The Registrar shall keep a register of the Securities and of their
transfer and exchange. The Issuers may have one or more co-Registrars and one or
more additional Paying Agents. The term "Paying Agent" includes any additional
Paying Agent. The Issuers hereby initially appoint the Trustee as Registrar and
Paying Agent, and the Trustee hereby agrees so to act.
The Issuers may enter into an appropriate written agency
agreement with any Agent not a party to this Indenture, which agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Issuers shall promptly notify the Trustee in writing of the name and address of
any such Agent. If the Issuers fail to maintain a Registrar or Paying Agent, the
Trustee shall act as such.
The Issuers initially appoint The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Securities.
The Issuers initially appoint the Trustee to act as Registrar,
Paying Agent and Securities Custodian with respect to the Global Securities.
SECTION 2.4. Paying Agent to Hold Assets in Trust.
The Issuers shall require each Paying Agent other than the
Trustee to agree in writing that each Paying Agent shall hold in trust for the
benefit of the Holders or the Trustee all assets held by the Paying Agent for
the payment of principal of, premium, if any, or interest and Additional
Interest, if any, on, the Securities (whether such assets have been distributed
to it by the Issuers or any other obligor on the Securities), and shall promptly
notify the Trustee in writing of any Default in making any such payment. If
either of the Issuers or a Subsidiary of the Issuers acts as Paying Agent, it
shall segregate such assets and hold them as a separate trust fund for the
benefit of the Holders or the Trustee. The Issuers at any time may require a
Paying Agent to distribute all assets held by it to the Trustee and account for
any assets disbursed and the Trustee may at any time during the continuance of
any Payment Default, upon written request to a Paying Agent, require such Paying
Agent to distribute all assets held by it to the Trustee and to account for any
assets distributed. Upon distribution to the Trustee of all assets that shall
have been delivered by the Issuers to the Paying Agent, the Paying Agent (if
other than the Company) shall have no further liability for such assets.
29
SECTION 2.5. Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders. If the Trustee is not the Registrar, the Issuers shall
furnish to the Trustee on or before the third Business Day preceding each
Interest Payment Date and at such other times as the Trustee may request in
writing a list in such form and as of such date as the Trustee reasonably may
require of the names and addresses of Holders.
SECTION 2.6. Transfer and Exchange.
(a) Transfer and Exchange of Global Securities. A Global
Security may not be transferred as a whole except by the Depositary to a nominee
of the Depositary, by a nominee of the Depositary to the Depositary or to
another nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global
Securities shall be exchanged by the Company for Definitive Securities if (i)
the Issuers deliver to the Trustee notice from the Depositary that it is
unwilling or unable to continue to act as Depositary or that it is no longer a
clearing agency registered under the Exchange Act and, in either case, a
successor Depositary is not appointed by the Issuers within 90 days after the
date of such notice from the Depositary; (ii) the Issuers in their sole
discretion determines that the Global Securities (in whole but not in part)
should be exchanged for Definitive Securities and delivers a written notice to
such effect to the Trustee; provided that in no event shall the Regulation S
Temporary Global Security be exchanged by the Issuers for Definitive Securities
prior to (x) the expiration of the Restricted Period and (y) the receipt by the
Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under
the Securities Act; or (iii) there shall have occurred and be continuing a
Default or Event of Default with respect to the Securities. Upon the occurrence
of any of the preceding events in (i), (ii) or (iii) above, Definitive
Securities shall be issued in such names as the Depositary shall instruct the
Trustee. Global Securities also may be exchanged or replaced, in whole or in
part, as provided in Sections 2.7 and 2.10 hereof. Every Security authenticated
and delivered in exchange for, or in lieu of, a Global Security or any portion
thereof, pursuant to this Section 2.6 or Section 2.7 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Security. A
Global Security may not be exchanged for another Security other than as provided
in this Section 2.6(a), however, beneficial interests in a Global Security may
be transferred and exchanged as provided in Section 2.6(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the
Global Securities. The transfer and exchange of beneficial interests in the
Global Securities shall be effected through the Depositary, in accordance with
the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Securities shall be subject to restrictions
on transfer comparable to those set forth herein to the extent required by the
Securities Act. Transfers of beneficial interests in the Global Securities also
shall require compliance with either subparagraph (i) or (ii) below, as
applicable, as well as one or more of the other following subparagraphs, as
applicable:
(i) Transfer of Beneficial Interests in the Same Global
Security. Beneficial interests in any Restricted Global Security may be
transferred to Persons who take
30
delivery thereof in the form of a beneficial interest in the same
Restricted Global Security in accordance with the transfer restrictions
set forth in the Private Placement Legend; provided, however, that
prior to the expiration of the Restricted Period, transfers of
beneficial interests in the Regulation S Temporary Global Security may
not be made to a U.S. Person or for the account or benefit of a U.S.
Person (other than an Initial Purchaser). Beneficial interests in any
Unrestricted Global Security may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security. No written orders or instructions shall
be required to be delivered to the Registrar to effect the transfers
described in this Section 2.6(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial
Interests in Global Securities. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section
2.6(b)(i) above, the transferor of such beneficial interest must
deliver to the Registrar either (A) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global
Security in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with
the Applicable Procedures containing information regarding the
Participant account to be credited with such increase or (B) (1) a
written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing
the Depositary to cause to be issued a Definitive Security in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Security
shall be registered to effect the transfer or exchange referred to in
(A)(1) above; provided that in no event shall Definitive Securities be
issued upon the transfer or exchange of beneficial interests in the
Regulation S Temporary Global Security prior to (x) the expiration of
the Restricted Period and (y) the receipt by the Registrar of any
certificates required pursuant to Rule 903 under the Securities Act.
Upon consummation of an Exchange Offer by the Company in accordance
with Section 2.6(f) hereof, the requirements of this Section 2.6(b)(ii)
shall be deemed to have been satisfied upon receipt by the Registrar of
the instructions contained in the Letter of Transmittal delivered by
the Holder of such beneficial interests in the Restricted Global
Securities. Upon satisfaction of all of the requirements for transfer
or exchange of beneficial interests in Global Securities contained in
this Indenture and the Securities or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount at
maturity of the relevant Global Securities pursuant to Section 2.6(i)
hereof.
(iii) Transfer of Beneficial Interests to Another
Restricted Global Security. A beneficial interest in any Restricted
Global Security may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted
Global Security if the transfer complies with the requirements of
Section 2.6(b)(ii) above and the Registrar receives the following:
(A) if the transferee shall take delivery in the
form of a beneficial interest in the 144A Global Security,
then the transferor must deliver a certificate
31
in the form of Exhibit B hereto, including the certifications
in item (1) thereof; and
(B) if the transferee shall take delivery in the
form of a beneficial interest in the Regulation S Temporary
Global Security or Regulation S Permanent Global Security,
then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2)
thereof.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Security for Beneficial Interests in the Unrestricted
Global Security. A beneficial interest in any Restricted Global
Security may be exchanged by any Holder thereof for a beneficial
interest in an Unrestricted Global Security or transferred to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security if the exchange or transfer complies with
the requirements of Section 2.6(b)(ii) above and:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder of the beneficial
interest to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
Participating Broker-Dealer, (2) a Person participating in the
distribution of the Exchange Securities or (3) a Person who is
an affiliate (as defined in Rule 144) of the Issuers;
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial
interest in a Restricted Global Security proposes to
exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Security, a
certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(a)
thereof; or
(2) if the Holder of such beneficial
interest in a Restricted Global Security proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global
Security, a certificate from such Holder in the form
of Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on
32
transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with
the Securities Act.
If any such transfer is effected pursuant to subparagraph (B)
or (D) above at a time when an Unrestricted Global Security has not yet been
issued, the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.2 hereof, the Trustee shall authenticate one or more
Unrestricted Global Securities in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Security cannot
be exchanged for, or transferred to Persons who take delivery thereof in the
form of, a beneficial interest in a Restricted Global Security.
(c) Transfer or Exchange of Beneficial Interests for
Definitive Securities.
(i) Beneficial Interests in Restricted Global Securities
to Restricted Definitive Securities. If any Holder of a beneficial
interest in a Restricted Global Security proposes to exchange such
beneficial interest for a Restricted Definitive Security or to transfer
such beneficial interest to a Person who takes delivery thereof in the
form of a Restricted Definitive Security, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such beneficial interest in
a Restricted Global Security proposes to exchange such
beneficial interest for a Restricted Definitive Security, a
certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act,
a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such beneficial interest is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(a) thereof;
(E) if such beneficial interest is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in subparagraphs
(B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable;
33
(F) if such beneficial interest is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Security to be reduced accordingly pursuant to Section 2.6(i) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Security in the appropriate
principal amount. Any Definitive Security issued in exchange for a beneficial
interest in a Restricted Global Security pursuant to this Section 2.6(c) shall
be registered in such name or names and in such authorized denomination or
denominations as the Holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Securities to
the Persons in whose names such Securities are so registered. Any Definitive
Security issued in exchange for a beneficial interest in a Restricted Global
Security pursuant to this Section 2.6(c)(i) shall bear the Private Placement
Legend and shall be subject to all restrictions on transfer contained therein.
(ii) Beneficial Interests in Regulation S Temporary Global
Security to Definitive Securities. Notwithstanding Sections
2.6(c)(i)(A) and (C) hereof, a beneficial interest in the Regulation S
Temporary Global Security may not be exchanged for a Definitive
Security or transferred to a Person who takes delivery thereof in the
form of a Definitive Security prior to (x) the expiration of the
Restricted Period and (y) the receipt by the Registrar of any
certificates required pursuant to Rule 903(b)(3)(ii)(B) under the
Securities Act, except in the case of a transfer pursuant to an
exemption from the registration requirements of the Securities Act
other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Securities
to Unrestricted Definitive Securities. A Holder of a beneficial
interest in a Restricted Global Security may exchange such beneficial
interest for an Unrestricted Definitive Security or may transfer such
beneficial interest to a Person who takes delivery thereof in the form
of an Unrestricted Definitive Security only if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder of such
beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
Participating Broker-Dealer, (2) a Person participating in the
distribution of the Exchange Securities or (3) a Person who is
an affiliate (as defined in Rule 144) of the Issuers;
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
34
(C) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial
interest in a Restricted Global Security proposes to
exchange such beneficial interest for a Definitive
Security that does not bear the Private Placement
Legend, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in
item (1)(b) thereof; or
(2) if the Holder of such beneficial
interest in a Restricted Global Security proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
Definitive Security that does not bear the Private
Placement Legend, a certificate from such Holder in
the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iv) Beneficial Interests in Unrestricted Global
Securities to Unrestricted Definitive Securities. If any Holder of a
beneficial interest in an Unrestricted Global Security proposes to
exchange such beneficial interest for a Definitive Security or to
transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Definitive Security, then, upon satisfaction
of the conditions set forth in Section 2.6(b)(ii) hereof, the Trustee
shall cause the aggregate principal amount of the applicable Global
Security to be reduced accordingly pursuant to Section 2.6(i) hereof,
and the Issuers shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive
Security in the appropriate principal amount. Any Definitive Security
issued in exchange for a beneficial interest pursuant to this Section
2.6(c)(iv) shall be registered in such name or names and in such
authorized denomination or denominations as the Holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Securities to the Persons in
whose names such Securities are so registered. Any Definitive Security
issued in exchange for a beneficial interest pursuant to this Section
2.6(c)(iv) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Securities for
Beneficial Interests.
(i) Restricted Definitive Securities to Beneficial
Interests in Restricted Global Securities. If any Holder of a
Restricted Definitive Security proposes to exchange such
35
Security for a beneficial interest in a Restricted Global Security or
to transfer such Restricted Definitive Securities to a Person who takes
delivery thereof in the form of a beneficial interest in a Restricted
Global Security, then, upon receipt by the Registrar of the following
documentation:
(A) if the Holder of such Restricted Definitive
Security proposes to exchange such Security for a beneficial
interest in a Restricted Global Security, a certificate from
such Holder in the form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Security is
being transferred to a QIB in accordance with Rule 144A under
the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such Restricted Definitive Security is
being transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904 under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such Restricted Definitive Security is
being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance
with Rule 144 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Security is
being transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in subparagraphs
(B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable;
(F) if such Restricted Definitive Security is
being transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Security is
being transferred pursuant to an effective registration
statement under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Security, increase
or cause to be increased the aggregate principal amount of, in the case
of clause (A) above, the appropriate Restricted Global Security, in the
case of clause (B) above, the 144A Global Security, and in the case of
clause (C) above, the Regulation S Global Security and in all other
cases the IAI Global Security.
(ii) Restricted Definitive Securities to Beneficial
Interests in Unrestricted Global Securities. A Holder of a Restricted
Definitive Security may exchange such
36
Security for a beneficial interest in an Unrestricted Global Security
or transfer such Restricted Definitive Security to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security only if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of
an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (1) a Participating Broker-Dealer, (2) a Person
participating in the distribution of the Exchange Securities
or (3) a Person who is an affiliate (as defined in Rule 144)
of the Company;
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such
Definitive Securities proposes to exchange
such Securities for a beneficial interest in
the Unrestricted Global Security, a
certificate from such Holder in the form of
Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(2) if the Holder of such
Definitive Securities proposes to transfer
such Securities to a Person who shall take
delivery thereof in the form of a beneficial
interest in the Unrestricted Global
Security, a certificate from such Holder in
the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.6(d)(ii), the Trustee shall cancel the
Definitive Securities and increase or cause to be increased the
aggregate principal amount of the Unrestricted Global Security.
(iii) Unrestricted Definitive Securities to Beneficial
Interests in Unrestricted Global Securities. A Holder of an
Unrestricted Definitive Security may exchange such Security for a
beneficial interest in an Unrestricted Global Security or transfer such
Definitive Securities to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Security at any
time. Upon receipt of a request for such
37
an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Security and increase or cause to be increased
the aggregate principal amount of one of the Unrestricted Global
Securities.
If any such exchange or transfer from a Definitive Security to
a beneficial interest is effected pursuant to subparagraphs (ii)(B),
(ii)(D) or (iii) above at a time when an Unrestricted Global Security
has not yet been issued, the Company shall issue and, upon receipt of
an Authentication Order in accordance with Section 2.2 hereof, the
Trustee shall authenticate one or more Unrestricted Global Securities
in an aggregate principal amount equal to the principal amount of
Definitive Securities so transferred.
(e) Transfer and Exchange of Definitive Securities for
Definitive Securities. Upon request by a Holder of Definitive Securities and
such Holder's compliance with the provisions of this Section 2.6(e), the
Registrar shall register the transfer or exchange of Definitive Securities.
Prior to such registration of transfer or exchange, the requesting Holder shall
present or surrender to the Registrar the Definitive Securities duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by its attorney, duly authorized in
writing. In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, required pursuant to
the following provisions of this Section 2.6(e).
(i) Restricted Definitive Securities to Restricted
Definitive Securities. Any Restricted Definitive Security may be
transferred to and registered in the name of Persons who take delivery
thereof in the form of a Restricted Definitive Security if the
Registrar receives the following:
(A) if the transfer shall be made pursuant to
Rule 144A under the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transfer shall be made pursuant to
Rule 903 or Rule 904 under the Securities Act, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and
(C) if the transfer shall be made pursuant to
any other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(ii) Restricted Definitive Securities to Unrestricted
Definitive Securities. Any Restricted Definitive Security may be
exchanged by the Holder thereof for an Unrestricted Definitive Security
or transferred to a Person or Persons who take delivery thereof in the
form of an Unrestricted Definitive Security if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of
an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (1) a Participating Broker-Dealer,
38
(2) a Person participating in the distribution of the Exchange
Securities or (3) a Person who is an affiliate (as defined in
Rule 144) of the Company;
(B) any such transfer is effected pursuant to
the Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such
Restricted Definitive Securities proposes to
exchange such Securities for an Unrestricted
Definitive Security, a certificate from such
Holder in the form of Exhibit C hereto,
including the certifications in item (1)(d)
thereof; or
(2) if the Holder of such
Restricted Definitive Securities proposes to
transfer such Securities to a Person who
shall take delivery thereof in the form of
an Unrestricted Definitive Security, a
certificate from such Holder in the form of
Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Securities to Unrestricted
Definitive Securities. A Holder of Unrestricted Definitive Securities
may transfer such Securities to a Person who takes delivery thereof in
the form of an Unrestricted Definitive Security. Upon receipt of a
request to register such a transfer, the Registrar shall register the
Unrestricted Definitive Securities pursuant to the instructions from
the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange
Offer in accordance with the Registration Rights Agreement, the Company shall
issue and, upon receipt of an Authentication Order in accordance with Section
2.2, the Trustee shall authenticate (i) one or more Unrestricted Global
Securities in an aggregate principal amount equal to the principal amount of the
beneficial interests in the Restricted Global Securities tendered for acceptance
by Persons that certify in the applicable Letters of Transmittal that (x) they
are not Participating Broker-Dealers, (y) they are not participating in a
distribution of the Exchange Securities and (z) they are not affiliates (as
defined in Rule 144) of the Issuers, and accepted for exchange in the Exchange
Offer and (ii) Definitive Securities in an aggregate principal amount equal to
the principal amount of the Restricted Definitive Securities accepted for
exchange in the Exchange Offer. Concurrently with the issuance of such
Securities, the Trustee shall cause the aggregate
39
principal amount of the applicable Restricted Global Securities to be reduced
accordingly, and the Issuers shall execute and the Trustee shall authenticate
and deliver to the Persons designated by the Holders of Definitive Securities so
accepted Definitive Securities in the appropriate principal amount. Any
Securities that remain outstanding after the consummation of the Exchange Offer,
and Exchange Securities issued in connection with the Exchange Offer, shall be
treated as a single class of securities under this Indenture.
(g) Legends. The following legends shall appear on the
face of all Global Securities and Definitive Securities issued under this
Indenture unless specifically stated otherwise in the applicable provisions of
this Indenture.
(i) Private Placement Legend. Except as permitted below,
each Global Security and each Definitive Security (and all Securities
issued in exchange therefor or substitution thereof) shall bear the
legend in substantially the following form:
"THIS SECURITY AND THE RELATED GUARANTEE (TOGETHER,
"THE SECURITY") HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER
HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF
CENTENNIAL COMMUNICATIONS CORP., CENTENNIAL PUERTO RICO
OPERATIONS CORP. AND CENTENNIAL CELLULAR OPERATING CO. LLC
(COLLECTIVELY, THE "ISSUERS") THAT THIS SECURITY MAY NOT BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE
SECOND ANNIVERSARY OF THE ISSUANCE HEREOF (OR ANY PREDECESSOR
SECURITY HERETO) OR (Y) BY ANY HOLDER THAT WAS AN AFFILIATE OF
THE ISSUERS AT ANY TIME DURING THE THREE MONTHS PRECEDING THE
DATE OF SUCH TRANSFER, IN EITHER CASE, OTHER THAN (1) TO THE
ISSUERS, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A'),
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A,
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR
ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON
THE REVERSE OF THIS SECURITY), (4) TO AN INSTITUTION THAT IS
AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON
THE REVERSE OF THIS SECURITY) THAT IS ACQUIRING THIS SECURITY
FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A
40
CERTIFICATE WHICH MAY BE OBTAINED FROM THE ISSUERS OR THE
TRUSTEE IS DELIVERED BY THE TRANSFEREE TO THE ISSUERS AND
TRUSTEE, (5) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER
THE SECURITIES ACT OR (6) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES. AN INSTITUTIONAL ACCREDITED INVESTOR
HOLDING THIS SECURITY AGREES THAT IT WILL FURNISH TO THE
ISSUERS AND THE TRUSTEE SUCH CERTIFICATES AND OTHER
INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY
TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING
RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE ISSUERS THAT IT
IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A, (2) AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR"
AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR
INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) A NON-U.S.
PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN
ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2) OF
RULE 902 UNDER THE SECURITIES ACT) REGULATION S UNDER THE
SECURITIES ACT."
Notwithstanding the foregoing, any Global Security or Definitive Security issued
pursuant to subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii),
(e)(iii) or (f) of this Section 2.6 (and all Securities issued in exchange
therefor or substitution thereof) shall not bear the Private Placement Legend.
(ii) Global Security Legend. Each Global Security shall
bear a legend in substantially the following form:
THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN
THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY
FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT
(I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.6 OF THE INDENTURE, (II) THIS
GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 2.6(a) OF THE INDENTURE, (III) THIS GLOBAL
SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN CONSENT OF THE COMPANY.
41
(iii) Regulation S Temporary Global Security Legend. The
Regulation S Temporary Global Security shall bear a legend in
substantially the following form:
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL
SECURITY, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS
EXCHANGE FOR DEFINITIVE SECURITIES, ARE AS SPECIFIED IN THE
INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL
SECURITY SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST
HEREON.
(h) Cancellation and/or Adjustment of Global Securities.
At such time as all beneficial interests in a particular Global Security have
been exchanged for Definitive Securities or a particular Global Security has
been redeemed, repurchased or canceled in whole and not in part, each such
Global Security shall be returned to or retained and canceled by the Trustee in
accordance with Section 2.11 hereof. At any time prior to such cancellation, if
any beneficial interest in a Global Security is exchanged for or transferred to
a Person who shall take delivery thereof in the form of a beneficial interest in
another Global Security or for Definitive Securities, the principal amount of
Securities represented by such Global Security shall be reduced accordingly and
an endorsement shall be made on such Global Security by the Trustee or by the
Depositary at the direction of the Trustee to reflect such reduction; and if the
beneficial interest is being exchanged for or transferred to a Person who shall
take delivery thereof in the form of a beneficial interest in another Global
Security, such other Global Security shall be increased accordingly and an
endorsement shall be made on such Global Security by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and
Exchanges.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall
authenticate Global Securities and Definitive Securities upon
the Issuers' order or at the Registrar's request.
(ii) No service charge shall be made to a Holder
of a beneficial interest in a Global Security or to a Holder
of a Definitive Security for any registration of transfer or
exchange, but the Issuers may require payment of a sum
sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon
exchange or transfer).
(iii) The Registrar shall not be required to
register the transfer of or exchange any Security selected for
redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part.
(iv) All Global Securities and Definitive
Securities issued upon any registration of transfer or
exchange of Global Securities or Definitive Securities shall
be the valid and legally binding obligations of the Company,
evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Global
42
Securities or Definitive Securities surrendered upon such
registration of transfer or exchange.
(v) The Issuers shall not be required (A) to
issue, to register the transfer of or to exchange any
Securities during a period beginning at the opening of
business 15 days before the day of any selection of Securities
for redemption under Section 3.3 hereof and ending at the
close of business on the day of selection, (B) to register the
transfer of or to exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part or (C) to register the
transfer of or to exchange a Security between a Record Date
and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the
registration of a transfer of any Security, the Trustee, any
Agent and the Company may deem and treat the Person in whose
name any Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of
and interest on such Securities and for all other purposes,
and none of the Trustee, any Agent or the Company shall be
affected by notice to the contrary.
(vii) The Trustee shall authenticate Global
Securities and Definitive Securities in accordance with the
provisions of Section 2.2 hereof.
(viii) All certifications, certificates and
Opinions of Counsel required to be submitted to the Registrar
pursuant to this Section 2.6 to effect a registration of
transfer or exchange may be submitted by facsimile with the
original to follow by first class mail.
SECTION 2.7. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if
the Holder of a Security claims and submits an affidavit or other evidence,
satisfactory to the Trustee, to the Trustee to the effect that the Security has
been lost, destroyed or wrongfully taken, the Issuers shall issue and the
Trustee shall authenticate a replacement Security if the Trustee's requirements
are met. If required by the Trustee or the Issuers, such Holder must provide an
indemnity bond or other indemnity, sufficient in the judgment of both the
Issuers and the Trustee, to protect the Issuers, the Trustee or any Agent from
any loss which any of them may suffer if a Security is replaced. The Issuers may
charge such Holder for its reasonable, out-of-pocket expenses in replacing a
Security.
Every replacement Security is an additional obligation of the
Issuers.
SECTION 2.8. Outstanding Securities.
Securities outstanding at any time are all the Securities that
have been authenticated by the Trustee (including any Security represented by a
Global Security) except those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Security effected by
the Trustee hereunder and those described in this Section 2.8 as not
43
outstanding. A Security does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Security, except as provided in Section
2.9.
If a Security is replaced pursuant to Section 2.7 (other than
a mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security ceases to be outstanding
upon surrender of such Security and replacement thereof pursuant to Section 2.7.
If on a Redemption Date or the Maturity Date the Paying Agent
(other than the Issuers or an Affiliate of the Issuers) holds cash sufficient to
pay all of the principal and interest due on the Securities payable on that date
and payment of the Securities called for redemption or payable on such Maturity
Date is not otherwise prohibited pursuant to this Indenture, then on and after
that date such Securities cease to be outstanding and interest on them ceases to
accrue.
SECTION 2.9. Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, amendment, supplement,
waiver or consent, Securities owned by the Issuers or Affiliates of the Issuers
shall be disregarded, except that, for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, amendment,
supplement, waiver or consent, only Securities that the Trustee knows are so
owned shall be disregarded.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the
Issuers may prepare and the Trustee shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of definitive Securities
but may have variations that the Issuers reasonably and in good faith consider
appropriate for temporary Securities. Without unreasonable delay, the Issuers
shall prepare and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities. Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
permanent Securities authenticated and delivered hereunder.
SECTION 2.11. Cancellation.
The Issuers at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee, or at the direction of the Trustee, the Registrar or the Paying
Agent (other than the Issuers or an Affiliate of the Issuers), and no one else,
shall cancel and, at the written direction of the Issuers, shall dispose of all
Securities surrendered for transfer, exchange, payment or cancellation. Subject
to Section 2.7, the Issuers may not issue new Securities to replace Securities
that have been paid or delivered to the Trustee for cancellation. No Securities
shall be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section 2.11, except as expressly permitted in the form of
Securities and as permitted by this Indenture.
44
SECTION 2.12. Defaulted Interest.
Interest or Additional Interest, if any, 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 Record Date
for such interest.
Any interest or Additional Interest, if any, on any Security
which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date plus, to the extent lawful, any interest or Additional
Interest, if any, payable on the defaulted interest (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder on the
relevant Record Date, and such Defaulted Interest may be paid by the Issuers, at
their election in each case, as provided in clause (1) or (2) below:
(1) The Issuers may elect to make payment of any
Defaulted Interest to the persons in whose names the Securities (or
their respective predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Issuers
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Issuers shall deposit with the
Trustee an amount of cash 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 cash when deposited to be held in trust for the
benefit of the persons entitled to such Defaulted Interest as provided
in this clause (1). 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 Issuers of such Special Record Date and, in the
name and at the expense of the Issuers, 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 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 mailed as aforesaid, such Defaulted Interest shall be paid to the
persons in whose names the Securities (or their respective predecessor
Securities) are registered on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).
(2) The Issuers may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Issuers to the Trustee of the proposed
payment pursuant to this clause, such manner shall be deemed
practicable by the Trustee in its sole discretion.
45
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 2.13. CUSIP Numbers.
Neither the Issuers nor the Trustee shall have any
responsibility for any defect in the CUSIP number that appears on any Security,
check, advice of payment or redemption notice, and any such document may contain
a statement to the effect that CUSIP numbers have been assigned by an
independent service for convenience of reference and that neither the Issuers
nor the Trustee shall be liable for any inaccuracy in such numbers.
ARTICLE III
REDEMPTION
SECTION 3.1. Rights of Redemption.
(a) In addition to the provisions of Sections 4.14 and
11.1 hereof, the Securities are subject to redemption at any time on or after
February 1, 2009, at the option of the Issuers, in whole or in part, subject to
the conditions, and at the Redemption Prices, specified in the form of Security
attached hereto as Exhibit A, together with accrued and unpaid interest, if any,
to the Redemption Date (subject to the rights of Holders on relevant Record
Dates to receive interest due on an Interest Payment Date).
(b) In addition, at any time prior to February 1, 2007,
the Issuers, at their option, may use the net cash proceeds of one or more
Public Equity Offerings or Strategic Equity Offerings in a single transaction or
a series of related transactions to redeem up to an aggregate of 35% of the
aggregate principal amount of Securities originally issued under this Indenture
at a Redemption Price equal to 108.125% of the aggregate principal amount
thereof, plus accrued and unpaid interest thereon, if any, to the Redemption
Date (subject to the rights of Holders on relevant Record Dates to receive
interest due on an Interest Payment Date); provided that at least 65% of the
initial aggregate principal amount of Securities remains outstanding immediately
after the occurrence of such redemption; provided further that any such
redemption with respect to a Strategic Equity Offering may not occur in
connection with or after the occurrence of a Change of Control; and provided
further that any such net proceeds received by Centennial are first contributed
to the Company as a capital contribution prior to such redemption. In order to
effect the foregoing redemption, the Issuers must mail a notice of redemption no
later than 30 days after the closing of the related Public Equity Offering or
Strategic Equity Offering and must consummate such redemption within 60 days of
the closing of the Public Equity Offering or Strategic Equity Offering.
(c) In addition, the Securities may be redeemed upon a
Change of Control at any time prior to February 1, 2009, at the option of the
Issuers, in whole and not in part, within 60 days of such Change of Control.
Prior to February 1, 2006, the Redemption Price will be equal to (i) 108.125% of
the principal amount of the Securities, plus (ii) accrued interest to the
Redemption Date (subject to the rights of Holders on relevant Record Dates to
receive interest due on an Interest Payment Date). On or after February 1, 2006,
but prior to February 1, 2009,
46
the Redemption Price will be equal to (i) 100% of the principal amount of the
Securities, plus (ii) accrued interest to the Redemption Date (subject to the
rights of Holders on relevant Record Dates to receive interest due on an
Interest Payment Date) plus (iii) the Applicable Premium, if any.
(d) In addition, the Securities may be redeemed at any
time prior to February 1, 2006, at the option of the Issuers, in whole or in
part, with the Net Cash Proceeds of a sale of assets that would be considered an
Asset Sale, within 60 days of such sale of assets at a Redemption Price equal to
(i) 108.125% of the principal amount of the Securities, plus (ii) accrued
interest to the Redemption Date (subject to the rights of Holders on relevant
Record Dates to receive interest due on an Interest Payment Date); provided that
any such redemption shall be for (A) Securities with an aggregate principal
amount of at least $50,000,000 (provided, however, that immediately after any
such redemption, Securities with an aggregate principal amount of at least
$150,000,000 remain outstanding) or (B) all of the outstanding aggregate
principal amount of the Securities.
SECTION 3.2. Notices to Trustee.
If the Issuers elect to redeem Securities pursuant to
Paragraph 5 of the Securities and Section 3.1 of this Indenture, they shall
notify the Trustee in writing of the Redemption Date and the principal amount of
Securities to be redeemed and whether they want the Trustee to give notice of
redemption to the Holders.
If the Issuers elect to reduce the principal amount of
Securities to be redeemed pursuant to Paragraph 5 of the Securities by crediting
against any such redemption Securities they have not previously delivered to the
Trustee for cancellation, they shall so notify the Trustee of the amount of the
reduction and deliver such Securities with such notice, provided that no
Securities issued on the date of this Indenture received by the Issuers in
exchange for Exchange Securities may be made the basis for such credit.
The Issuers shall give each notice to the Trustee provided for
in this Section 3.2 at least 45 days before the Redemption Date (unless a
shorter notice shall be satisfactory to the Trustee). Any such notice may be
canceled at any time prior to notice of such redemption being mailed to any
Holder and shall thereby be void and of no effect.
SECTION 3.3. Selection of Securities to Be Redeemed.
If less than all of the Securities are to be redeemed pursuant
to Paragraph 5 thereof, the Trustee shall select the Securities or portions
thereof for redemption in compliance with the requirements of the principal
national securities exchange, if any, on which the Securities are listed, or if
the Securities are not so listed, on a pro rata basis, by lot or by any other
manner as the Trustee shall determine to be fair and appropriate; provided that
any such redemption pursuant to the provisions relating to a Public Equity
Offering or a Strategic Equity Offering shall be made on a pro rata basis or on
as nearly a pro rata basis as practicable (subject to the procedures of any
applicable Depositary, legal and stock exchange requirements). The Trustee shall
make the selection from the Securities outstanding and not previously called for
redemption and shall promptly notify the Issuers in writing of the Securities
selected for
47
redemption and, in the case of any Security selected for partial redemption, the
principal amount thereof to be redeemed. The Securities may be redeemed in part
pursuant to this Section 3.3 in multiples of $1,000 only. The Trustee may select
for redemption portions (equal to $1,000 or any integral multiple thereof) of
the principal of Securities that have denominations larger than $1,000.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption.
SECTION 3.4. Notice of Redemption.
At least 30 days and not more than 60 days before a Redemption
Date, the Issuers shall mail a notice of redemption by first-class mail, postage
prepaid, to the Trustee and each Holder whose Securities are to be redeemed to
such Holder's last address as then shown upon the books of the Registrar. At the
Issuers' request, the Trustee shall give the notice of redemption in the
Issuers' names and at the Issuers' expense. Each notice for redemption shall
identify the Securities to be redeemed and shall state:
(A) the Redemption Date;
(B) the Redemption Price, including the amount
of accrued and unpaid interest, if any, to be paid upon such
redemption;
(C) the name, address and telephone number of
the Paying Agent;
(D) that Securities called for redemption must
be surrendered to the Paying Agent at the address specified in
such notice to collect the Redemption Price;
(E) that, unless (a) the Issuers default in
their obligation to deposit cash with the Paying Agent in
accordance with Section 3.6 hereof or (b) such redemption
payment is prohibited pursuant to this Indenture, interest on
Securities (or portion thereof) called for redemption ceases
to accrue on and after the Redemption Date and the only
remaining right of the Holders of such Securities is to
receive payment of the Redemption Price, including any accrued
and unpaid interest to the Redemption Date, upon surrender to
the Paying Agent of the Securities called for redemption and
to be redeemed;
(F) if any Security is being redeemed in part,
the portion of the principal amount, equal to $1,000 or any
integral multiple thereof, of such Security to be redeemed and
that, after the Redemption Date, and upon surrender of such
Security, a new Security or Securities in aggregate principal
amount equal to the unredeemed portion thereof will be issued;
(G) if less than all the Securities are to be
redeemed, the identification of the particular Securities (or
portion thereof) to be redeemed, as well as the aggregate
principal amount of such Securities to be redeemed and the
aggregate principal amount of Securities to be outstanding
after such partial redemption;
(H) the CUSIP number of the Securities to be
redeemed; and
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(I) that the notice is being sent pursuant to
this Section 3.4 and pursuant to the optional redemption
provisions of Paragraph 5 of the Securities.
SECTION 3.5. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.4, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price, including any accrued and unpaid interest and
Additional Interest, if any, to the Redemption Date. Upon surrender to the
Trustee or Paying Agent, such Securities called for redemption shall be paid at
the Redemption Price, including interest and Additional Interest, if any,
accrued and unpaid to the Redemption Date; provided that if the Redemption Date
is after a regular Record Date and on or prior to the Interest Payment Date, the
accrued interest shall be payable to the Holder of the redeemed Securities
registered on the relevant Record Date; and provided further that if a
Redemption Date is a Legal Holiday, payment shall be made on the next succeeding
Business Day and no interest shall accrue for the period from such Redemption
Date to such succeeding Business Day.
SECTION 3.6. Deposit of Redemption Price.
By 10:00 a.m. on, or prior to, the Redemption Date, the
Issuers shall deposit with the Paying Agent (other than the Issuers or an
Affiliate of the Issuers) cash sufficient to pay the Redemption Price of,
including any accrued and unpaid interest on, all Securities to be redeemed on
such Redemption Date (other than Securities or portions thereof called for
redemption on that date that have been delivered by the Issuers to the Trustee
for cancellation). The Paying Agent shall promptly return to the Company any
cash so deposited which is not required for that purpose.
If the Issuers comply with the preceding paragraph and the
other provisions of this Article III and payment of the Securities called for
redemption is not prohibited under this Indenture, interest on the Securities to
be redeemed will cease to accrue on the applicable Redemption Date, whether or
not such Securities are presented for payment. Notwithstanding anything herein
to the contrary, if any Security surrendered for redemption in the manner
provided in the Securities shall not be so paid upon surrender for redemption
because of the failure of the Issuers to comply with the preceding paragraph,
interest shall continue to accrue and be paid from the Redemption Date until
such payment is made on the unpaid principal, and, to the extent lawful, on any
interest not paid on such unpaid principal, in each case at the rate and in the
manner provided in Section 4.1 hereof and the Securities.
SECTION 3.7. Securities Redeemed in Part.
Upon surrender of a Security that is to be redeemed in part,
the Issuers shall execute and the Trustee shall authenticate and deliver to the
Holder, without service charge to the Holder, a new Security or Securities equal
in principal amount to the unredeemed portion of the Security surrendered.
49
ARTICLE IV
COVENANTS
SECTION 4.1. Payment of Securities.
The Issuers shall pay the principal of, premium, if any, and
interest and Additional Interest, if any, on the Securities on the dates and in
the manner provided in the Securities. An installment of principal of, premium,
if any, or interest and Additional Interest, if any, on the Securities shall be
considered paid by the Issuers on the date it is due if the Trustee or Paying
Agent (other than the Issuers or an Affiliate of the Issuers) holds for the
benefit of the Holders, on or before 10:00 a.m. New York City time on that date,
cash deposited and designated for and sufficient to pay the installment. The
Issuers shall pay interest on overdue principal, premium, if any, and on overdue
installments of interest and Additional Interest, if any, at the rate specified
in the Securities compounded semi-annually, to the extent lawful.
SECTION 4.2. Maintenance of Office or Agency.
The Issuers shall maintain in the Borough of Manhattan, The
City of New York, an office or agency where Securities may be presented or
surrendered for payment, where Securities may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Issuers in
respect of the Securities and this Indenture may be served. The Issuers shall
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Issuers 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 address of the Trustee set forth in Section 12.2.
The Issuers may also from time to time designate one or more other offices or
agencies where the Securities may be presented or surrendered for any or all
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
Issuers of their obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Issuers shall give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency. The Issuers
hereby initially designate the corporate trust office of the Trustee in New York
City as such office.
SECTION 4.3. Limitation on Restricted Payments.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment,
if, immediately prior or after giving effect thereto (a) a Default or an Event
of Default would exist, (b) the Company would not be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Debt to Annual EBITDA Ratio
provision set forth in the second paragraph of Section 4.11, (c) the Company
would not be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Priority and Pari Passu Debt to Cash Flow Ratio set forth in
Section 4.9 or (d) the aggregate amount of all Restricted Payments made by the
Company and its Restricted Subsidiaries, including such proposed Restricted
Payment (if not made in cash, then the Fair Market Value of any property used
therefor) from and after the Senior Subordinated Notes Issue Date and on or
prior to the date of such Restricted Payment, shall exceed the sum of (i) the
amount determined by
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subtracting (x) 1.65 times the aggregate Consolidated Interest Expense of the
Company for the period (taken as one accounting period) from the first day of
the first quarter commencing after the Senior Subordinated Notes Issue Date to
the last day of the last full fiscal quarter prior to the date of the proposed
Restricted Payment (the "Computation Period") from (y) Consolidated EBITDA of
the Company for the Computation Period, plus (ii) the aggregate Net Proceeds
received by the Company from the sale (other than to a Subsidiary of the
Company) of its Qualified Capital Stock after the Senior Subordinated Notes
Issue Date and on or prior to the date of such Restricted Payment (and in any
case other than Excluded Contributions, Excluded Cash Contributions and
Investment Equity), plus (iii) 100% of the aggregate amount of non-recourse
contributions to the capital of the Company and its Restricted Subsidiaries
since the Senior Subordinated Notes Issue Date (in any case other than Excluded
Contributions, Excluded Cash Contributions and Investment Equity), plus (iv) to
the extent not otherwise included in clauses (i), (ii) and (iii) above, an
amount equal to the net reduction in Investments in Unrestricted Subsidiaries
resulting from payments of dividends, repayment of loans or advances, or other
transfers of assets, in each case to the Company or any Restricted Subsidiary
from Unrestricted Subsidiaries, or from redesignations of Unrestricted
Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the
definition of "Investments") since the Senior Subordinated Notes Issue Date plus
(v) $25,000,000.
Notwithstanding the foregoing, the provisions set forth in
clause (b), (c) or (d) of the immediately preceding paragraph will not prohibit
(the actions described below and the provision set forth in clause (a) of the
immediately preceding paragraph will not prohibit the payment described in
clause (i) below) (i) the payment of any dividend within 60 days after the date
of its declaration if such dividend could have been made on the date of its
declaration in compliance with the foregoing provisions, (ii) the redemption,
defeasance, repurchase or other acquisition or retirement of any Subordinated
Indebtedness or Capital Stock of the Company or its Restricted Subsidiaries
either in exchange for or out of the Net Proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Company) of Qualified Capital
Stock (in the case of any redemption, defeasance, repurchase or other
acquisition or retirement of any Subordinated Indebtedness or Capital Stock of
the Company or its Restricted Subsidiaries) or Subordinated Indebtedness (in the
case of any redemption, defeasance, repurchase or other acquisition or
retirement of any Indebtedness of the Company or its Restricted Subsidiaries) of
the Company, Centennial PR or any Guarantor, (iii) loans, advances, dividends or
distributions by the Company to Centennial or any of its Restricted Subsidiaries
in order to fund the payment of the management or other similar fees to equity
investors (or their Affiliates) in Centennial permitted by Section 4.10, (iv)
the purchase, redemption or other acquisition or retirement for value of Capital
Stock of Centennial (or loans, advances, dividends, or distributions by the
Company to Centennial to fund the foregoing) from employees, former employees,
directors, former directors, consultants and former consultants of Centennial or
any of its Subsidiaries pursuant to the terms of the agreements pursuant to
which such Capital Stock was acquired in an amount not to exceed $2,500,000 in
the aggregate in any calendar year (with unused amounts in any calendar year
being carried over to the next two succeeding calendar years; provided further
that such amount in any calendar year may be increased by an amount not to
exceed (a) the cash proceeds from the sale of Capital Stock to members of
management, directors or consultants that occurs after the Senior Subordinated
Notes Issue Date plus (b) the cash proceeds of key man life insurance policies
received by the Company and its Restricted Subsidiaries after the Senior
Subordinated Notes Issue Date; (v) repurchases of Capital Stock of the Company
deemed to
51
occur upon exercise of stock options if such Capital Stock represents a portion
of the exercise price of such options, (vi) the repurchase or other repayment of
Indebtedness subordinated in right of payment to the Securities upon a Change of
Control or Asset Sale to the extent required by the agreement governing such
Indebtedness but only if the Issuers shall have complied with Article XI or, as
the case may be, Section 4.14 and purchased all Securities validly tendered
pursuant to the relevant offer prior to purchasing or repaying such other
Indebtedness; (vii) loans, advances, dividends or distributions by the Company
to Centennial not to exceed an amount necessary to permit Centennial to pay (a)
its costs (including all professional fees and expenses) incurred to comply with
its reporting obligations under federal or state laws or under this Indenture,
the indenture for the Senior Subordinated Notes or the indenture for the 2013
Senior Notes, (b) its other operational expenses (other than taxes) incurred in
the ordinary course of business and not exceeding $2,000,000 in any fiscal year
(with unused amounts in any fiscal year being carried over to the next two
succeeding fiscal years) and (c) its then currently due taxes attributable
solely on account of the Company and its subsidiaries or on account of the
income of Centennial related to its investments in the Company and its
subsidiaries, in each case, as a consolidated, combined or unitary filing group
(not to exceed in any event the amount of tax that the Company and the
Restricted Subsidiaries would otherwise pay if not part of such filing group);
(viii) the repurchase, redemption, defeasance, retirement, refinancing,
acquisition for value or payment of principal of any Indebtedness of the
Company, Centennial PR or any Guarantor subordinated in right of payment to the
Securities for value or payment of principal of any Indebtedness (other than
Disqualified Capital Stock) (a "refinancing") through the substantially
concurrent issuance of new Subordinated Indebtedness of the Company, Centennial
PR or any Guarantor, provided that any such new Subordinated Indebtedness (1)
shall be in a principal amount that does not exceed the principal amount so
refinanced (or, if such Subordinated Indebtedness provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration thereof, then such lesser amount as of the date of determination),
plus the lesser of (I) the stated amount of any premium or other payment
required to be paid in connection with such a refinancing pursuant to the terms
of the Indebtedness being refinanced or (II) the amount of premium or other
payment actually paid at such time to refinance the Indebtedness, plus, in
either case, the amount of expenses of the Company, Centennial PR or any
Guarantor incurred in connection with such refinancing; (2) has a final maturity
date later than the final maturity date of, and has a Weighted Average Life
equal to or greater than the Weighted Average Life of, the Indebtedness to be
refinanced; and (3) is expressly subordinated in right of payment to the
Securities or the Guarantees, as applicable, at least to the same extent as the
Indebtedness to be refinanced; (ix) the declaration and payment of dividends or
distributions to holders of any class or series of Disqualified Capital Stock of
the Company, Centennial, Centennial PR or any Guarantor or any Preferred Stock
of the Company's Restricted Subsidiaries that are not Guarantors issued or
incurred in accordance with Section 4.11; (x) the payment of dividends on the
Company's common equity interests following the first public offering of
Centennial's or the Company's common equity interests after the Issue Date, of
up to 6% per annum of the net cash proceeds received by the Company in such
public offering or contributed by Centennial to the Company from the net cash
proceeds of an equity offering by Centennial; (xi) loans, advances, dividends or
distributions by the Company to Centennial to fund the repurchase, retirement or
other acquisition for value of Capital Stock of Centennial in existence on the
Senior Subordinated Notes Issue Date (which shall not exceed 7.1% of the
outstanding Capital Stock of Centennial prior to January 7, 1999) and which are
not held by
52
Xxxxx Xxxxxx, Blackstone or their respective Affiliates or any members of
management of the Company or any of its Subsidiaries (including any Capital
Stock issued in respect of such Capital Stock as a result of a stock split,
recapitalization, merger, combination, consolidation or otherwise) provided that
(A) the amount per share paid under this clause (xi) shall not exceed $41.50 per
share (as such amount shall be adjusted as determined in good faith by the Board
of Directors of the Company for stock splits, stock dividends,
recapitalizations, stock recombinations, mergers, reverse stock splits,
consolidations or similar transactions) and (B) after giving effect thereto, the
Company would be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Debt to Annual EBITDA Ratio test contained in the second
paragraph of Section 4.11; (xii) Investments made with Excluded Contributions;
(xiii) the repurchase, redemption, retirement, acquisition for value or payment
of principal of, and premium on, all, or any portion of, the outstanding Senior
Subordinated Notes with the proceeds of an Incurrence of Indebtedness, other
than with borrowings under a revolving credit facility or similar arrangement
that makes credit available; provided that after giving effect to such
repurchase, redemption, retirement, acquisition or payment, the Company would be
permitted to incur at least $1.00 of additional Priority Indebtedness or Pari
Passu Indebtedness under Section 4.9; and (xiv) other Restricted Payments in an
aggregate amount not to exceed $2,000,000.
In determining the aggregate amount expended for Restricted
Payments in accordance with clause (d) of the first paragraph of this Section
4.3, 100% of the amounts expended under clauses (i), (ii) (to the extent the Net
Proceeds from the concurrent sale of Qualified Capital Stock has been added to
the aggregate Net Proceeds calculation pursuant to clause (ii) of clause (d) of
the first paragraph of this Section 4.3), (iv), (v), (ix), (x) and (xi) of the
immediately preceding paragraph shall be deducted from the amount of Restricted
Payments that can be made under clause (d) of the first paragraph of this
Section 4.3.
SECTION 4.4. Corporate and Other Existence.
Subject to Article V, each of Centennial and the Company shall
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate or other existence, as the case may be, and the
corporate or other existence of each of the Company's Restricted Subsidiaries in
accordance with the respective organizational documents of each of them and the
rights (charter and statutory) and corporate or other franchises of the Issuers
and each of the Company's Restricted Subsidiaries; provided, however, that the
Issuers shall not be required to preserve, with respect to itself, any right or
franchise, and with respect to any Restricted Subsidiaries of the Company, any
such existence, right or franchise, if the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
such entity.
SECTION 4.5. Payment of Taxes and Other Claims.
Except with respect to items which are not material to the
Company and its Subsidiaries on a consolidated basis, Centennial and the Company
shall, and the Company shall cause each of its Restricted Subsidiaries to, pay
or discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges (including
withholding taxes and any penalties, interest and additions to taxes) levied or
imposed upon Centennial, the Company or any of the Company's Restricted
Subsidiaries or any of their
53
respective properties and assets and (ii) all lawful claims, whether for labor,
materials, supplies, services or anything else, which have become due and
payable and which by law have or may become a Lien upon the property and assets
of Centennial, the Company or any of the Company's Restricted Subsidiaries;
provided, however, that Centennial, the Company and its Restricted Subsidiaries
shall not 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 and for which disputed
amounts adequate reserves have been established in accordance with GAAP.
SECTION 4.6. Maintenance of Properties and Insurance.
Centennial and the Company shall cause all material properties
used or useful to the conduct of their respective business and the business of
each of the Company's Restricted Subsidiaries to be maintained and kept in
reasonably good condition, repair and working order (reasonable wear and tear
excepted) and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in its reasonable
judgment 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 4.6 shall prevent Centennial, the Company and its
Restricted Subsidiaries from discontinuing any operation or maintenance of any
of such properties, or disposing of any of them, if such discontinuance or
disposal is in the judgment of the Board of Directors of Centennial, desirable
in the conduct of the business of such entity.
Centennial and the Company shall each provide, or cause to be
provided, for themselves and each of the Company's Restricted Subsidiaries,
insurance (including appropriate self-insurance) against loss or damage of the
kinds that, in the reasonable, good faith opinion of Centennial or the Company
is adequate and appropriate for the conduct of the business of Centennial, the
Company and such Restricted Subsidiaries, with (except for self-insurance)
reputable insurers or with the government of the United States of America or an
agency or instrumentality thereof, in such amounts, with such deductibles, and
by such methods, in the reasonable, good faith opinion of Centennial or the
Company as are adequate and appropriate for the conduct of the business of
Centennial, the Company and such Restricted Subsidiaries in a prudent manner for
entities similarly situated in the industry, unless failure to provide such
insurance (together with all other such failures) would not have a material
adverse effect on the financial condition or results of operations of
Centennial, the Company and its Restricted Subsidiaries, taken as a whole.
SECTION 4.7. Compliance Certificate; Notice of Default.
(a) The Issuers shall deliver to the Trustee within 120
days after the end of its respective fiscal year an Officers' Certificate (one
of the signers being the principal executive officer, principal financial
officer or principal accounting officer) complying with Section 314(a)(4) of the
TIA and stating that a review of its activities and the activities of its
Subsidiaries during the preceding fiscal year, as applicable, has been made
under the supervision of the signing Officers with a view to determining whether
the Issuers have kept, observed, performed and fulfilled their obligations under
this Indenture and further stating, as to each such Officer signing such
certificate, whether or not the signer knows of any failure by the Issuers or
any
54
Subsidiary of the Issuers to comply with any conditions or covenants in this
Indenture and, if such signer does know of such a failure to comply, the
certificate shall describe such failure with particularity. The Officers'
Certificate shall also notify the Trustee should the relevant fiscal year end on
any date other than the current fiscal year end date which currently is May 31.
(b) The Issuers shall, so long as any of the Securities
are outstanding, deliver to the Trustee, within five Business Days of becoming
aware of any Default, Event of Default or fact which would prohibit the making
of any payment to or by the Trustee in respect of the Securities, an Officers'
Certificate specifying such Default, Event of Default or fact and what action
the Issuers are taking or proposes to take with respect thereto. The Trustee
shall not be deemed to have knowledge of any Default, any Event of Default or
any such fact unless one of its Trust Officers receives notice thereof from the
Issuers or any of the Holders.
SECTION 4.8. Provision of Financial Statements.
Whether or not Centennial is subject to Section 13(a) or 15(d)
of the Exchange Act, so long as any Securities are outstanding, Centennial will,
to the extent permitted under the Exchange Act, file with the Commission the
annual reports, quarterly reports and other documents which Centennial would
have been required to file with the Commission pursuant to Section 13(a) or
15(d) if it were so subject, such documents to be filed with the Commission on
or prior to the date (the "Required Filing Date") by which Centennial would have
been required to file such documents if it were so subject. Centennial will also
in any event (x) within 15 days of each Required Filing Date (i) transmit by
mail to all Holders, as their names and addresses appear in the security
register, without cost to such Holders and (ii) file with the Trustee copies of
the annual reports, quarterly reports and other documents which Centennial would
have been required to file with the Commission pursuant to Section 13(a) or
15(d) of the Exchange Act as if Centennial were subject to either of such
Sections and (y) if filing such documents by Centennial with the Commission is
not permitted under the Exchange Act, promptly upon written request and payment
of the reasonable cost of duplication and delivery, supply copies of such
documents to any prospective purchaser of Securities at Centennial's cost. So
long as any of the Securities remain outstanding, Centennial will make available
to any prospective purchaser of Securities or beneficial owner of Securities in
connection with any sale thereof the information required by Rule 144A(d)(4)
under the Securities Act, until such time as the Issuers have either exchanged
the Securities for securities identical in all material respects which have been
registered under the Securities Act or until such time as the Holders thereof
have disposed of such Securities pursuant to an effective registration statement
under the Securities Act.
SECTION 4.9. Limitation on Priority Indebtedness and Pari
Passu Indebtedness.
The Company will not and will not permit any of its Restricted
Subsidiaries to Incur any Priority Indebtedness or Pari Passu Indebtedness if
the Company's Priority and Pari Passu Debt to Cash Flow Ratio, after giving
effect to the incurrence of such Indebtedness and the application of the
proceeds therefrom, would have been 4.75 to 1.0 or higher. The foregoing
limitation shall not apply to (a) any Indebtedness otherwise permitted to be
incurred pursuant to clauses (i), (ii), (iii), (iv), (v), (vi) (but only to the
extent the guarantee permitted by such clause (vi) relates to any Indebtedness
permitted to be incurred by this sentence), (viii), (ix), (x), (xi), and (xii)
of the third paragraph of Section 4.11, or (b) Pari Passu Indebtedness permitted
to be
55
incurred pursuant to clauses (vii) and (xiii) of the third paragraph of Section
4.11 ((a) and (b) together, "Other Permitted Indebtedness"). For purposes of
determining compliance with this Section 4.9, in the event an item of
Indebtedness meets the criteria of more than one category of exceptions
contained in the previous sentence or meets the criteria of the first sentence
of this Section 4.9, the Company may, in its sole discretion classify such item
of Indebtedness on the date of incurrence in any manner that complies with this
Section 4.9 and such item of Indebtedness will be treated as having been
incurred pursuant to only one of such exceptions or pursuant to the first
sentence of this Section 4.9.
SECTION 4.10. Limitation on Transactions with Related Persons.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate (each of the foregoing, an "Affiliate Transaction")
involving in one or a series of related transactions an aggregate consideration
in excess of $5,000,000, unless (a) such Affiliate Transaction is on terms that
are not materially less favorable to the Company or the relevant Restricted
Subsidiary than those that would have been obtained in a comparable transaction
by the Company or such Restricted Subsidiary with an unrelated Person and
Centennial delivers an Officers' Certificate to the Trustee certifying that such
Affiliate Transaction complies with this clause (a) and (b) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $10,000,000, Centennial delivers to the
Trustee a resolution adopted by the majority of the Disinterested Directors
approving such Affiliate Transaction and set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with clause (a) above.
The foregoing provisions will not apply to the following: (i)
transactions between or among the Company and/or any of its Restricted
Subsidiaries; (ii) Restricted Payments permitted by the provisions of this
Indenture described above under Section 4.3; (iii) the payment of annual
management, consulting, monitoring and advisory fees and related expenses to
Xxxxx Xxxxxx, Blackstone and their respective Affiliates in an amount in any
calendar year not to exceed the greater of (a) $1,000,000 or (b) 1% of Annual
Consolidated EBITDA; (iv) the payment of reasonable and customary fees paid to,
and indemnity provided on behalf of, officers, directors, employees or
consultants of the Company or any Restricted Subsidiary; (v) payments by the
Company or any of its Restricted Subsidiaries to Xxxxx Xxxxxx, Blackstone and
their respective Affiliates made for any financial advisory, financing,
underwriting or placement services or in respect of other investment banking
activities, including, without limitation, in connection with acquisitions or
divestitures which payments are approved by a majority of the Board of Directors
of the Company in good faith; (vi) any transaction with respect to which the
Company or any of its Restricted Subsidiaries, as the case may be, delivers to
the Trustee a letter from an investment banking, appraisal or accounting firm of
national standing stating that such transaction is fair to the Company or such
Restricted Subsidiary from a financial point of view; (vii) payments or loans to
employees or consultants which are approved by a majority of the Board of
Directors of the Company in good faith; (viii) any agreement as in effect on the
Issue Date or any amendment thereto (so long as any such amendment is not
disadvantageous to the Holders of the Securities in any material respect) or any
transaction contemplated thereby; (ix)
56
the existence of, or the performance by the Company or any of its Restricted
Subsidiaries of its obligations under any stockholders agreement (including any
registration rights agreement or purchase agreement related thereto) to which it
is a party on the Issue Date and any similar agreements which it may enter into
thereafter; provided, however, that the existence of, or the performance by the
Company or any of its Restricted Subsidiaries of obligations under any future
amendment to any such existing agreement or under any similar agreement entered
into after the Issue Date shall only be permitted by this clause; and (x) any
payment pursuant to a tax sharing agreement between the Company and any other
Person with which the Company is required or permitted to file a consolidated
tax return or with which the Company is or could be part of a consolidated,
combined or unitary group for tax purposes, which payments are not in excess of
the tax liabilities attributable solely to the Company and its Restricted
Subsidiaries (as a consolidated, combined or unitary group).
SECTION 4.11. Limitation on Incurrence of Additional
Indebtedness.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, issue, create, incur,
assume, guarantee or otherwise directly or indirectly become liable for, or
otherwise become responsible for, contingently or otherwise (individually or
collectively, to "Incur" or, as appropriate, an "Incurrence"), any Indebtedness
(including any Acquired Indebtedness). Neither the accrual of interest
(including the issuance of "pay in kind" securities or similar instruments in
respect of such accrued interest) pursuant to the terms of Indebtedness Incurred
in compliance with this Section 4.11, nor the accretion of original issue
discount, nor the mere extension of the maturity of any Indebtedness shall be
deemed to be an Incurrence of Indebtedness.
Notwithstanding the foregoing, the Company, Centennial PR and
any Guarantor may Incur Indebtedness (including Acquired Indebtedness) and any
Restricted Subsidiary may Incur Acquired Indebtedness if the Company's Debt to
Annual EBITDA Ratio, after giving effect to the Incurrence of such Indebtedness
and the application of the proceeds therefrom, would have been less than 7.5 to
1.0 thereafter.
In addition, the foregoing limitations will not apply to the
Incurrence of the following (together, "Permitted Indebtedness"):
(i) Indebtedness of the Company or any Restricted
Subsidiary under any Senior Credit Facility in an aggregate principal
amount at any one time outstanding not to exceed $1.0 billion, reduced
by permanent reductions in commitments in satisfaction of the Net Cash
Proceeds application requirement set forth in Section 4.14; provided
that any Indebtedness under the Senior Credit Facility outstanding on
the Issue Date will be deemed to have been incurred under this clause
(i);
(ii) Indebtedness pursuant to the Securities or existing
on the Issue Date (other than under the Senior Credit Facility) and
Refinancing Indebtedness Incurred to refinance Indebtedness incurred
pursuant to this clause (ii);
(iii) Indebtedness between the Company and any Restricted
Subsidiary of the Company or between Restricted Subsidiaries of the
Company, provided that, in the case
57
of Indebtedness of the Company, such obligations shall be unsecured and
subordinated in all respects to the Holders' rights pursuant to the
Securities; provided further that (a) any disposition or transfer of
any such Indebtedness to a Person (other than a disposition or transfer
to the Company or a Restricted Subsidiary) shall be deemed to be an
Incurrence of such Indebtedness by the obligor not permitted by this
clause (iii), and (b) any transaction pursuant to which any Restricted
Subsidiary, which has Indebtedness owing to the Company or any other
Restricted Subsidiary, ceases to be a Restricted Subsidiary shall be
deemed to be the Incurrence of Indebtedness by such Restricted
Subsidiary that is not permitted by this clause (iii);
(iv) Capitalized Lease Obligations, Purchase Money
Indebtedness of the Company and any Restricted Subsidiary and any
Refinancing Indebtedness incurred to refinance Indebtedness in respect
thereof in an aggregate amount or aggregate principal amount, as the
case may be, outstanding at any time not to exceed in the aggregate the
greater of (x) $75,000,000 and (y) 5% of the Company's Total Assets;
provided that in the case of Purchase Money Indebtedness, such
Indebtedness shall not constitute more than 100% of the cost
(determined in accordance with GAAP) to the Company or such Restricted
Subsidiary of the property purchased or leased with the proceeds
thereof;
(v) Indebtedness of the Company or any Restricted
Subsidiary arising from agreements providing for indemnification,
adjustment of purchase price or similar obligations, or from guarantees
or letters of credit, surety bonds or performance bonds securing any
obligations of the Company or its Restricted Subsidiaries pursuant to
such agreements, in any case Incurred in connection with the
disposition of any business, assets or Restricted Subsidiary of the
Company to the extent none of the foregoing results in the obligation
to repay an obligation for money borrowed by any Person;
(vi) any guarantee by any Restricted Subsidiary of the
Senior Credit Facility or any other Indebtedness made in accordance
with the provisions of Section 4.19;
(vii) Indebtedness Incurred by the Company or any of its
Restricted Subsidiaries in connection with the acquisition of a new
Restricted Subsidiary, the majority of whose revenues for the most
recent twelve months for which audited or unaudited financial
statements are available are from a Related Business, or of property,
businesses or assets which, or Capital Stock of a Person all or
substantially all of whose assets, are of a type generally used in a
Related Business and any Refinancing Indebtedness in respect thereof;
provided that the principal amount (or accreted value, as applicable)
of such Indebtedness and any Refinancing Indebtedness in respect
thereof, together with any other outstanding Indebtedness Incurred
pursuant to this clause (vii), does not exceed $40,000,000 in the
aggregate at any one time outstanding; provided further that the
principal amount of Indebtedness that may be incurred pursuant to this
clause (vii) and clause (xi) by any individual Restricted Subsidiary
(other than Centennial PR) that is not a Guarantor shall not exceed
$25,000,000 in the aggregate at any one time outstanding;
(viii) Indebtedness of the Company or any Restricted
Subsidiary under standby letters of credit or reimbursement obligations
with respect thereto issued in the ordinary
58
course of business and consistent with industry practices; provided
that upon the drawing of such letters of credit or the Incurrence of
such Indebtedness, such obligations are reimbursed within 30 days
following such drawing or Incurrence;
(ix) Interest Rate Protection Obligations relating to (A)
Indebtedness of the Company or any Restricted Subsidiary (which
Indebtedness is otherwise permitted to be Incurred under this Section
4.11) or (B) Indebtedness for which a lender has provided a commitment
in an amount reasonably anticipated to be Incurred by the Company or
any Restricted Subsidiary in the 12 months after such Interest Rate
Protection Obligations has been Incurred; provided however, that the
notional principal amount of such Interest Rate Protection Obligations
does not exceed the principal amount of the Indebtedness (including
Indebtedness subject to commitments) to which such Interest Rate
Protection Obligations relate;
(x) Currency Hedging Agreements relating to (A)
Indebtedness of the Company or any Restricted Subsidiary and/or (B)
obligations to purchase or sell assets or properties, in each case,
incurred in the ordinary course of business of the Company or any
Restricted Subsidiary; provided however, that such Currency Hedging
Agreements do not increase the Indebtedness or other obligations of the
Company or any Restricted Subsidiary outstanding other than as a result
of the fluctuations in foreign currency exchange rates or by reason of
fees, indemnities and compensation payable thereunder;
(xi) Indebtedness of the Company, Centennial PR or any
Restricted Subsidiary (other than as otherwise permitted pursuant to
this Section 4.11) not to exceed $125,000,000 in the aggregate at any
one time outstanding;
(xii) Refinancing Indebtedness Incurred to extend, renew,
replace or refund Indebtedness permitted under the second paragraph of
this covenant or clause (ii) of this paragraph (plus the lesser of (a)
the stated amount of any premium or other payment required to be paid
in connection with such a refinancing pursuant to the terms of the
Indebtedness being refinanced or (b) the amount of premium or other
payment actually paid at such time to refinance the Indebtedness, plus,
in either case, the amount of expenses of the Company reasonably
incurred in connection with such refinancing); and
(xiii) other Indebtedness of the Company or any Restricted
Subsidiary in an amount not greater than the aggregate amount of Net
Cash Proceeds from the sale of Capital Stock of the Company or cash
contributions made to the capital of the Company (other than in
exchange for Disqualified Capital Stock); provided that the amount of
such cash contributions ("Excluded Cash Contributions") are designated
in an Officer's Certificate as Excluded Cash Contributions and shall
not be included in the computation of the amount of Restricted Payments
which the Company can make pursuant to Section 4.3.
For purposes of determining compliance with this Section 4.11,
in the event that an item of Indebtedness meets the criteria of more than one of
the categories of permitted Indebtedness described in clauses (ii) through
(xiii) above or is entitled to be Incurred pursuant to the second paragraph of
this covenant, the Company may, in its sole discretion, classify such
59
item of Indebtedness on the date of Incurrence in any manner that complies with
this covenant and such item of Indebtedness will be treated as having been
Incurred pursuant to only one of such clauses or pursuant to the second
paragraph hereof.
SECTION 4.12. Limitation on Restricting Subsidiary Dividends.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, assume or suffer to
exist any consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to pay dividends or make other distributions on the Capital Stock of
any Restricted Subsidiary or pay or satisfy any obligation to the Company or any
of the Restricted Subsidiaries or otherwise transfer assets or make or pay loans
or advances to the Company or any of the Restricted Subsidiaries, except
encumbrances and restrictions existing under (i) any applicable law or any
governmental or administrative regulation or order; (ii) Refinancing
Indebtedness permitted under this Indenture, provided that the restrictions
contained in the instruments governing such Refinancing Indebtedness are no more
restrictive in the aggregate than those contained in the instruments governing
the Indebtedness being refinanced immediately prior to such refinancing; (iii)
restrictions solely with respect to a Restricted Subsidiary imposed pursuant to
a binding agreement which has been entered into for the sale or disposition of
all or substantially all of the Capital Stock or assets of such Restricted
Subsidiary, provided that such restrictions apply solely to the Capital Stock or
assets being sold of such Restricted Subsidiary; (iv) restrictions contained in
any agreement relating to a Person or real or tangible personal property
acquired after the Issue Date which are not applicable to any Person or property
other than the Person or property so acquired and which were not put in place in
connection with, or in contemplation of, such acquisition; (v) any agreement
(other than those referred to in clause (iv)) of a Person acquired by the
Company or a Restricted Subsidiary, which restrictions existed at the time of
acquisition; (vi) contractual encumbrances or restrictions in effect on the
Issue Date (including encumbrances and restrictions relating to the Senior
Credit Facility, the 2013 Senior Notes or the Senior Subordinated Notes or any
other Indebtedness outstanding on the Issue Date) and customary encumbrances and
restrictions contained in the security agreements related to the Senior Credit
Facility each case as such encumbrances or restrictions may be amended, provided
that such encumbrances or restrictions as amended are no more restrictive in the
aggregate than those contained in contractual encumbrances or restrictions in
effect on the Issue Date; (vii) this Indenture and the Securities; (viii)
Purchase Money Indebtedness and Capitalized Leases, each for property acquired
in the ordinary course of business to the extent such encumbrance or restriction
relates to the property underlying the Purchase Money Indebtedness; (ix)
Indebtedness of Restricted Subsidiaries otherwise permitted to be Incurred
pursuant to Section 4.11 and Section 4.13, provided that such encumbrances or
restrictions in the aggregate with all other previous encumbrances or
restrictions permitted by this clause (ix), permit payment of cash to the
Company in an amount at least equal to 90% of the Annual Consolidated EBITDA for
all periods following the Incurrence of such Indebtedness; (x) restrictions on
cash or other deposits or net worth imposed by customers under contracts entered
into in the ordinary course of business; (xi) customary provisions in joint
venture agreements and other similar agreements entered into in the ordinary
course of business to the extent such encumbrance and restriction relates to the
activities and assets of such joint venture or similar entity; provided that the
Annual Consolidated EBITDA, determined as of the date of execution of any such
joint venture or similar agreement, in all such joint ventures or similar
entities which are subject to such encumbrances or restrictions does not exceed
10% of the
60
Company's Annual Consolidated EBITDA on the date of execution of such joint
venture or similar agreement; or (xii) customary provisions restricting
subletting or assignment of any lease entered into in the ordinary course of
business.
SECTION 4.13. Limitation on Liens.
The Company will not, and will not cause or permit any
Restricted Subsidiary to, directly or indirectly, create, Incur or affirm any
Lien of any kind (other than a Permitted Lien) securing any Indebtedness
(including any assumption, guarantee or other liability with respect thereto by
any Restricted Subsidiary) upon any property or assets (including any
intercompany notes) of the Company or any Restricted Subsidiary owned on the
date of this Indenture or acquired after the date of this Indenture, or any
income or profits therefrom, unless the Securities are directly secured equally
and ratably with the Indebtedness secured by such Lien. Notwithstanding the
foregoing, any Lien securing the Securities granted pursuant to this Section
4.13 shall be automatically and unconditionally released and discharged upon the
release by the holders of the Indebtedness described above of their Lien on the
property or assets of the Company or any Restricted Subsidiary (including any
deemed release upon payment in full of all obligations under such Indebtedness),
at such time as the holders of all such Indebtedness also release their Lien on
the property or assets of the Company or such Restricted Subsidiary, or upon any
sale, exchange or transfer to any Person of the property or assets secured by
such Lien, or of all of the Capital Stock held by the Company or any Restricted
Subsidiary in, or all or substantially all the assets of, any Restricted
Subsidiary creating such Lien.
SECTION 4.14. Limitation on Asset Sales and Sales of
Subsidiary Stock.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, in one or a series of related transactions, convey,
sell, transfer, assign or otherwise dispose of, directly or indirectly, any of
its property, businesses or assets, including by merger or consolidation or sale
and leaseback transaction, and including any sale or other transfer or issuance
of any Capital Stock of any Restricted Subsidiary, whether by the Company or a
Restricted Subsidiary other than any single transaction or a series of related
transactions that involves properties, businesses or assets having a Fair Market
Value of less than $10,000,000, as determined in good faith by the Company's
Board of Directors (an "Asset Sale"), unless (1) either (a) within one year
after the date of such Asset Sale, an amount equal to the Net Cash Proceeds
therefrom (the "Asset Sale Offer Amount") are applied to the optional redemption
of the Securities in accordance with the terms of this Indenture and other
Indebtedness of the Company ranking on a parity with the Securities from time to
time outstanding (including the 2013 Senior Notes) with similar provisions
requiring the Company to make an offer to purchase or to redeem such
Indebtedness with the proceeds from asset sales, pro rata in proportion to the
respective principal amounts (or accreted values in the case of Indebtedness
issued with an original issue discount) of the Securities and such other
Indebtedness then outstanding or to the repurchase of the Securities and such
other Indebtedness pursuant to an irrevocable, unconditional offer (the "Asset
Sale Offer") to repurchase such Indebtedness at a purchase price (the "Asset
Sale Offer Price") of 100% of the principal amount thereof in the case of the
Securities or 100% of the principal amount (or accreted value in the case of
Indebtedness issued with an original issue discount) of such Indebtedness, plus,
in each case, accrued interest to the date of payment, made within one year of
such Asset Sale, or (b) within one year of such Asset
61
Sale, the Asset Sale Offer Amount is (i) invested (or committed, pursuant to a
binding commitment subject only to reasonable, customary closing conditions, to
be invested, and in fact is so invested, within an additional 90 days) in
tangible assets and property (other than notes, obligations or securities),
which in the good faith reasonable judgment of the Company are of a type used in
a Related Business, or Capital Stock of a Person (which, if such Person becomes
a Subsidiary of the Company by virtue of such Asset Sale, shall initially be
designated a Restricted Subsidiary) all or substantially all of whose assets and
property (in the good faith reasonable judgment of the Company) are of a type
used in a Related Business (provided that, with respect to such Capital Stock,
all of the requirements of the last proviso of clause (v) of the third paragraph
of this Section 4.14 shall have been satisfied) or (ii) used to permanently
retire Indebtedness of the Company, Centennial PR or any Guarantor that is, in
each case, Pari Passu Indebtedness or Priority Indebtedness, (2) with respect to
any transaction or related series of transactions of securities, property or
assets with an aggregate Fair Market Value in excess of $2,500,000, at least 75%
of the value of consideration for the assets disposed of in such Asset Sale
(excluding (a) Indebtedness of the Company, Centennial PR or any Guarantor that
is Pari Passu Indebtedness under a bank credit facility (and any Refinancing
Indebtedness issued to refinance any such Indebtedness) or any Priority
Indebtedness in each case that is assumed by a transferee which assumption
permanently reduces the amount of Indebtedness outstanding on the Issue Date and
permitted to have been Incurred pursuant to Section 4.11 (including that in the
case of a revolving credit facility or similar arrangement that makes credit
available, such commitment is permanently reduced by such amount), (b) Purchase
Money Indebtedness secured exclusively by the assets subject to such Asset Sale,
which is assumed by a transferee and (c) marketable securities that are promptly
converted into cash or Cash Equivalents) consists of cash or Cash Equivalents,
provided that any cash or Cash Equivalents received within 12 months following
any such Asset Sale upon conversion of any property or assets (other than in the
form of cash or Cash Equivalents) received in consideration of such Asset Sale
shall be applied promptly in the manner required of Net Cash Proceeds of any
such Asset Sale as set forth above (provided further that the Company and its
Restricted Subsidiaries shall not be required to receive any cash in connection
with the transfer or contribution of assets to a joint venture), and (3) the
Board of Directors of the Company determines in good faith that the Company or
such Restricted Subsidiary, as applicable, would receive Fair Market Value in
consideration of such Asset Sale.
An Asset Sale Offer may be deferred until the accumulated Net
Cash Proceeds from Asset Sales not applied to the uses set forth in (1)(b) above
exceeds $20,000,000, the aggregate amount of accumulated Net Cash Proceeds not
used for purposes permitted and within the time period by this Section 4.14
being referred to as the "Accumulated Amount". Each Asset Sale Offer shall
remain open for 20 Business Days following its commencement and no longer,
except as otherwise required by applicable law (the "Asset Sale Offer Period").
Upon expiration of the Asset Sale Offer Period, the Company shall apply the
Asset Sale Offer Amount, plus an amount equal to accrued interest to the
purchase of all Indebtedness properly tendered (on a pro rata basis as described
above if the Asset Sale Offer Amount is insufficient to purchase all
Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued
interest).
Notwithstanding the foregoing provisions of the prior two
paragraphs and subparagraphs (1), (2) and (3) above:
62
(i) the Company and its Restricted Subsidiaries may, in
the ordinary course of business, convey, sell, lease, transfer, assign
or otherwise dispose of assets acquired and held for resale in the
ordinary course of business;
(ii) the Company and its Restricted Subsidiaries may
convey, sell, lease, transfer, assign or otherwise dispose of assets
pursuant to and in accordance with Section 5.1;
(iii) the Company and its Restricted Subsidiaries may sell
or dispose of damaged, worn out or other obsolete property in the
ordinary course of business so long as such property is no longer
necessary for the proper conduct of the business of the Company or such
Restricted Subsidiary, as applicable;
(iv) the Company and its Restricted Subsidiaries may
convey, sell, lease, transfer, assign or otherwise dispose of assets to
the Company or any of its Restricted Subsidiaries, provided that such
transaction is otherwise in accordance with the terms of this
Indenture; and
(v) the Company and its Restricted Subsidiaries may
exchange, in the ordinary course of business (or, if otherwise than in
the ordinary course of business, in the case of exchanges in excess of
$15,000,000 upon receipt of a favorable written opinion by an
independent financial advisor of national reputation as to the fairness
from a financial point of view to the Company or such Restricted
Subsidiary of the proposed transaction), all or a portion of its
property, businesses or assets for property, businesses or assets or
Capital Stock of a Person all or substantially all of whose assets,
which are of a type used in the business of the Company on the date of
this Indenture or a Related Business (provided that such Person shall
initially be designated a Restricted Subsidiary if such Person becomes
a Subsidiary of the Company by virtue of such exchange), or a
combination of any such property, businesses or assets, or Capital
Stock of such a Person and cash or Cash Equivalents; provided that (i)
a majority of the Disinterested Directors of the Board of Directors of
the Company shall have approved a resolution of the Board of Directors
that such exchange is fair to the Company or such Restricted
Subsidiary, as the case may be, and (ii) any cash or Cash Equivalents
received pursuant to any such exchange shall be applied in the manner
applicable to Net Cash Proceeds from an Asset Sale as set forth
pursuant to the provisions of subparagraphs (1), (2) and (3) of this
Section 4.14; and provided further that any Capital Stock of a Person
received in an Asset Sale pursuant to this clause (v) shall be owned
directly by the Company or a Restricted Subsidiary and, when combined
with the Capital Stock of such Person already owned by the Company and
its Restricted Subsidiaries, shall constitute a majority of the voting
power and Capital Stock of such Person.
Restricted Payments and Permitted Investments that are made in
compliance with Section 4.3 shall not be deemed to be Asset Sales.
Any Asset Sale Offer shall be made in compliance with all
applicable laws, rules, and regulations, including, if applicable, Regulation
14E of the Exchange Act and the rules and regulations thereunder and all other
applicable federal and state securities laws, and any
63
provisions of this Indenture that conflict with such laws shall be deemed to be
superseded by the provisions of such laws.
For purposes of this Section 4.14, "Minimum Accumulation Date"
means each date on which the Accumulated Amount exceeds $20,000,000. Not later
than 10 Business Days after each Minimum Accumulation Date, the Company will,
subject to its election pursuant to clause (1) of the first paragraph of this
Section, commence an Asset Sale Offer to the Holders and holders of other
Indebtedness of the Company ranking pari passu in right of payment with the
Securities from time to time outstanding with similar provisions requiring the
Company to make an offer to purchase or to redeem such Indebtedness with the
proceeds from asset sales to purchase, on a pro rata basis in proportion to the
respective principal amounts (or accreted values in the case of Indebtedness
issued with an original issue discount) of the Securities and such other
Indebtedness then outstanding, for cash, Securities and such other Indebtedness
that will have an aggregate principal amount (and accreted value, as applicable)
on the purchase date equal to the Accumulated Amount, at a purchase price equal
to the Asset Sale Offer Price, plus accrued but unpaid interest, if any, to, and
including, the date of purchase (the "Asset Sale Purchase Date"), which date
shall be no later than 30 Business Days after the first date on which the Asset
Sale Offer is required to be made. Notice of an Asset Sale Offer will be sent
not later than 20 Business Days prior to the close of business on the earlier of
(a) the third Business Day prior to the Asset Sale Purchase Date and (b) the
third Business Day following the expiration of the Asset Sale Offer (such
earlier date being the "Final Put Date"), by first-class mail, by the Company to
each Holder at its registered address, with a copy to the Trustee. The notice to
the Holders will contain all information, instructions and materials required by
applicable law or otherwise material to such Holders' decision to tender
Securities pursuant to the Asset Sale Offer. The notice to Holders, which (to
the extent consistent with this Indenture) shall govern the terms of the Asset
Sale Offer, shall state:
(A) that the Asset Sale Offer is being made
pursuant to such notice and this Section 4.14;
(B) the Asset Sale Offer Amount, the Asset Sale
Offer Price (including the amount of accrued and unpaid
interest), the Final Put Date, and the Asset Sale Purchase
Date;
(C) that any Security or portion thereof not
tendered or accepted for payment will continue to accrue
interest;
(D) that, unless the Issuers default in
depositing cash with the Paying Agent in accordance with the
penultimate paragraph of this Section 4.14 or such payment is
otherwise prevented, any Security, or portion thereof,
accepted for payment pursuant to the Asset Sale Offer shall
cease to accrue interest after the Asset Sale Purchase Date;
(E) that Holders electing to have a Security, or
portion thereof, purchased pursuant to an Asset Sale Offer
will be required to surrender the Security, with the form
entitled "Option of Holder to Elect Purchase" on the reverse
of the Security completed, to the Paying Agent (which may not
for
64
purposes of this Section 4.14, notwithstanding anything this
Indenture to the contrary, be the Company or any Affiliate of
the Company) at the address specified in the notice prior to
the close of business on the Final Put Date;
(F) that Holders will be entitled to withdraw
their elections, in whole or in part, if the Paying Agent
(which may not for purposes of this Section 4.14,
notwithstanding any other provision of this Indenture, be the
Company or any Affiliate of the Company) receives, up to the
close of business on the Final Put Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Securities the Holder is
withdrawing and a statement that such Holder is withdrawing
his election to have such principal amount of Securities
purchased;
(G) that if Indebtedness in a principal amount
in excess of the principal amount of Securities to be acquired
pursuant to the Asset Sale Offer is tendered and not
withdrawn, the Issuers shall purchase Indebtedness on a pro
rata basis in proportion to the respective principal amounts
(or accreted values in the case of Indebtedness issued with an
original issue discount) thereof (with such adjustments as may
be deemed appropriate by the Issuers so that only Securities
in denominations of $1,000 or integral multiples of $1,000
shall be acquired);
(H) that Holders whose Securities were purchased
only in part will be issued new Securities equal in principal
amount to the unpurchased portion of the Securities
surrendered; and
(I) a brief description of the circumstances and
relevant facts regarding such Asset Sales.
On or before an Asset Sale Purchase Date, the Issuers shall
(i) accept for payment Securities or portions thereof properly tendered and not
properly withdrawn pursuant to the Asset Sale Offer on or before the Final Put
Date (on a pro rata basis if required pursuant to paragraph (7) hereof), (ii)
deposit with the Paying Agent cash sufficient to pay the Asset Sale Offer Price
for all Securities or portions thereof so tendered and accepted and (iii)
deliver to the Trustee Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof being purchased by the
Issuers. The Paying Agent shall on each Asset Sale Purchase Date mail or deliver
to Holders of Securities so accepted payment in an amount equal to the Asset
Sale Offer Price for such Securities, and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Security equal in
principal amount to any unpurchased portion of the Security surrendered. Any
Security not so accepted shall be promptly mailed or delivered by the Issuers to
the Holder thereof. The Trustee shall not be deemed to have notice of any Asset
Sale Purchase Date unless a Trust Officer receives notice thereof from the
Issuers or any Holder.
If the amount required to acquire all Indebtedness properly
tendered by Holders pursuant to the Asset Sale Offer (the "Acceptance Amount")
made pursuant to this Section 4.14 is less than the Asset Sale Offer Amount, the
excess of the Asset Sale Offer Amount over the Acceptance Amount may be used by
the Company for general corporate purposes without
65
restriction, unless otherwise restricted by the other provisions of this
Indenture. Upon consummation of any Asset Sale Offer made in accordance with the
terms of this Indenture, the Accumulated Amount will be reduced to zero
irrespective of the amount of Indebtedness tendered pursuant to the Asset Sale
Offer.
SECTION 4.15. Waiver of Stay, Extension or Usury Laws.
The Issuers covenant (to the extent that they may lawfully do
so) that they will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury law or other law which would prohibit or forgive the Issuers from
paying all or any portion of the principal of, premium of, or interest on the
Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this
Indenture; and (to the extent that it may lawfully do so) the Issuers hereby
expressly waive all benefit or advantage of any such law, and covenant 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.
SECTION 4.16. [INTENTIONALLY OMITTED].
SECTION 4.17. Limitation on Unrestricted Subsidiaries.
The Company may designate any Subsidiary (other than
Centennial PR) as an "Unrestricted Subsidiary" under this Indenture (a
"Designation") only if:
(a) no Default shall have occurred and be continuing at
the time of or after giving effect to such Designation;
(b) the Company would be permitted to make an Investment
at the time of Designation (assuming the effectiveness of such
Designation) pursuant to Section 4.3 above in an amount (the
"Designation Amount") equal to the greater of (1) the net book value of
the Company's interest in such Subsidiary calculated in accordance with
GAAP and (2) the Fair Market Value of the Company's interest in such
Subsidiary as determined in good faith by the Company's Board of
Directors;
(c) such Unrestricted Subsidiary does not own any Capital
Stock in any Restricted Subsidiary which is not simultaneously being
designated an Unrestricted Subsidiary;
(d) such Unrestricted Subsidiary is not liable, directly
or indirectly, with respect to any Indebtedness other than Indebtedness
of an Unrestricted Subsidiary, provided that an Unrestricted Subsidiary
may provide a Guarantee for the Securities; and
(e) such Unrestricted Subsidiary is not a party to any
agreement, contract, arrangement or understanding at such time with the
Company or any Restricted Subsidiary unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable
to the Company or such Restricted Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of the
66
Company or, in the event such condition is not satisfied, the value of
such agreement, contract, arrangement or understanding to such
Unrestricted Subsidiary shall be deemed a Restricted Payment.
In the event of any such Designation, the Company shall be
deemed to have made an Investment constituting a Restricted Payment pursuant to
Section 4.3 for all purposes of this Indenture in the Designation Amount.
The Company shall not and shall not cause or permit any
Restricted Subsidiary to at any time (x) provide credit support for (provided
that operational contracts in the ordinary course of business shall not be
deemed credit support), or subject any of its property or assets (other than the
Capital Stock of any Unrestricted Subsidiary) to the satisfaction of, any
Indebtedness of any Unrestricted Subsidiary (including any undertaking,
agreement or instrument constituting such Indebtedness) (other than Permitted
Investments in Unrestricted Subsidiaries or Investments that are permissible
under Section 4.3) or (y) be directly or indirectly liable for any Indebtedness
of any Unrestricted Subsidiary. For purposes of the foregoing, the Designation
of a Subsidiary of the Company as an Unrestricted Subsidiary shall be deemed to
be the Designation of all of the Subsidiaries of such Subsidiary as Unrestricted
Subsidiaries.
The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") if:
(a) no Default shall have occurred and be continuing at
the time of and after giving effect to such Revocation;
(b) all Liens and Indebtedness of such Unrestricted
Subsidiary outstanding immediately following such Revocation would, if
Incurred at such time, have been permitted to be Incurred for all
purposes of this Indenture; and
(c) unless such redesignated Subsidiary shall not have
any Indebtedness outstanding (other than Indebtedness that is Permitted
Indebtedness and Other Permitted Indebtedness), immediately after
giving effect to such proposed Revocation, and after giving pro forma
effect to the Incurrence of any such Indebtedness of such redesignated
Subsidiary as if such Indebtedness was Incurred on the date of the
Revocation, the Company could Incur $1.00 of additional Indebtedness
(other than Indebtedness that is Permitted Indebtedness and Other
Permitted Indebtedness) pursuant to Section 4.11.
All Designations and Revocations must be evidenced by a
resolution of the Board of Directors of the Company delivered to the Trustee
certifying compliance with the foregoing provisions.
SECTION 4.18. Limitation on Lines of Business.
Neither the Company nor any of its Restricted Subsidiaries
shall directly or indirectly engage in any line or lines of business activity
other than that which, in the reasonable, good faith judgment of the Board of
Directors of the Company, is a Related Business.
67
SECTION 4.19. Limitation on Issuances of Guarantees; Release
of Guarantee and Issuer Obligations.
(a) The Company will not cause or permit any Restricted
Subsidiary (other than Centennial PR or a Guarantor), directly or indirectly, to
guarantee, assume or in any other manner become liable with respect to any
Indebtedness (other than a guarantee) of the Company, Centennial PR or any
Guarantor (other than under the Senior Credit Facility) unless such Restricted
Subsidiary simultaneously executes and delivers a supplemental indenture to this
Indenture providing for a Guarantee of the Securities on the same terms as the
guarantee of such Indebtedness except that such guarantee need not be secured
unless required pursuant to Section 4.13 and if such Indebtedness is by its
terms expressly subordinated to the Securities, any such assumption, guarantee
or other liability of such Restricted Subsidiary with respect to such
Indebtedness shall be subordinated to such Restricted Subsidiary's Guarantee of
the Securities at least to the same extent as such Indebtedness is subordinated
to the Securities; provided that, unless the 2013 Senior Notes or the Senior
Subordinated Notes are guaranteed by a particular Restricted Subsidiary (other
than Centennial PR or a Guarantor), the foregoing shall not be applicable to any
guarantee of (A) Indebtedness of a Foreign Restricted Subsidiary by a Foreign
Restricted Subsidiary and (B) Indebtedness of such Restricted Subsidiary that
existed at the time it became a Restricted Subsidiary and was not Incurred in
connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary and any guarantees of Indebtedness that could have been incurred by
such Restricted Subsidiary directly pursuant to Section 4.11.
(b) Notwithstanding the foregoing, any Guarantee by a
Restricted Subsidiary of the Securities shall provide by its terms that it (and
all Liens securing the same) shall be automatically and unconditionally released
and discharged upon (i) any direct or indirect sale, exchange or transfer, to
any Person of all or substantially all the assets of such Restricted Subsidiary,
or upon a direct or indirect sale or transfer of capital stock of such
Guarantor, as a result of which such Guarantor ceases to be a Subsidiary of the
Company, or upon the designation of such Guarantor as an Unrestricted Subsidiary
in accordance with the provisions of this Indenture which transaction is
otherwise in compliance with the terms of this Indenture or (ii) the release by
the holders of the Indebtedness of the Company, Centennial PR or any Guarantor
described in clause (a) above of their guarantee by such Restricted Subsidiary
(including any deemed release upon payment in full of all obligations under such
Indebtedness), which resulted in the Securities being guaranteed by such
Restricted Subsidiary, at such time as (A) no other Indebtedness of the Company,
Centennial PR or any Guarantor, as applicable, has been secured or guaranteed by
such Restricted Subsidiary or (B) the holders of all such other Indebtedness
which is guaranteed by such Restricted Subsidiary also release their guarantee
by such Restricted Subsidiary (including any deemed release upon payment in full
of all obligations under such Indebtedness); provided that this clause (b) of
this Section 4.19 will continue to be applicable from and after any Investment
Grade Date.
(c) Notwithstanding the foregoing clauses (a) and (b) and
subject to the provisions of Section 5.1, Centennial PR's obligations as an
Issuer of the Securities shall be automatically and unconditionally released and
discharged upon any direct or indirect sale, exchange or transfer to any Person
of all or substantially all of the assets of Centennial PR, or upon a direct or
indirect sale or transfer of capital stock of Centennial PR as a result of which
Centennial PR ceases to be a Subsidiary of the Company, which transaction is
otherwise in
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compliance with the terms of this Indenture; provided that this clause (c) of
this Section 4.19 will continue to be applicable from and after any Investment
Grade Date.
SECTION 4.20. Waiver of Compliance with Certain Covenants.
The Issuers may omit in any particular instance to comply with
any covenant or condition set forth in Sections 4.3 and 4.8 through 4.19 if,
before or after the time for such compliance, the Holders of not less than a
majority in aggregate principal amount of the Securities at the time outstanding
shall, by act of such Holders, waive such compliance in such instance with such
covenant or provision, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Issuers and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
SECTION 4.21. Termination of Certain Covenants
Notwithstanding anything in this Indenture to the contrary,
from and after the first date after the Issue Date on which the Securities have
an Investment Grade Rating and no Default or Event of Default has occurred and
is continuing (the "Investment Grade Date"), the Company, Centennial and the
Restricted Subsidiaries will no longer be subject to the provisions of Sections
4.3, 4.9, 4.10, 4.11, 4.12, 4.14, 4.17, 4.18 and 4.19 (with regards to Section
4.19, except as set forth therein).
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1. Limitation on Merger, Sale or Consolidation.
The Company will not consolidate with or merge with or into
another Person, or sell, lease, convey, transfer or otherwise dispose of all or
substantially all of its properties and assets (computed on a consolidated
basis), whether in a single transaction or a series of related transactions, to
another Person or group of affiliated Persons, and the Company will not permit
any Restricted Subsidiary to enter into any such transaction or series of
transactions which would result in a sale, lease, conveyance, transfer or other
disposition of all or substantially all of the properties and assets of the
Company on a consolidated basis, unless (i) either (a) the Company is the
continuing entity or (b) the resulting, surviving or transferee entity is an
entity organized under the laws of the United States, any state thereof or the
District of Columbia or the Commonwealth of Puerto Rico and expressly assumes by
supplemental indenture all of the obligations of the Company in connection with
the Securities, this Indenture and the Registration Rights Agreement, as the
case may be, and the Securities, this Indenture and the Registration Rights
Agreement will remain in full force and effect as so supplemented (and any
Guarantee shall be confirmed as applied to the surviving entity's obligations);
(ii) no Default or Event of Default shall exist or shall occur immediately after
giving effect on a pro forma basis (and treating any Indebtedness not previously
an obligation of the Company or any of its Restricted Subsidiaries which becomes
the obligation of the Company or any of its Restricted Subsidiaries as a result
of such transaction as having been incurred at the time of such transaction) to
such transaction; (iii) immediately before and immediately after giving effect
to such transaction on a
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pro forma basis (on the assumption that the transaction occurred on the first
day of the four-quarter period for which financial statements are available
ending immediately prior to the consummation of such transaction with the
appropriate adjustments with respect to the transaction being included in such
pro forma calculation), either the Company or the resulting surviving or
transferee entity would immediately thereafter be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Debt to Annual EBITDA Ratio
provision set forth in the second paragraph of Section 4.11, or such Debt to
Annual EBITDA Ratio would be lower than such ratio immediately prior to such
transaction; provided that this clause (iii) will no longer be applicable from
and after any Investment Grade Date; (iv) at the time of the transaction
described above, each Issuer, unless Centennial is the other party to the
transaction described above, in which case Section 5.1(i)(b) above shall apply,
will have by supplemental indenture confirmed that it remains a co-obligor under
this Indenture and the Securities; (v) at the time of the transaction described
above, each Guarantor, if any, unless it is the other party to the transaction
described above, will have by supplemental indenture confirmed that its
Guarantee shall apply to such Person's obligations under this Indenture and the
Securities; and (vi) at the time of the transaction described above, the Company
or the resulting surviving or transferee entity will have delivered, or caused
to be delivered, to the Trustee, in form and substance reasonably satisfactory
to the Trustee, an Officers' Certificate and an Opinion of Counsel, each to the
effect that such consolidation, merger, transfer, sale, assignment, conveyance,
transfer, lease or other transaction and the supplemental indenture in respect
thereof comply with this Indenture and that all conditions precedent therein
provided for relating to such transaction have been complied with.
Notwithstanding the foregoing, any Restricted Subsidiary may
merge with and into any other Restricted Subsidiary or the Company.
Centennial will not, in a single transaction or through a
series of related transactions, consolidate with or merge with or into any other
Person (other than the Company, Centennial PR or any Guarantor, as applicable)
or sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets to any Person or group of Persons
(other than the Company, Centennial PR or any Guarantor, as applicable) unless
at the time and after giving effect thereto (i) either (a) Centennial will be
the continuing corporation or (b) the Person (if other than Centennial) formed
by such consolidation or into which Centennial is merged or the Person which
acquires by sale, assignment, conveyance, transfer, lease or disposition all or
substantially all of the properties and assets of Centennial on a consolidated
basis will be an entity duly organized and validly existing under the laws of
the United States of America or any state thereof or the District of Columbia
and such Person expressly assumes, by a supplemental indenture, in a form
reasonably satisfactory to the Trustee, all the obligations of Centennial under
the Securities and this Indenture and the Registration Rights Agreement and such
Security, Indenture and Registration Rights Agreement will remain in full force
and effect; (ii) immediately before and immediately after giving effect to such
transaction on a pro forma basis, no Default or Event of Default will have
occurred and be continuing; and (iii) at the time of the transaction Centennial
or the surviving entity will have delivered, or caused to be delivered, to the
Trustee, in form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each to the effect that such
consolidation, merger, transfer, sale, assignment, conveyance, lease or other
transaction and the supplemental indenture in respect thereof comply with this
Indenture and that all conditions precedent therein
70
provided for relating to such transaction have been complied with. In the event
that the Company shall merge or consolidate with or into Centennial, the
provisions of the first paragraph of this Section 5.1 are also required to be
satisfied.
SECTION 5.2. Successor Corporation Substituted.
Upon any consolidation or merger or any transfer (other than a
lease) of all or substantially all of the assets of the Company or Centennial,
as the case may be in accordance with the foregoing, the successor entity formed
by such consolidation or into which the Company or Centennial, as the case may
be, is merged or to which such transfer is made, shall succeed to, and be
substituted for, and may exercise every right and power of, the Company or
Centennial, as the case may be, under this Indenture with the same effect as if
such successor entity had been named herein as the Company or Centennial, as the
case may be, and the Company or Centennial, as the case may be, shall be
released from the obligations under the Securities, this Indenture and the
Registration Rights Agreement.
SECTION 5.3. Release of Centennial PR
Upon any transfer (other than by way of lease) of all or
substantially all of the assets of Centennial PR to a Restricted Subsidiary, at
its election Centennial PR shall be released from its obligations under the
Securities, this Indenture and the Registration Rights Agreement, provided that
(i) such Restricted Subsidiary is duly organized and validly existing under the
laws of the United States of America or any state thereof or the District of
Columbia or the Commonwealth of Puerto Rico, (ii) such Person expressly assumes,
by a supplemental indenture, in a form reasonably satisfactory to the Trustee,
all the obligations of Centennial PR under the Securities, this Indenture and
the Registration Rights Agreement, (iii) immediately before and immediately
after giving effect to such transaction on a pro forma basis, no Default or
Event of Default has or will have occurred and is or be continuing; and (iv) at
the time of any such transfer Centennial PR will have delivered, or caused to be
delivered, to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each to the effect
that such transfer and the supplemental indenture in respect thereof comply with
this Indenture and that all conditions precedent therein provided for relating
to such transaction have been complied with. In any such case, such successor
Person shall succeed to, and be substituted for, and may exercise every right
and power of, Centennial PR under this Indenture and the Registration Rights
Agreement with the same effect as if such successor Person had been named herein
as Centennial PR.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be caused voluntarily or involuntarily or effected, without limitation, 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):
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(1) the failure by the Issuers to pay any
installment of interest or Additional Interest, if any, on the
Securities as and when the same becomes due and payable and
the continuance of such failure for 30 days;
(2) the failure by the Issuers to pay all or any
part of the principal, or premium, if any, on the Securities
when and as the same becomes due and payable at maturity,
redemption, by acceleration or otherwise, including, without
limitation, payment of the Change of Control Purchase Price in
accordance with Article XI or the Asset Sale Offer Price in
accordance with Section 4.14;
(3) the failure by the Issuers to observe or
perform any other covenant or agreement contained in the
Securities or this Indenture (other than a default in the
performance of any covenant or agreement which is specifically
dealt with elsewhere in this Section 6.1), and the continuance
of such failure for a period of 30 days after written notice
is given to the Issuers by the Trustee or to the Issuers and
the Trustee by Holders of at least 25% in aggregate principal
amount of the Securities outstanding, specifying such default
or breach, requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder;
(4) there shall have been the entry by a court
of competent jurisdiction of (a) a decree or order for relief
in respect of Centennial, the Company, Centennial PR or any
Significant Restricted Subsidiaries in an involuntary case or
proceeding under the applicable Bankruptcy Law or (b) a decree
or order adjudging Centennial, the Company, Centennial PR or
any Significant Restricted Subsidiary bankrupt or insolvent,
or seeking reorganization, arrangement, adjustment or
composition of or in respect of Centennial, the Company,
Centennial PR 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
Company, Centennial PR or any Significant Restricted
Subsidiary or of any substantial part of their respective
properties, or ordering the winding up or liquidation of their
affairs, and any such decree or order for relief shall
continue to be in effect, or any such other decree or order
shall be unstayed and in effect, for a period of 60
consecutive days;
(5) (a) Centennial, the Company, Centennial PR
or any Significant Restricted Subsidiary commences a voluntary
case or proceeding under any applicable Bankruptcy Law or any
other case or proceeding to be adjudicated bankrupt or
insolvent, (b) Centennial, the Company, Centennial PR or any
Significant Restricted Subsidiary consents to the entry of a
decree or order for relief in respect of Centennial, the
Company, Centennial PR or such Significant Restricted
Subsidiary in an involuntary case or proceeding under any
applicable Bankruptcy Law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, (c)
Centennial, the Company, Centennial PR or any Significant
Restricted Subsidiary files a petition or answer or consent
seeking reorganization or relief under any applicable federal
or state law, (d) Centennial, the Company, Centennial PR or
any Significant Restricted Subsidiary (I) consents
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to the filing of such petition or the appointment of, or
taking possession by, a Custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of
Centennial, the Company, Centennial PR, such Significant
Restricted Subsidiary or of any substantial part of their
respective properties, (II) makes an assignment for the
benefit of creditors or (III) admits in writing its inability
to pay its debts generally as they become due or (e)
Centennial, the Company, Centennial PR or any Significant
Restricted Subsidiary takes any corporate action in
furtherance of any such actions in this clause (5) of this
Section 6.1;
(6) the Guarantee of any Guarantor shall for any
reason cease to be, or shall for any reason be asserted in
writing by any such Guarantor or the Company or any of its
Subsidiaries not to be, in full force and effect and
enforceable in accordance with its terms, except to the extent
contemplated by this Indenture or Centennial shall for any
reason cease to be, or shall for any reason be asserted in
writing not to be, a co-obligor pursuant to the Securities,
except to the extent contemplated by this Indenture and the
Securities;
(7) one or more defaults in any Indebtedness for
money borrowed by Centennial, the Company, Centennial PR or
any Restricted Subsidiaries (or the payment of which is
guaranteed by Centennial, the Company, Centennial PR or any of
the Restricted Subsidiaries), whether such Indebtedness or
guarantee now exists or is created after the Issue Date, which
default results from the failure to pay Indebtedness at its
final maturity date or results in the acceleration of such
Indebtedness prior to its express maturity and, in each case,
the principal amount of any such Indebtedness, together with
the principal amount of any other such Indebtedness which was
not paid at its final maturity date or the maturity of which
has been so accelerated, aggregates in excess of $25,000,000
or more; and
(8) final unsatisfied judgments, orders or
decrees (not subject to appeal) of any court or regulatory or
administrative agency aggregating in excess of $25,000,000
(exclusive of any portion of any such payment covered by
insurance, if and to the extent the insurer has acknowledged
in writing its liability therefor), at any one time are
rendered against Centennial, the Company, Centennial PR or any
of their Restricted Subsidiaries and not stayed, bonded or
discharged within 60 days.
SECTION 6.2. Acceleration of Maturity Date; Rescission and
Annulment.
If an Event of Default occurs and is continuing (other than an
Event of Default specified in Sections 6.1(4) and (5), then in every such case,
unless the principal of all of the Securities shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Securities then outstanding, by notice in writing to the
Issuers (and to the Trustee if given by the Holders) (an "Acceleration Notice"),
may declare all principal of the Securities (or the Change of Control Purchase
Price if the Event of Default includes failure to pay the Change of Control
Purchase Price), determined as set forth below, including in each case accrued
interest thereon to be due and payable immediately; provided that so long as the
Senior Credit Facility shall be in full force and effect, if an Event of
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Default shall have occurred and be continuing (other than as specified in clause
(4) or (5) with respect to Centennial, the Company, Centennial PR, any Guarantor
or any Significant Restricted Subsidiary), any such acceleration shall not be
effective until the earlier to occur of (x) five Business Days following
delivery of a written notice of such acceleration of the Securities to the agent
under the Senior Credit Facility and (y) the acceleration of any Indebtedness
under the Senior Credit Facility. If an Event of Default specified in clauses
(4) and (5) above relating to Centennial, the Company, Centennial PR, any
Guarantor or any Restricted Subsidiary occurs, all principal and accrued
interest thereon will be immediately due and payable on all outstanding
Securities without any declaration or other act on the part of Trustee or the
Holders.
At any time after such a declaration of acceleration being
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter provided in this Article VI, the Holders
of a majority in aggregate principal amount of then outstanding Securities, by
written notice to the Company and the Trustee, may rescind, on behalf of all
Holders, any such declaration of acceleration if:
(A) the Issuers have paid or deposited with the
Trustee cash sufficient to pay (A) all overdue interest on all
Securities, (B) the principal of (and premium, if any,
applicable to any Securities which would become due otherwise
than by such declaration of acceleration, and interest thereon
at the rate borne by the Securities, (C) to the extent that
payment of such interest is lawful, interest upon overdue
interest at the rate borne by the Securities, (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
(B) all Events of Default, other than the
non-payment of the principal of, premium, if any, and interest
on Securities which have become due solely by such declaration
of acceleration, have been cured or waived as provided in
Section 6.12, including, if applicable, any Event of Default
relating to the covenants contained in Section 11.1.
Notwithstanding the previous sentence of this Section 6.2, no waiver shall be
effective against any Holder for any Event of Default or event which with notice
or lapse of time or both would be an Event of Default with respect to any
covenant or provision which cannot be modified or amended without the consent of
the Holder of each outstanding Security affected thereby, unless all such
affected Holders agree, in writing, to waive such Event of Default or other
event. No such waiver shall cure or waive any subsequent default or impair any
right consequent thereon.
SECTION 6.3. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Issuers covenant that if an Event of Default in payment of
principal, premium, or interest specified in clause (1) or (2) of Section 6.1
occurs and is continuing, the Issuers shall, upon demand of the Trustee, pay to
it, for the benefit of the Holders of such Securities, the whole amount then due
and payable on such Securities for principal, premium (if any), interest and
Additional Interest, if any, and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal (and premium, if
any) and on any overdue interest and Additional Interest, if any, at the rate
borne by the Securities, and, in
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addition thereto, such further amount as shall be sufficient to cover the
reasonable costs and expenses of collection, including compensation to, and
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Issuers fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust in favor
of the Holders, 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 Issuers or any other obligor upon
the Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Issuers or any other obligor
upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effective 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 6.4. 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 Issuers or any other obligor upon the
Securities or the property of the Issuers 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 Issuers for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise, to take any and
all actions under the TIA, including (1) to file and prove a claim for the whole
amount of principal (and premium, if any), interest and Additional Interest, if
any, owing and unpaid in respect of the Securities and to file such other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel) and of the
Holders allowed in such judicial proceeding, and (2) to collect and receive any
moneys or other property payable or deliverable on any such claims and to
distribute the same; and any Custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment, or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
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SECTION 6.5. 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 in favor of the Holders, and any
recovery of judgment shall, after provision for the payment of compensation to,
and 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 6.6. Priorities.
Any money collected by the Trustee pursuant to this Article VI
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,
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 Trustee in payment of all amounts due pursuant
to Section 7.7;
SECOND: To the Holders in payment of the amounts then due and
unpaid for principal of, premium (if any), interest
and Additional Interest, if any, 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, premium
(if any) and interest, respectively; and
THIRD: To the Issuers.
SECTION 6.7. Limitation on Suits.
No Holder of any Security shall have any right to order or
direct the Trustee 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 (A) such Holder has previously given
written notice to the Trustee of a continuing Event of Default; (B) the Holders
of not less than 25% in aggregate principal amount of then outstanding
Securities 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; (C) such Holder or Holders have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities to be incurred
or reasonably probable to be incurred in compliance with such request; (D) the
Trustee for 15 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and (E) no direction
inconsistent with such written request has been given to the Trustee during such
15-day period by the Holders of a majority in principal amount of the
outstanding Securities; it being understood and intended that no one or more
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 Holders, or to obtain or to seek to obtain
76
priority or preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all the Holders.
SECTION 6.8. Unconditional Right of Holders to Receive
Principal, Premium, Interest and Additional Interest.
Notwithstanding any other provision of this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of, and premium (if any) and
accrued interest and Additional Interest (if any) on, such Security on the
Maturity Date of such payments as expressed in such Security (in the case of
redemption, the Redemption Price on the applicable Redemption Date, in the case
of the Change of Control Purchase Price, on the applicable Change of Control
Purchase Date, and in the case of an Asset Sale Offer, the Asset Sale Offer
Price on the Asset Sale Purchase Date), and to institute suit for the
enforcement of any such payment after such respective dates, and such rights
shall not be impaired without the consent of such Holder.
SECTION 6.9. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in Section 2.7, 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 6.10. Delay or Omission Not Waiver.
No delay or omission by the Trustee or by any Holder of any
Security to exercise any right or remedy arising upon any Event of Default shall
impair the exercise of any such right or remedy or constitute a waiver of any
such Event of Default. Every right and remedy given by this Article VI 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 6.11. Control by Holders.
The Holder or Holders of a majority in aggregate principal
amount of then outstanding Securities will 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 upon the Trustee, 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 not taking part in such direction,
(3) the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction, (4) the Trustee may require
indemnification to its satisfaction before taking any action in accordance with
such direction and (5) the Trustee shall not be liable with respect to any
action so taken in good faith.
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SECTION 6.12. Waiver of Past Default.
Subject to Section 6.8, the Holder or Holders of not less than
a majority in aggregate principal amount of the outstanding Securities may, on
behalf of all Holders, prior to the declaration of the acceleration of the
maturity of the Securities, waive any past default hereunder and its
consequences, except a default (A) in the payment of the principal of, premium,
if any, or interest on, any Security as specified in clauses (1) and (2) of
Section 6.1, or (B) in respect of a covenant or provision hereof which, under
Article IX, cannot be modified or amended without the consent of the Holder of
each outstanding Security 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 the exercise of any right arising
therefrom.
SECTION 6.13. 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 to be taken 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 6.13 shall not apply to any suit
instituted by the Issuers, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in aggregate principal amount of the outstanding Securities, or to any
suit instituted by any Holder for enforcement of the payment of principal of, or
premium (if any) or interest on, any Security on or after the Maturity Date
expressed in such Security (including, in the case of redemption, on or after
the Redemption Date).
SECTION 6.14. 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 case, subject to any
determination in such proceeding, the Issuers, 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.
ARTICLE VII
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed.
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SECTION 7.1. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture and use the same degree of care and skill in their
exercise as a prudent Person would exercise or use under the circumstances in
the conduct of his own affairs.
(b) Except during the continuance of a Default or an
Event of Default:
(A) The Trustee need perform only those duties
as are specifically set forth in this Indenture and no others,
and no covenants or obligations shall be implied in or read
into this Indenture.
(B) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(A) This paragraph does not limit the effect of
paragraph (b) of this Section 7.1.
(B) The Trustee shall not be liable for any
error of judgment made in good faith by a Trust Officer,
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts.
(C) The Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
6.11.
(d) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers.
(e) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b), (c), (d) and (f) of
this Section 7.1 and shall extend to the Registrar and Paying Agent.
(f) The Trustee shall not be liable for interest on any
assets received by it except as the Trustee may agree in writing with the
Issuers. Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
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SECTION 7.2. Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may rely on any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it
may consult with counsel and may require an Officers' Certificate or an Opinion
of Counsel, which shall conform to Sections 12.4 and 12.5. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such certificate or advice of counsel.
(c) The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee will not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers conferred upon it by this Indenture.
(e) The Trustee will not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, notice, request, direction, consent, order,
bond, debenture, 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 Issuers personally or by agent or attorney.
(f) The Trustee will be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders, pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby.
(g) Unless otherwise specifically provided for in this
Indenture, any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
(h) The Trustee shall have no duty to inquire as to the
performance of the covenants in Article IV hereof. In addition, the Trustee
shall not be deemed to have knowledge of any Default or Event of Default
hereunder except (i) any Event of Default occurring pursuant to Section 6.1(1)
or 6.1(2), or (ii) any Default or Event of Default of which the Trustee shall
have received notification or obtained knowledge. In the absence of such actual
knowledge or notice, the Trustee may conclusively assume that no default has
occurred and is continuing under this Indenture.
(i) The permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty unless so
specified herein.
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SECTION 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or
any of the Company's Subsidiaries, or their respective Affiliates with the same
rights it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4. Trustee's Disclaimer.
The Trustee makes no representation as to the validity,
adequacy or priority of this Indenture or the Securities and it shall not be
accountable for the Company's use of the proceeds from the Securities, and it
shall not be responsible for any statement in the Securities, other than the
Trustee's certificate of authentication, or the use or application of any funds
received by a Paying Agent other than the Trustee.
SECTION 7.5. Notice of Default.
If a Default or an Event of Default occurs and is continuing
and if it is actually known to the Trustee, the Trustee shall mail to each
Securityholder notice of the uncured Default or Event of Default within 90 days
after such Default or Event of Default occurs. Except in the case of a Default
or an Event of Default in payment of principal (or premium, if any) of, or
interest on, any Security (including the payment of the Change of Control
Purchase Price on the Change of Control Purchase Date, the payment of the
Redemption Price on the Redemption Date and the payment of the Asset Sale Offer
Price on the Asset Sale Purchase Date), the Trustee may withhold the notice if
and so long as a Trust Officer in good faith determines that withholding the
notice is in the interest of the Securityholders.
SECTION 7.6. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, the Trustee shall, if required by law,
mail to each Securityholder a brief report dated as of such May 15 that complies
with TIA Section 313(a). The Trustee also shall comply with TIA Sections 313(b)
and 313(c).
The Issuers shall promptly notify the Trustee in writing if
the Securities become listed on any stock exchange or automatic quotation
system.
A copy of each report at the time of its mailing to
Securityholders shall be mailed to the Issuers and filed with the SEC and each
stock exchange, if any, on which the Securities are listed.
SECTION 7.7. Compensation and Indemnity.
The Issuers agree to pay to the Trustee from time to time
reasonable compensation for its services. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Issuers shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it. Such
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expenses shall include the reasonable compensation, disbursements and expenses
of the Trustee's agents, accountants, experts and counsel.
The Issuers agree to indemnify the Trustee (in its capacity as
Trustee) and each of its officers, directors, attorneys-in-fact and agents for,
and hold it harmless against, any claim, demand, expense (including but not
limited to reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel), loss or liability incurred by it without negligence or
willful misconduct on its part, arising out of or in connection with the
administration of this trust and its rights or duties hereunder including the
reasonable costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The Trustee shall notify the Issuers promptly of any claim asserted
against the Trustee for which it may seek indemnity. The Issuers need not
reimburse any expense or indemnify against any loss or liability to the extent
incurred by the Trustee through its negligence or willful misconduct.
To secure the Issuers' payment obligations in this Section
7.7, the Trustee shall have a lien prior to the Securities on all assets held or
collected by the Trustee, in its capacity as Trustee, except assets held in
trust to pay principal and premium, if any, of or interest on particular
Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Issuers' obligations under this Section 7.7 and any lien
arising hereunder shall survive the resignation or removal of the Trustee, the
discharge of the Issuers' obligations pursuant to Article VIII of this Indenture
and any rejection or termination of this Indenture under any Bankruptcy Law.
SECTION 7.8. Replacement of Trustee.
The Trustee may resign by so notifying the Issuers in writing.
The Holder or Holders of a majority in principal amount of the outstanding
Securities may remove the Trustee by so notifying the Issuers and the Trustee in
writing and may appoint a successor trustee with the Issuers' consent. The
Issuers may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver, Custodian, or other public officer takes
charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Issuers shall promptly appoint a successor Trustee.
Within one year after the successor Trustee takes office, the Holder or Holders
of a majority in principal amount of the Securities
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may appoint a successor Trustee to replace the successor Trustee appointed by
the Issuers. A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Immediately after that
and provided that all sums owing to the trustee provided for in Section 7.7 have
been paid, the retiring Trustee shall transfer all property held by it as
trustee to the successor Trustee, subject to the lien provided in Section 7.7,
the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Issuers or the Holder or Holders of at least 10% in principal amount of the
outstanding Securities may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Issuers' obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
SECTION 7.9. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of TIA
Section 310(a)(1), (2) and (5). The Trustee shall have a combined capital and
surplus of at least $10,000,000 as set forth in its most recent published annual
report of condition. The Trustee shall comply with TIA Section 310(b).
SECTION 7.11. Preferential Collection of Claims Against the
Issuers.
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.
SECTION 7.12. Wire Transfers and Investments.
(a) The Trustee shall be authorized to seek confirmation
of fund transfer instructions by telephone call-back to the person or persons
designated on Exhibit E hereto, and the Trustee may rely upon the confirmations
of any one purporting to be the person or persons so designated. The persons and
telephone numbers for call-backs may be changed only in a writing
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actually received and acknowledged by the Trustee. The parties to this Indenture
acknowledge that such security procedure is commercially reasonable.
(b) It is understood that the Trustee and the
beneficiary's bank in any funds transfer may rely solely upon any account
numbers or similar identifying number provided by either of the other parties
hereto to identify (i) the beneficiary, (ii) the beneficiary's bank, or (iii) an
order it executes using any such identifying number, even where its use may
result in a person other than the beneficiary being paid, or the transfer of
funds to a bank other than the beneficiary's bank or an intermediary bank
designated.
(c) All money held by the Trustee in any of the accounts
or funds established pursuant hereto shall be invested in Marketable U.S.
Securities upon receipt of a Company Request. In the absence of such Company
Request, the Trustee shall invest in those items described in clause (vi) of the
definition of Marketable U.S. Securities. The Trustee may act as principal or
agent in the acquisition or disposition of investments. The Trustee shall not be
responsible for any loss of any investment made in accordance herewith.
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1. Option to Effect Legal Defeasance or Covenant
Defeasance.
The Company may, at its option and at any time, elect to have
Section 8.2 or Section 8.3 applied to all outstanding Securities upon compliance
with the conditions set forth below in this Article VIII.
SECTION 8.2. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.1 of the option
applicable to this Section 8.2, the Issuers, any Guarantor and any other obligor
upon the Securities shall be deemed to have been discharged from their
obligations with respect to all outstanding Securities on the date the
conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For
this purpose, such Legal Defeasance means that the Issuers, any Guarantor and
any other obligor upon the securities shall be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding Securities,
which shall thereafter be deemed to be "outstanding" only for the purposes of
Section 8.5 and the other Sections of this Indenture referred to in (a) and (b)
below, and to have satisfied all its other obligations under such Securities and
this Indenture (and the Trustee, on demand of and at the expense of the Issuers,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of outstanding Securities to receive solely
from the trust fund described in Section 8.4, and as more fully set forth in
such Section 8.4, payments in respect of the principal of, premium, if any, and
interest on such Securities when such payments are due, (b) the Issuers'
obligations with respect to such Securities under Sections 2.4, 2.7, 2.10, 2.13,
2.14, 2.15 and 4.2, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Issuers' obligations in connection therewith and (d)
this Article VIII. Subject to compliance with this Article VIII, the Company
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may exercise its option under this Section 8.2 notwithstanding the prior
exercise of its option under Section 8.3 with respect to the Securities.
SECTION 8.3. Covenant Defeasance.
Upon the Company's exercise under Section 8.1 of the option
applicable to this Section 8.3, the Issuers shall be released from their
obligations under the covenants contained in Sections 4.3, 4.5, 4.6, 4.7, 4.8,
4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.17, 4.18, 4.19, and Article V (other than
the obligation of any successor to assume the obligations of the Issuers
hereunder) with respect to the outstanding Securities on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"),
and the Securities shall thereafter be deemed not "outstanding" for the purposes
of any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, such Covenant Defeasance means that, with respect to the outstanding
Securities, the Issuers need not comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document, but, except as specified above,
the remainder of this Indenture and such Securities shall be unaffected thereby.
If Covenant Defeasance occurs, the events listed in Section 6.1, other than
those described in subsections (1), (2), (4) and (5), shall no longer constitute
Events of Default with respect to the Securities.
SECTION 8.4. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of
either Section 8.2 or Section 8.3 to the outstanding Securities:
(a) any of the Issuers shall irrevocably have deposited
or caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 7.10 who shall agree to comply
with the provisions of this Article VIII applicable to it) as trust
funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities, U.S. Legal Tender,
non-callable Government Securities or a combination thereof, in such
amounts, as in each case will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge the principal of, premium, if
any, and interest and Additional Interest, if any, on such Securities
on the Stated Maturity or on the applicable Redemption Date of such
principal or installment of principal of, premium, if any, or interest
on such Securities, and the Holders of Securities must have a valid,
perfected, exclusive security interest in such trust; provided that the
Trustee shall have been irrevocably instructed to apply such U.S. Legal
Tender or non-callable Government Securities to said payments with
respect to the Securities;
(b) in the case of an election under Section 8.2, the
Company shall have delivered to the Trustee an Opinion of Counsel in
the United States reasonably acceptable
85
to the Trustee confirming that (i) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling or
(ii) since the date hereof, there has been a change in the applicable
Federal income tax law, in each case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of such
Securities will not recognize income, gain or loss for Federal income
tax purposes as a result of such Legal Defeasance, and will be subject
to Federal income tax in the same amount, in the same manner and at the
same times as would have been the case if such Legal Defeasance had not
occurred;
(c) in the case of an election under Section 8.3, the
Company shall have delivered to the Trustee an Opinion of Counsel in
the United States reasonably acceptable to such Trustee confirming that
the Holders of such Securities will not recognize income, gain or loss
for Federal income tax purposes as a result of such Covenant Defeasance
and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred
and be continuing on the date of such deposit or, insofar as Section
6.1(4) or 6.1(5) is concerned, at any time in the period ending on the
91st day after the date of such deposit (other than a Default which
results from the borrowing of amounts to finance the defeasance and
which borrowing does not result in a breach or violation of, or
constitute a default under, any other material agreement or instrument
to which Centennial, the Company or any Restricted Subsidiary is a
party or to which it is bound) (it being understood that such condition
will not be satisfied until the expiration of such 91-day period);
(e) the Company shall have delivered to the Trustee an
Opinion of Counsel in the United States reasonably acceptable to the
Trustee to the effect that (assuming that no Holder of any Securities
would be considered an insider of the Company under any applicable
bankruptcy or insolvency law) after the 91st day following the deposit,
the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(f) such Legal Defeasance or Covenant Defeasance shall
not cause the Trustee for the Securities to have a conflicting interest
for purposes of the Trust Indenture Act with respect to any securities
of any of the Issuers or any Guarantor;
(g) such Legal Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute a default under,
this Indenture or any other material agreement or instrument to which
any of the Issuers, any Guarantor or any of their Subsidiaries is
bound;
(h) the Company, Centennial or Centennial PR shall have
delivered to the Trustee an Officers' Certificate stating that the
deposit was not made by the Company, Centennial or Centennial PR with
the intent of preferring the Holders of such Securities over any other
creditors of the Issuers or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company, Centennial,
Centennial PR or others; and
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(i) the Company shall have delivered to the Trustee an
Officers' Certificate and Opinion of Counsel each stating that all
conditions precedent provided for or relating to either the Legal
Defeasance under Section 8.2 or the Covenant Defeasance under Section
8.3 (as the case may be) have been complied with as contemplated by
this Section 8.4.
SECTION 8.5. Deposited U.S. Legal Tender and Government
Securities to be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.6, all U.S. Legal Tender and Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.5, the
"Trustee") pursuant to Section 8.4 in respect of the outstanding Securities
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent as the Trustee may determine, to the
Holders of such Securities of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
SECTION 8.6. Repayment to the Issuers.
Subject to any applicable escheat or abandoned property laws,
any money deposited with the Trustee or any Paying Agent, or then held by the
Issuers, in trust for the payment of the principal of, premium, if any, or
interest on any Security 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 Company within sixty (60) days after termination of such two-year
period; and the Holder of such Security shall thereafter look only to the
Issuers for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money shall thereupon cease. The Trustee shall
not be liable to the Issuers or any Holder for interest on funds held by it for
the payment and discharge of the interest, or premium (if any) on or principal
of any of the Securities to any Holder. The Issuers shall not be liable for any
interest on the sums paid to it pursuant to this paragraph and shall not be
regarded as a trustee of such money.
SECTION 8.7. Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S.
Legal Tender or Government Securities in accordance with Section 8.2 or 8.3, as
the case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Issuers' obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section 8.2
or 8.3 until such time as the Trustee or Paying Agent is permitted to apply such
money in accordance with Sections 8.2 and 8.3, as the case may be; provided,
however, that, if the Issuers make any payment of principal of, premium, if any,
or interest on any Security following the reinstatement of its obligations, the
Issuers shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the cash held by the Trustee or Paying Agent.
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ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holder, the Issuers, any Guarantor
and any other obligor under the Securities when authorized by Board Resolutions,
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:
(A) to evidence the succession of another Person
to Centennial, the Company, Centennial PR or a Guarantor, and
the assumption by any such successor of the covenants of
Centennial, the Company, Centennial PR or such Guarantor in
this Indenture and in the Securities and in any Guarantee in
accordance with Section 5.1;
(B) to add to the covenants of Centennial, the
Company, Centennial PR, any Guarantor or any other obligor
upon the Securities for the benefit of the Holders of the
Securities or to surrender any right or power conferred upon
Centennial, the Company, Centennial PR, any Guarantor or any
other obligor upon the Securities, as applicable, in this
Indenture, in the Securities or in any Guarantee;
(C) to cure any ambiguity, or to correct or
supplement any provision in this Indenture, the Securities or
any Guarantee which may be defective or inconsistent with any
other provision in this Indenture, the Securities or any
Guarantee or make any other provisions with respect to matters
or questions arising under this Indenture, the Securities or
any Guarantee; provided that, in each case, such provisions
shall not adversely affect the interest of the Holders of the
Securities;
(D) to comply with the requirements of the
Commission in order to effect or maintain the qualification of
this Indenture under the Trust Indenture Act;
(E) to add a Person as a Guarantor under this
Indenture;
(F) to evidence and provide the acceptance of
the appointment of a successor Trustee under this Indenture;
or
(G) to provide for the issuance of Additional
Securities under this Indenture; or
(H) to mortgage, pledge, hypothecate or grant a
security interest in favor of the Trustee for the benefit of
the holders of the Securities as additional security for the
payment and performance of Centennial's, the Company's,
Centennial PR's and any Guarantor's obligations under this
Indenture, in any property, or assets, including any of which
are required to be mortgaged, pledged
88
or hypothecated, or in which a security interest is required
to be granted to the Trustee pursuant to this Indenture or
otherwise.
SECTION 9.2. Amendments, Supplemental Indentures and Waivers
with Consent of Holders.
Subject to Section 6.8, with the consent of the Holders of not
less than a majority in aggregate principal amount of then outstanding
Securities, including Additional Securities, if any, by written act of said
Holders delivered to the Issuers and the Trustee, the Issuers, the Guarantors
and any other obligor under the Securities when authorized by Board Resolutions,
and the Trustee may amend or supplement this Indenture or the Securities or
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or the Securities or of modifying in any manner the
rights of the Holders under this Indenture or the Securities. Subject to Section
6.8, the Holder or Holders of not less than a majority, in principal amount of
then outstanding Securities, including Additional Securities, if any, may waive
compliance by the Issuers with any provision of this Indenture or the
Securities. Notwithstanding any of the above, however, no such amendment,
supplemental indenture or waiver shall, without the consent of the Holder of
each outstanding Security affected thereby:
(A) change the Stated Maturity of, or the Change
of Control Purchase Date or the Asset Sale Offer Period on, or
change to an earlier date any Redemption Date of, any Note, or
reduce the principal amount thereof or the rate (or extend the
time for payment) of interest or Additional Interest, if any,
thereon or any premium payable upon the redemption thereof, or
change the place of payment where, or the coin or currency in
which, any Note or any premium or the interest thereon is
payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or reduce the Change of Control Purchase
Price or the Asset Sale Offer Price or alter the redemption
provisions or the provisions of Article XI, including, in each
case, amending, changing or modifying any definitions related
thereto, but only to the extent such definitions relate
thereto, in a manner adverse to the Holders;
(B) reduce the percentage in principal amount of
the outstanding Securities, the consent of whose Holders is
required for any such amendment, supplemental indenture or
waiver provided for in this Indenture;
(C) modify any of the waiver provisions, except
to increase any required 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;
(D) except as otherwise permitted under Section
5.1 consent to the assignment or transfer by Centennial, the
Company or any Guarantor of any of its rights and obligations
under this Indenture; or
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(E) amend or modify any of the provisions of
this Indenture relating to the Guarantee in any manner adverse
to the Holders of the Securities.
It shall not be necessary for the consent of the Holders under
this Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.2 becomes effective, the Issuers shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Issuers to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture or
waiver.
After an amendment, supplement or waiver under this Section
9.2 or Section 9.4 becomes effective, it shall bind each Holder.
In connection with any amendment, supplement or waiver under
this Article IX, the Issuers may, but shall not be obligated to, offer to any
Holder who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
SECTION 9.3. Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 9.4. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his Security or portion of his Security by written notice to
the Issuers or the Person designated by the Issuers as the Person to whom
consents should be sent if such revocation is received by the Issuers or such
Person before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Securities have
consented (and not theretofore revoked such consent) to the amendment,
supplement or waiver.
The Issuers may, but shall not be obligated to, fix a Record
Date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver, which Record Date shall be the date so fixed by
the Issuers notwithstanding the provisions of the TIA. If a Record Date is
fixed, then notwithstanding the last sentence of the immediately preceding
paragraph, those Persons who were Holders at such Record Date, and only those
Persons (or their duly designated proxies), shall be entitled to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such Record Date. No such consent shall be valid or effective for more
than 90 days after such Record Date.
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After an amendment, supplement or waiver becomes effective, it
shall bind every Securityholder, unless it makes a change described in any of
clauses (1) through (8) of Section 9.2, in which case, the amendment, supplement
or waiver shall bind only each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder's Security; provided that any such waiver
shall not impair or affect the right of any Holder to receive payment of
principal and premium of and interest on a Security, on or after the respective
dates set for such amounts to become due and payable expressed in such Security,
or to bring suit for the enforcement of any such payment on or after such
respective dates.
SECTION 9.5. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee or require the Holder to put an appropriate notation on the
Security. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Issuers or
the Trustee so determines, the Issuers in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects the changed
terms. Any failure to make the appropriate notation or to issue a new Security
shall not affect the validity of such amendment, supplement or waiver.
SECTION 9.6. Trustee to Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article IX; provided that the Trustee may, but shall
not be obligated to, execute any such amendment, supplement or waiver which
affects the Trustee's own rights, duties or immunities under 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 any amendment,
supplement or waiver authorized pursuant to this Article IX is authorized or
permitted by this Indenture.
ARTICLE X
FUTURE GUARANTEES
SECTION 10.1. Future Guarantees. Any Person that becomes a
Guarantor, jointly and severally, fully, unconditionally and irrevocably
guarantees as primary obligors and not merely as a sureties, the obligations of
the Company under the Securities and this Indenture, and guarantees to each
Holder of a Security authenticated and delivered by the Trustee in accordance
with the terms hereof, and to the Trustee on behalf of such Holder, that (a) the
Company will make payment of the principal of and interest (including Additional
Interest, if any) on the Securities will be paid in full when due, whether at
the Maturity Date, by acceleration, redemption or otherwise (including, without
limitation, the amount that would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Law), together with
interest on the overdue principal, if any, and interest on any overdue interest,
to the extent lawful, and all other obligations of the Issuers to the Holders or
the Trustee hereunder or thereunder, including obligations arising under
Articles III and VII hereof, will be
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paid in full or performed, all in accordance with the terms hereof and thereof
and (b) the full performance, within applicable grace periods, of all other
obligations of the Company under this Indenture and the Securities which may be
extended or renewed, in whole or in part, without notice or further assent from
such Guarantor and that such Guarantor will remain bound under this Article X,
notwithstanding any extension or renewal.
Each Guarantor agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Securities or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder with respect to any provisions hereof or
thereof, the recovery of any judgment against the Issuers, any action to enforce
the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a Guarantor.
Each Guarantor waives (to the extent permitted by law) the
benefits of diligence, presentment, demand for payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Issuers or any other Person, protest,
notice and all demands whatsoever and covenant that the Guarantee of such
Guarantor shall not be discharged as to any Security except by complete
performance of the obligations contained in such Security, this Indenture and
such Guarantee. Each Guarantor acknowledges that the Guarantee is a guarantee of
payment and not of collection.
Each Guarantor agrees that, in the event of a default in
payment of principal or interest, including contingent interest, if any, on such
Security, whether at the Maturity Date of the Security, by acceleration,
redemption, purchase or otherwise, legal proceedings may be instituted by the
Trustee on behalf of or by the Holder of such Security, subject to the terms and
conditions set forth in this Indenture, directly against each of the Guarantors
to enforce such Guarantor's Guarantee without first proceeding against the
Company or any other Guarantor, if any. Each Guarantor agrees that if, after the
occurrence and during the continuance of an Event of Default, the Trustee or any
of the Holders are prevented by applicable law from exercising their respective
rights to accelerate the maturity of the Securities, to collect interest on the
Securities, or to enforce or exercise any other right or remedy with respect to
the Securities, such Guarantor shall pay to the Trustee for the account of the
Holder, upon demand therefor, the amount that would otherwise have been due and
payable had such rights and remedies been permitted to be exercised by the
Trustee or any of the Holders.
If any Holder or the Trustee is required by any court or
otherwise to return to the Issuers or any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to either the Issuers or
any Guarantor, any amount paid by any of them to the Trustee or such Holder, the
Guarantee of the Guarantor, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor further agrees that as
between each Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand, (x) subject to this Article X, the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article VI hereof for the
purposes of the Guarantee of such Guarantor notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligation
as provided in Article VI hereof, such obligations (whether or not due and
payable) shall forthwith become due and payable by each Guarantor for the
purpose of the Guarantee of such Guarantor.
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The Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Company
for liquidation, dissolution or reorganization, should the Company become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of the Issuers'
assets, and shall, to the fullest extent permitted by law, continue to be
effective or be reinstated, as the case may be, if at any time payment and
performance of the Securities are, pursuant to applicable law, rescinded or
reduced in amount, or must otherwise be restored or returned by any obligee on
the Securities, whether as a "voidable preference," "fraudulent transfer" or
otherwise, all as though such payment or performance had not been made. In the
event that any payment or any part thereof, is rescinded, reduced, restored or
returned, for the purposes of the amounts due under the Guarantee, the
Securities shall, to the fullest extent permitted by law, be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned.
Notwithstanding anything to contrary herein, nothing in this
Section X shall constitute a guarantee by any Guarantor of any obligations of
Centennial or Centennial PR under the Securities and this Indenture.
SECTION 10.2. Supplemental Indenture. Any Person that chooses
or is required to become a Guarantor after the date of this Indenture shall (a)
execute and deliver to the Trustee a supplement to this Indenture in accordance
with the provisions of Article IX of this Indenture, pursuant to which such
Person shall agree to guarantee the Securities and the obligations of the
Company thereunder and hereunder in accordance with the provisions of this
Article X and (b) deliver promptly to the Trustee (i) the supplemental indenture
executed by such Person referred to in (a) above, and (ii) an Opinion of Counsel
reasonably satisfactory to such Trustee to the effect that such supplemental
indenture has been duly executed and delivered by such Person and is in
compliance with the terms of this Indenture. Upon the execution of any such
supplemental indenture, each reference to the "Guarantor" in this Indenture
shall be deemed to refer to such Person and all other Guarantors. If more than
one Guarantor exists at any time hereafter, the obligations of all such
Guarantors shall be joint and several.
SECTION 10.3. Limitation of Guarantors' Liability. Each
Guarantor, and by its acceptance hereof, each Holder confirms that it is the
intention of all such parties that the Guarantee by each Guarantor pursuant to
its Guarantee not constitute a fraudulent transfer or conveyance for purposes of
any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law or the provisions of
its local law relating to fraudulent transfer or conveyance. To effectuate the
foregoing intention, each of the Holders and each Guarantor irrevocably agree
that the obligations of such Guarantor under its Guarantee shall be limited to
the maximum amount that will not, after giving effect to all other contingent
and fixed liabilities of such Guarantor, result in the obligations of such
Guarantor under its Guarantee constituting such fraudulent transfer or
conveyance. In case any provision of any Guarantee shall be invalid, illegal or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 10.4. Subrogation. Each Guarantor shall be subrogated
to all rights of Holders against the Company in respect of any amounts paid by
any Guarantor pursuant to the provisions of Section 10.1; provided, however,
that, if an Event of Default has occurred and is continuing, no Guarantor shall
be entitled to enforce or receive any payments arising out of, or
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based upon, such right of subrogation until all amounts then due and payable by
the Issuers under this Indenture or the Securities shall have been paid in full.
SECTION 10.5. Benefits Acknowledged. Each Guarantor
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that its Guarantee and
waivers pursuant to its Guarantee are knowingly made in contemplation of such
benefits.
SECTION 10.6. Contribution. Each Guarantor that makes a
payment under its Guarantee shall be entitled upon payment in full of all its
obligations under the Guarantee to a contribution from each other Guarantor, if
any, in an amount equal to such other Guarantor's pro rata portion of such
payment based on the respective net assets of all the Guarantors at the time of
such payment determined in accordance with GAAP.
ARTICLE XI
RIGHT TO REQUIRE REPURCHASE
SECTION 11.1. Repurchase of Securities at Option of the Holder
Upon a Change of Control.
(a) In the event that a Change of Control has occurred,
unless all Securities have been called for redemption, each Holder of Securities
will have the right, at such Holder's option, pursuant to an irrevocable and
unconditional offer by the Issuers (the "Change of Control Offer"), to require
the Issuers to repurchase all or any part (equal to $1,000 principal amount or
an integral multiple thereof) of such Holder's Securities, on a date (the
"Change of Control Purchase Date") that is no later than 45 Business Days after
the occurrence of such Change of Control at a cash price (the "Change of Control
Purchase Price") equal to 101% of the aggregate principal amount thereof,
together with any accrued and unpaid interest to the Change of Control Purchase
Date. The Change of Control Offer shall be made within 30 Business Days
following a Change of Control and shall remain open for 20 Business Days
following its commencement (the "Change of Control Offer Period"). Upon
expiration of the Change of Control Offer Period, the Issuers shall purchase all
Securities properly tendered in response to the Change of Control Offer.
Notwithstanding the foregoing, the Issuers will not be required to make a Change
of Control Offer if, upon a Change of Control, a third party (A) makes an offer
to purchase Securities in the manner, at the times and otherwise in compliance
with the requirements set forth in this Article XI and (B) purchases all
Securities validly tendered and not withdrawn under such offer to purchase.
(b) In the event that, pursuant to this Section 11.1, the
Issuers shall be required to commence a Change of Control Offer, the Issuers
shall follow the procedures set forth in this Section 11.1 as follows:
(A) the Issuers shall provide the Trustee with
notice of the Change of Control Offer at least 5 Business Days
before the commencement of any Change of Control Offer; and
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(B) on or before the commencement of any Change
of Control Offer, the Issuers or the Trustee (upon the request
and at the expense of the Issuers) shall send, by first-class
mail, a notice to each of the Holders, which (to the extent
consistent with this Indenture) shall govern the terms of the
Change of Control Offer and shall state:
(ii) that the Change of Control Offer is being made
pursuant to such notice and this Section 11.1 and that all Securities,
or portions thereof, tendered will be accepted for payment;
(iii) the Change of Control Purchase Price (including the
amount of accrued and unpaid interest), the Change of Control Purchase
Date and the Change of Control Put Date (as defined below);
(iv) that any Security, or portion thereof, not tendered
or accepted for payment will continue to accrue interest;
(v) that, unless the Issuers default in depositing cash
with the Paying Agent in accordance with the last paragraph of this
clause (b) or such payment is prevented, any Security, or portion
thereof, accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest after the Change of Control Purchase
Date;
(vi) that Holders electing to have a Security, or portion
thereof, purchased pursuant to a Change of Control Offer will be
required to surrender the Security, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Security completed, to
the Paying Agent (which may not for purposes of this Section 11.1,
notwithstanding anything in this Indenture to the contrary, be the
Company or any Affiliate of the Company) at the address specified in
the notice prior to the close of business on the earlier of (a) the
third Business Day prior to the Change of Control Purchase Date and (b)
the third Business Day following the expiration of the Change of
Control Offer (such earlier date being the "Change of Control Put
Date");
(vii) that Holders will be entitled to withdraw their
election, in whole or in part, if the Paying Agent (which may not for
purposes of this Section 11.1, notwithstanding anything in this
Indenture to the contrary, be the Company or any Affiliate of the
Company) receives, up to the close of business (5:00 p.m. New York
Time) on the Change of Control Put Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Securities the Holder is withdrawing and a
statement that such Holder is withdrawing his election to have such
principal amount of Securities purchased; and
(viii) a brief description of the events resulting in such
Change of Control.
On or before the Change of Control Purchase Date, the Issuers
will (i) accept for payment Securities or portions thereof properly tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent cash
sufficient to pay the Change of Control Purchase Price (together with accrued
and unpaid interest) of all Securities so tendered and (iii) deliver to the
Trustee Securities so accepted together with an Officers' Certificate listing
the Securities or
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portions thereof being purchased by the Issuers. The Paying Agent promptly will
deliver to the Holders of Securities so accepted payment in an amount equal to
the Change of Control Purchase Price (together with any accrued and unpaid
interest), and the Trustee will promptly authenticate and mail or deliver to
such Holders a new Security equal in principal amount to any unpurchased portion
of the Security surrendered. Any Securities not so accepted will be promptly
mailed or delivered by the Issuers to the Holder thereof. The Issuers will
announce publicly the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Purchase Date.
Any Change of Control Offer will be made in compliance with
all applicable laws, rules and regulations, including, if applicable, Regulation
14E under the Exchange Act and the rules thereunder and all other applicable
Federal and state securities laws and the Issuers may modify a Change of Control
Offer to the extent necessary to effect such compliance.
ARTICLE XII
MISCELLANEOUS
SECTION 12.1. TIA Controls.
If any provision of this Indenture limits, qualifies, or
conflicts with the duties imposed by operation of the TIA, the imposed duties,
upon qualification of this Indenture under the TIA, shall control.
SECTION 12.2. Notices.
Any notices or other communications to the Issuers or the
Trustee required or permitted hereunder shall be in writing, and shall be
sufficiently given if made by hand delivery, by telecopier or registered or
certified mail, postage prepaid, return receipt requested, addressed as follows:
if to the Issuers or any Guarantor:
c/o Centennial Communications Corp.
0000 Xxxxx 00
Xxxxxxxx X
Xxxx, Xxx Xxxxxx 00000
Attention: Xxxx X. Xxxx
Telecopy: 000-000-0000
if to the Trustee:
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services
Telecopy: 000-000-0000
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Any party by notice to each other party may designate
additional or different addresses as shall be furnished in writing by such
party. Any notice or communication to any party shall be deemed to have been
given or made as of the date so delivered, if personally delivered; when receipt
is acknowledged, if telecopied; and five Business Days after mailing if sent by
registered or certified mail, postage prepaid (except that a notice of change of
address shall not be deemed to have been given until actually received by the
addressee).
Any notice or communication mailed to a Securityholder shall
be mailed to him by first class mail or other equivalent means at his address as
it appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 12.3. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b)
with other Securityholders with respect to their rights under this Indenture or
the Securities. The Issuers, the Trustee, the Registrar and any other Person
shall have the protection of TIA Section 312(c).
SECTION 12.4. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Issuers to the Trustee
to take any action under this Indenture, such Person shall furnish to the
Trustee:
(A) an Officers' Certificate (in form and
substance reasonably satisfactory to the Trustee) stating
that, in the opinion of the signers, all conditions precedent,
if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(B) an Opinion of Counsel (in form and substance
reasonably satisfactory to the Trustee) stating that, in the
opinion of such counsel, all such conditions precedent have
been complied with.
SECTION 12.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(A) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(B) a brief statement as to the nature and scope
of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
97
(C) a statement that, in the opinion of such
Person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
(D) a statement as to whether or not, in the
opinion of each such Person, such condition or covenant has
been complied with; provided, however, that with respect to
matters of fact an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials.
SECTION 12.6. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a
meeting of Securityholders. The Paying Agent or Registrar may make reasonable
rules for its functions.
SECTION 12.7. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which
banking institutions in New York, New York are authorized or obligated by law or
executive order to close. If a payment date is a Legal Holiday at such place,
payment may be made at such place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 12.8. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. THE ISSUERS HEREBY
IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE SECURITIES,
AND IRREVOCABLY ACCEPT FOR THEMSELVES AND IN RESPECT OF THEIR RESPECTIVE
PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.
THE ISSUERS IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF THE TRUSTEE OR ANY SECURITYHOLDER TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
THE COMPANY IN ANY OTHER JURISDICTION.
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SECTION 12.9. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of Centennial, the Company or any of their respective
Subsidiaries. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 12.10. No Recourse Against Others.
No direct or indirect stockholder (or partner, limited
liability company member or employee of a stockholder), employee, officer or
director, as such, past, present or future of the Issuers or any successor
entity or any Affiliate thereof shall have any personal liability in respect of
the obligations of the Issuers under the Securities or this Indenture by reason
of his or its status as such stockholder (or partner, limited liability company
member or employee of a stockholder), employee, officer or director. Each
Securityholder by accepting a Security waives and releases all such liability.
Such waiver and release are part of the consideration for the issuance of the
Securities.
SECTION 12.11. Successors.
All agreements of the Issuers in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 12.12. Duplicate Originals.
All parties may sign any number of copies or counterparts of
this Indenture. Each signed copy or counterpart shall be an original, but all of
them together shall represent the same agreement.
SECTION 12.13. Severability.
In case any one or more of the provisions in this Indenture or
in the Securities shall be held invalid, illegal or unenforceable, in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions shall not in
any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
SECTION 12.14. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and headings of
the Articles and the Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof and shall
in no way modify or restrict any of the terms or provisions hereof.
SECTION 12.15. Qualification of Indenture.
The Issuers shall qualify this Indenture under the TIA in
accordance with the terms and conditions of the Registration Rights Agreement
and shall pay all costs and expenses (including attorneys' fees for the Issuers
and the Trustee) incurred in connection therewith,
99
including, but not limited to, costs and expenses of qualification of this
Indenture and the Securities and printing this Indenture and the Securities. The
Trustee shall be entitled to receive from the Issuers any such Officers'
Certificates, Opinions of Counsel or other documentation as it may reasonably
request in connection with any such qualification of this Indenture under the
TIA.
SECTION 12.16. Registration Rights.
Certain Holders of the Securities are entitled to certain
registration rights with respect to such Securities pursuant to, and subject to
the terms of, the Registration Rights Agreement.
ARTICLE XIII
SATISFACTION AND DISCHARGE
SECTION 13.1. Satisfaction and Discharge of Indenture.
This Indenture shall be discharged and shall cease to be of
further effect (except as to surviving rights of registration of transfer or
exchange of Securities as expressly provided for herein) as to all outstanding
Securities and Guarantees hereunder, and the Trustee, upon Company Request and
at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(1) all such Securities theretofore
authenticated and delivered (other than lost, stolen or
destroyed Securities which have been replaced or paid as
provided in Section 2.7) have been delivered to the Trustee
for cancellation; or
(2) all Securities not theretofore delivered to
the Trustee for cancellation (x) have become due and payable,
(y) will become due and payable at their Stated Maturity
within one year, or (z) 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 Issuers or any Guarantor has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust an amount in United States
dollars sufficient to pay and discharge the entire
Indebtedness on the Securities not theretofore delivered to
the Trustee for cancellation, including the principal of,
premium, if any, and accrued interest at maturity and
Additional Interest, Stated Maturity or Redemption Date;
(b) Centennial, the Company, Centennial PR or any
Guarantor has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Issuers have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in form and substance
satisfactory to the Trustee, each stating that (i) all conditions
precedent herein relating to the satisfaction and discharge hereof have
been
100
complied with and (ii) such satisfaction and discharge will not result
in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument (in the case of
the legal opinion, such material agreements or instruments as are known
to such counsel) to which Centennial, the Company, Centennial PR, any
Guarantor or any Subsidiary of the Company is a party or by which
Centennial, the Company, Centennial PR, any Guarantor or any Subsidiary
of the Company is bound.
Notwithstanding the satisfaction and discharge hereof, the
obligations of the Issuers to the Trustee under Section 7.7 and, if United
States dollars shall have been deposited with the Trustee pursuant to subclause
(2) of subsection (a) of this Section 13.1, the obligations of the Trustee under
Section 13.2 shall survive.
SECTION 13.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
2.4, all United States dollars deposited with the Trustee pursuant to Section
13.1 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 Issuers acting as their own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal of,
premium, if any, and interest on, the Securities for whose payment such United
States dollars have been deposited with the Trustee.
101
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
CENTENNIAL COMMUNICATIONS CORP.
By: /s/ XXXX X. XXXX
-------------------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President, General Counsel
CENTENNIAL CELLULAR OPERATING CO. LLC,
a Delaware limited liability company
By: Centennial Communications Corp.,
as sole member
By: /s/ XXXX X. XXXX
-------------------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President, General Counsel
CENTENNIAL PUERTO RICO OPERATIONS CORP.
By: /s/ XXXX X. XXXX
-------------------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President, General Counsel
102
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ XXXXX X. XXXXXX III
-------------------------------------------
Name: Xxxxx X. Xxxxxx III
Title: Vice President
103
EXHIBIT A-1
[FACE OF NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO CENTENNIAL
COMMUNICATIONS CORP., CENTENNIAL CELLULAR OPERATING CO. LLC AND CENTENNIAL
PUERTO RICO OPERATIONS CORP. (COLLECTIVELY, THE ISSUERS") OR THEIR AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.6 OF THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6(a) OF THE INDENTURE,
(III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
CENTENNIAL.
THIS SECURITY AND THE RELATED GUARANTEE (TOGETHER, "THE SECURITY") HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT").
THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE
ISSUERS THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
(X) PRIOR TO THE SECOND ANNIVERSARY OF THE ISSUANCE HEREOF (OR ANY PREDECESSOR
SECURITY HERETO) OR (Y) BY ANY HOLDER THAT WAS AN AFFILIATE OF ANY OF THE
ISSUERS AT ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH TRANSFER,
IN EITHER CASE, OTHER THAN (1) TO THE ISSUERS, (2) SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE
OF TRANSFER ON THE REVERSE OF THIS SECURITY), (3) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH REGULATION S UNDER THE
A-1-1
SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (4) TO AN INSTITUTION
THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON
THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY) THAT IS ACQUIRING
THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A
CERTIFICATE WHICH MAY BE OBTAINED FROM THE ISSUERS OR THE TRUSTEE IS DELIVERED
BY THE TRANSFEREE TO THE ISSUERS AND TRUSTEE, (5) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER
THE SECURITIES ACT OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES. AN INSTITUTIONAL ACCREDITED INVESTOR
HOLDING THIS SECURITY AGREES THAT IT WILL FURNISH TO THE ISSUERS AND THE TRUSTEE
SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO
CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING
RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND
AGREES FOR THE BENEFIT OF THE ISSUERS THAT IT IS (1) A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A OR (2) THAT IT IS AN INSTITUTION THAT IS
AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND
NOT FOR DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN
THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2) OF
RULE 902 UNDER THE SECURITIES ACT) REGULATION S UNDER THE SECURITIES ACT.
A-1-2
CENTENNIAL CELLULAR OPERATING CO. LLC
CENTENNIAL COMMUNICATIONS CORP.
CENTENNIAL PUERTO RICO OPERATIONS CORP.
8-1/8% SENIOR NOTE DUE 2014
No. ____ $______________
CUSIP No. 144A: 000000XX0
REGULATION S: X00000XX0
Centennial Cellular Operating Co. LLC, a Delaware limited liability
company (hereinafter called the "Company," which term includes any successors
under the Indenture defined herein), Centennial Communications Corp., a Delaware
corporation (hereinafter called "Centennial," which term includes any successors
under the Indenture), and Centennial Puerto Rico Operations Corp., a Delaware
corporation (hereinafter called "Centennial PR," which term includes any
successors under the Indenture, and, together with the Company and Centennial,
the "Issuers"), for value received, hereby promise to pay to Cede & Co., or
registered assigns, the principal sum of $_____________ dollars, on February 1,
2014.
Interest Payment Dates: August 1 and February 1, commencing August
1, 2004
Record Dates: July 15 and January 15
Reference is made to the further provisions of this Security on the
reverse side, which will, for all purposes, have the same effect as if set forth
at this place.
A-1-3
IN WITNESS WHEREOF, the Company and Centennial have caused this
Instrument to be duly executed under their corporate seal.
Dated:
CENTENNIAL COMMUNICATIONS CORP.
By:
----------------------------------------
Name:
Title:
CENTENNIAL CELLULAR OPERATING CO. LLC
By: Centennial Communications Corp.,
as sole member
By:
----------------------------------------
Name:
Title:
CENTENNIAL PUERTO RICO OPERATIONS CORP.
By:
----------------------------------------
Name:
Title:
A-1-4
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the within-mentioned
Indenture.
Dated:
U.S. BANK NATIONAL ASSOCIATION
as Trustee
By:
-------------------------------------
Authorized Signatory
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[REVERSE SIDE OF NOTE]
CENTENNIAL CELLULAR OPERATING CO. LLC
CENTENNIAL COMMUNICATIONS CORP.
CENTENNIAL PUERTO RICO OPERATIONS CORP.
8-1/8% Senior Note due 2014
Capitalized terms used herein shall have the meaning assigned to
them in the Indenture referred to below unless otherwise indicated.
1. Interest.
Centennial Cellular Operating Co. LLC, a Delaware limited liability
company (hereinafter called the "Company," which term includes any successors
under the Indenture defined herein), Centennial Puerto Rico Operations Corp., a
Delaware corporation (hereinafter called "Centennial PR," which term includes
any successors under the Indenture) and Centennial Communications Corp., a
Delaware corporation (hereinafter called "Centennial," which term includes any
successors under the Indenture, and, together with the Company and Centennial
PR, the "Issuers"), promise to pay interest on the principal amount of this
Security at the rate and in the manner specified below. Interest will accrue at
8-1/8% per annum and will be payable semi-annually in arrears in cash on August
1 and February 1 of each year or if any such day is not a Business Day on the
next succeeding Business Day (each an "Interest Payment Date") commencing August
1, 2004, to Holders of the Securities at the close of business on the
immediately preceding July 15 or January 15, whether or not such date is a
Business Day (each, a "Record Date").
Interest will be computed on the basis of a 360-day year consisting
of twelve 30-day months. Interest shall accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
issuance. To the extent lawful, the Issuers shall pay interest on overdue
principal at the rate of the then applicable interest rate on the Securities;
they shall pay interest on overdue installments of interest (without regard to
any applicable grace periods) at the same rate to the extent lawful.
2. Method of Payment.
The Issuers shall pay interest and Additional Interest, if any, on
the Securities (except defaulted interest) to the Persons who are the registered
Holders at the close of business on the Record Date immediately preceding the
Interest Payment Date. Holders must surrender Securities to a Paying Agent to
collect principal payments. Except as provided below, the Issuers shall pay
principal and interest in such coin or currency of the United States of America
as at the time of payment shall be legal tender for payment of public and
private debts ("U.S. Legal Tender"). However, the Issuers may pay principal and
interest by wire transfer of Federal funds, or interest by its check payable in
such U.S. Legal Tender. The Issuers may deliver any such interest payment to the
Paying Agent or the Issuers may mail any such interest payment to a Holder at
the Holder's registered address.
A-1-6
3. Paying Agent and Registrar.
Initially, U.S. Bank National Association (the "Trustee") will act
as Paying Agent and Registrar. The Issuers may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders. The Issuers or any of
their Subsidiaries may, subject to certain exceptions, act as Paying Agent,
Registrar or co-Registrar.
4. Indenture.
The Issuers issued the Securities under an Indenture, dated as of
February 9, 2004 (the "Indenture"), among the Issuers and the Trustee. The terms
of the Securities include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act, as in effect on the date
of the Indenture. The Securities are subject to all such terms, and Holders of
Securities are referred to the Indenture and said Act for a statement of them.
The Securities are general obligations of the Issuers initially issued in an
aggregate principal amount to $325,000,000. The Indenture pursuant to which this
Security is issued provides for an unlimited amount of Additional Securities to
be issued thereunder.
5. Redemption.
The Securities will be subject to redemption at any time on or after
February 1, 2009, at the option of the Issuers, in whole or in part, on not less
than 30 nor more than 60 days' prior notice, in amounts of $1,000 or an integral
multiple thereof, at the following Redemption Prices (expressed as percentages
of the principal amount), if redeemed during the 12 month period beginning
February 1 of the years indicated below:
Year Redemption Price
---- ----------------
2009.................................. 104.0625%
2010.................................. 102.7083%
2011.................................. 101.3542%
2012 and thereafter................... 100%
in each case, together with accrued and unpaid interest, if any, and Additional
Interest to the Redemption Date (subject to the rights of Holders on relevant
Record Dates to receive interest due on an Interest Payment Date).
In addition, at any time prior to February 1, 2007, the Issuers, at
their option, may use the net cash proceeds of one or more Public Equity
Offerings or Strategic Equity Offerings in a single transaction or a series of
related transactions to redeem up to an aggregate of 35% of the aggregate
principal amount of Securities originally issued under the Indenture at a
Redemption Price equal to 108.125% of the aggregate principal amount thereof,
plus accrued and unpaid interest thereon, if any, to the Redemption Date
(subject to the rights of Holders on relevant Record Dates to receive interest
due on an Interest Payment Date); provided that at least 65% of the initial
aggregate principal amount of Securities remains outstanding immediately after
the
A-1-7
occurrence of such redemption; provided further that any such redemption with
respect to a Strategic Equity Offering may not occur in connection with or after
the occurrence of a Change of Control; and provided further that any such net
proceeds received by Centennial are first contributed to the Company as a
capital contribution prior to any such redemption. In order to effect the
foregoing redemption, the Company must mail a notice of redemption no later than
30 days after the closing of the related Public Equity Offering or Strategic
Equity Offering and must consummate such redemption within 60 days of the
closing of the Public Equity Offering or Strategic Equity Offering.
In addition, the Securities may be redeemed upon a Change of Control
at any time prior to February 1, 2009, at the option of the Issuers, in whole
and not in part, within 60 days of such Change of Control. Prior to February 1,
2006, the Redemption Price will be equal to (i) 108.125% of the principal amount
of the Securities, plus (ii) accrued interest to the Redemption Date (subject to
the rights of Holders on relevant Record Dates to receive interest due on an
Interest Payment Date). On or after February 1, 2006, but prior to February 1,
2009, the Redemption Price will be equal to (i) 100% of the principal amount of
the Securities, plus (ii) accrued interest to the Redemption Date (subject to
the rights of Holders on relevant Record Dates to receive interest due on an
Interest Payment Date) plus (iii) the Applicable Premium, if any.
In addition, the Securities may be redeemed at any time prior to
February 1, 2006, at the option of the Issuers, in whole or in part, with the
net cash proceeds of a sale of assets that would be considered an Asset Sale
within 60 days of such sale of assets at a Redemption Price equal to (i)
108.125% of the principal amount of the Securities, plus (ii) accrued interest
to the Redemption Date (subject to the rights of Holders on relevant Record
Dates to receive interest due on an Interest Payment Date); provided that any
such redemption shall be for (A) Securities with an aggregate principal amount
of at least $50,000,000; provided that immediately after any such redemption,
Securities with an aggregate principal amount of at least $150,000,000 remain
outstanding or (B) all of the outstanding aggregate principal amount of the
Securities.
In the case of a partial redemption, the Trustee shall select the
Securities or portions thereof for redemption in compliance with the
requirements of the principal national securities exchange, if any, on which the
Securities are listed, or if the Securities are not so listed, on a pro rata
basis, by lot or by any other manner as it deems appropriate and fair; provided
that any such redemption pursuant to the provisions relating to a Public Equity
Offering or a Strategic Equity Offering shall be made on a pro rata basis or on
as nearly a pro rata basis as practicable (subject to the procedures of DTC or
any other depositary). The Securities may be redeemed in part in multiples of
$1,000 only.
Any such redemption will comply with Article III of the Indenture.
6. Notice of Redemption.
Except as provided in the next paragraph, notice of redemption will
be sent by first class mail, at least 30 days and not more than 60 days prior to
the Redemption Date, to the Holder of each Security to be redeemed at such
Holder's last address as then shown upon the registry books of the Registrar.
A-1-8
Any notice which relates to a Security to be redeemed in part only
must state the portion of the principal amount to be redeemed and must state
that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities in a principal amount equal to the
unredeemed portion thereof will be issued. On and after the date fixed for
redemption, interest will cease to accrue on the portions of the Securities
called for redemption.
7. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder may register
the transfer of, or exchange Securities in accordance with, the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange any Securities selected for redemption prior to 15 days after the
notice of redemption.
8. Persons Deemed Owners.
The registered Holder of a Security may be treated as the owner of
it for all purposes.
9. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent(s) will pay the money back to
the Issuers. After that, all liability of the Trustee and such Paying Agent(s)
with respect to such money shall cease.
10. Defeasance and Discharge Prior to Redemption or Maturity.
Except as set forth in the Indenture, if the Issuers irrevocably
deposit with the Trustee, in trust, for the benefit of the Holders, U.S. Legal
Tender and Government Securities or a combination thereof, in such amounts as
will be sufficient in the opinion of a nationally recognized firm of independent
public accountants selected by the Trustee, to pay the principal of, premium, if
any, and interest on the Securities to redemption or maturity and comply with
the other provisions of the Indenture relating thereto, the Issuers will be
discharged from certain provisions of the Indenture and the Securities
(including the financial covenants, but excluding their obligation to pay the
principal of (and premium, if any) and interest on the Securities). Upon
satisfaction of certain additional conditions set forth in the Indenture, the
Company may elect to have the Issuers' obligations discharged with respect to
outstanding Securities.
In addition, the Indenture will be discharged in full as to all
outstanding Securities when (a) either (i) all Securities are delivered to the
Trustee for authentication or (ii) all Securities not so delivered have become
due and payable, will become due and payable within one year or are to be called
for redemption within one year, and in either event the Issuers have deposited
with the Trustee an amount in United States dollars sufficient to pay and
discharge all of the Securities, (b) the Issuers have paid all other sums
payable under the Indenture by them and (c) the Issuers have delivered an
Officers' Certificate and Opinion of Counsel related thereto.
A-1-9
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may
be amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
or make any other change that does not adversely affect the rights of any Holder
of a Security.
12. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the
Company and its Restricted Subsidiaries to, among other things, incur additional
Indebtedness and Disqualified Capital Stock, pay dividends or make certain other
restricted payments, enter into certain transactions with Affiliates, incur
Liens, sell assets, merge or consolidate with any other Person or transfer (by
lease, assignment or otherwise) substantially all of the properties and assets
of the Company. The limitations are subject to a number of important
qualifications and exceptions. The Issuers must periodically report to the
Trustee on compliance with such limitations.
13. Repurchase at Option of Holder.
(a) If there is a Change of Control, the Issuers shall be required
to offer to purchase on the Change of Control Purchase Date all outstanding
Securities at a purchase price equal to 101% of the principal amount thereof,
together with any accrued and unpaid interest and Additional Interest, to the
Change of Control Purchase Date. Holders of Securities will receive a Change of
Control Offer from the Issuers prior to any related Change of Control Purchase
Date and may elect to have such Securities purchased by properly tendering such
Securities pursuant to the Change of Control Offer. Notwithstanding the
foregoing, the Issuers will not be required to make a Change of Control Offer
if, upon a Change of Control, a third party (A) makes an offer to purchase
Securities in the manner, at the times and otherwise in compliance with the
requirements set forth in Article XI of the Indenture and (B) purchases all
Securities validly tendered and not withdrawn under such offer to purchase.
(b) The Indenture imposes certain limitations on the ability of the
Company and its Restricted Subsidiaries to sell assets. In the event the
proceeds from a permitted Asset Sale exceed certain amounts, as specified in the
Indenture, the Company will be required either to reinvest the proceeds of such
Asset Sale as described in the Indenture or to make an offer to purchase each
Holder's Securities at 100% of the principal amount thereof, plus accrued
interest, if any, to the purchase date.
14. Successors.
When a successor assumes all the obligations of its predecessor
under the Securities and the Indenture, the predecessor will be released from
those obligations.
A-1-10
15. Defaults and Remedies.
If an Event of Default occurs and is continuing (other than as Event
of Default relating to certain events of bankruptcy, insolvency or
reorganization), then in every such case, unless the principal of all of the
Securities shall have already become due and payable, either the Trustee or the
Holders of 25% in aggregate principal amount of Securities then outstanding may
declare all the Securities to be due and payable immediately in the manner and
with the effect provided in the Indenture. The Holders of Securities may not
enforce the Indenture or the Securities except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Securities. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Securities then outstanding may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of Securities notice of any continuing Default or Event of
Default (except a Default in payment of principal or interest), if it determines
that withholding notice is in their interest.
16. Trustee Dealings with Issuers.
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, perform investment advisory
or other management services and perform services for the Issuers or their
Affiliates, and may otherwise deal with the Issuers or their Affiliates as if it
were not the Trustee.
17. No Recourse Against Others.
No direct or indirect stockholder (or partner, limited liability
company member or employee of a stockholder), employee, officer or director, as
such, past, present or future, of the Issuers or any successor entity or any
Affiliate thereof shall have any personal liability in respect of the
obligations of the Issuers under the Securities or the Indenture by reason of
his or its status as such stockholder (or partner, limited liability company
member or employee of a stockholder), employee, officer or director. Each Holder
of a Security by accepting a Security waives and releases all such liability.
The waiver and release are part of the consideration for the issuance of the
Securities.
18. Authentication.
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this
Security.
19. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
A-1-11
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuers will cause CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
21. Additional Rights of Holders.
In addition to the rights provided to Holders of Securities under
the Indenture, Holders of Securities shall have all the rights set forth in a
Registration Rights Agreement dated as of February 9, 2004, among the Issuers
and Xxxxxx Brothers Inc. and Credit Suisse First Boston LLC, as representative
of several Initial Purchasers named therein. In the case of Additional
Securities, Holders of Securities shall have the rights set forth in one or more
registration rights agreements with the Issuers, if any (collectively, the
"Registration Rights Agreement").
A-1-12
FORM OF ASSIGNMENT
I or we assign this Security to:
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
(Print or type name, address and zip code of assignee)
---------------------------------------------------------------------
Please insert Social Security or other identifying number of assignee
and irrevocably appoint __________________________________________________ agent
to transfer this Security on the books of the Issuers. The agent may substitute
another to act for him.
Dated: Signed:
--------------------------- -----------------------------------
(Sign exactly as name appears on
the other side of this Security)
Signature(s) must be guaranteed by an eligible guarantor institution (banks,
stock brokers, savings and loan associations and credit unions with membership
in an approved signature guarantee medallion program) pursuant to Securities and
Exchange Commission Rule 17Ad-15.
A-1-13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuers
pursuant to Section 4.14 or Article XI of the Indenture, check the appropriate
box:
[ ] Section 4.14 [ ] Article XI
If you want to elect to have only part of this Security purchased by the
Issuers pursuant to Section 4.14 or Article XI of the Indenture, as the case may
be, state the principal amount you want to be purchased: $__________
Date: Signature:
------------------ ------------------------------------------
(Sign exactly as your name appears on
the other side of this Security)
A-1-14
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES(1)
The following exchanges of a part of this Global Security for Definitive
Securities have been made:
Principal Amount of
Amount of decrease this Global Security Signature of
in Principal Amount Amount of increase in following each authorized officer
of this Global Principal Amount of decrease (or of Trustee or
Date of Exchange Security this Global Security increase) Securities Custodian
---------------- ------------------- --------------------- -------------------- --------------------
----------
1 This schedule should only be added if the Security is issued in global
form.
X-0-00
XXXXXXX X-0
[FACE OF NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO CENTENNIAL
COMMUNICATIONS CORP., CENTENNIAL CELLULAR OPERATING CO. LLC AND CENTENNIAL
PUERTO RICO OPERATIONS CORP. (COLLECTIVELY, THE "ISSUERS") OR THEIR AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.6 OF THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6(a) OF THE INDENTURE,
(III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
CENTENNIAL.
THIS SECURITY AND THE RELATED GUARANTEE (TOGETHER, "THE SECURITY") HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT").
THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE
ISSUERS THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
(X) PRIOR TO THE SECOND ANNIVERSARY OF THE ISSUANCE HEREOF (OR ANY PREDECESSOR
SECURITY HERETO) OR (Y) BY ANY HOLDER THAT WAS AN AFFILIATE OF ANY OF THE
ISSUERS AT ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH TRANSFER,
IN EITHER CASE, OTHER THAN (1) TO THE ISSUERS, (2) SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE
OF TRANSFER ON THE REVERSE OF THIS SECURITY), (3) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH REGULATION S UNDER THE
A-2-1
SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (4) TO AN INSTITUTION
THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON
THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY) THAT IS ACQUIRING
THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A
CERTIFICATE WHICH MAY BE OBTAINED FROM THE ISSUERS OR THE TRUSTEE IS DELIVERED
BY THE TRANSFEREE TO THE ISSUERS AND TRUSTEE, (5) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER
THE SECURITIES ACT OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES. AN INSTITUTIONAL ACCREDITED INVESTOR
HOLDING THIS SECURITY AGREES THAT IT WILL FURNISH TO THE ISSUERS AND THE TRUSTEE
SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO
CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING
RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND
AGREES FOR THE BENEFIT OF THE ISSUERS THAT IT IS (1) A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A OR (2) THAT IT IS AN INSTITUTION THAT IS
AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND
NOT FOR DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN
THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2) OF
RULE 902 UNDER THE SECURITIES ACT) REGULATION S UNDER THE SECURITIES ACT.
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE SECURITIES, ARE
AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL SECURITY SHALL BE
ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
A-2-2
CENTENNIAL CELLULAR OPERATING CO. LLC
CENTENNIAL COMMUNICATIONS CORP.
CENTENNIAL PUERTO RICO OPERATIONS CORP.
8-1/8% SENIOR NOTE DUE 2014
No. ____ $______________
CUSIP No. 144A: 000000XX0
REGULATION S: X00000XX0
Centennial Cellular Operating Co. LLC, a Delaware limited liability
company (hereinafter called the "Company," which term includes any successors
under the Indenture defined herein), Centennial Communications Corp., a Delaware
corporation (hereinafter called "Centennial," which term includes any successors
under the Indenture), and Centennial Puerto Rico Operations Corp., a Delaware
corporation (hereinafter called "Centennial PR," which term includes any
successors under the Indenture, and, together with the Company and Centennial,
the "Issuers"), for value received, hereby promise to pay to Cede & Co., or
registered assigns, the principal sum of $_____________ dollars, on February 1,
2014.
Interest Payment Dates: August 1 and February 1, commencing August 1, 2004
Record Dates: July 15 and January 15
Reference is made to the further provisions of this Security on the
reverse side, which will, for all purposes, have the same effect as if set forth
at this place.
A-2-3
IN WITNESS WHEREOF, the Company and Centennial have caused this Instrument
to be duly executed under their corporate seal.
Dated:
CENTENNIAL COMMUNICATIONS CORP.
By:
-----------------------------------
Name:
Title:
CENTENNIAL CELLULAR OPERATING CO. LLC
By: Centennial Communications Corp.,
as sole member
By:
-----------------------------------
Name:
Title:
CENTENNIAL PUERTO RICO OPERATIONS CORP.
By:
-----------------------------------
Name:
Title:
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the within-mentioned Indenture.
Dated:
U.S. BANK NATIONAL ASSOCIATION
as Trustee
By:
-----------------------------------
Authorized Signatory
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[REVERSE SIDE OF NOTE]
CENTENNIAL CELLULAR OPERATING CO. LLC
CENTENNIAL COMMUNICATIONS CORP.
CENTENNIAL PUERTO RICO OPERATIONS CORP.
8-1/8% Senior Note due 2014
Capitalized terms used herein shall have the meaning assigned to them in
the Indenture referred to below unless otherwise indicated.
1. Interest.
Centennial Cellular Operating Co. LLC, a Delaware limited liability
company (hereinafter called the "Company," which term includes any successors
under the Indenture defined herein), Centennial Puerto Rico Operations Corp., a
Delaware corporation (hereinafter called "Centennial PR," which term includes
any successors under the Indenture defined herein) and Centennial Communications
Corp., a Delaware corporation (hereinafter called "Centennial," which term
includes any successors under the Indenture defined herein, and together with
the Company and Centennial PR, the "Issuers"), promise to pay interest on the
principal amount of this Security at the rate and in the manner specified below.
Interest will accrue at 8-1/8% per annum and will be payable semi-annually in
arrears in cash on August 1 and February 1 of each year or if any such day is
not a Business Day on the next succeeding Business Day (each an "Interest
Payment Date") commencing August 1, 2004, to Holders of the Securities at the
close of business on the immediately preceding July 15 or January 15, whether or
not such date is a Business Day (each, a "Record Date").
Interest will be computed on the basis of a 360-day year consisting of
twelve 30-day months. Interest shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
issuance. To the extent lawful, the Issuers shall pay interest on overdue
principal at the rate of the then applicable interest rate on the Securities;
they shall pay interest on overdue installments of interest (without regard to
any applicable grace periods) at the same rate to the extent lawful.
2. Method of Payment.
The Issuers shall pay interest and Additional Interest, if any, on the
Securities (except defaulted interest) to the Persons who are the registered
Holders at the close of business on the Record Date immediately preceding the
Interest Payment Date. Holders must surrender Securities to a Paying Agent to
collect principal payments. Except as provided below, the Issuers shall pay
principal and interest in such coin or currency of the United States of America
as at the time of payment shall be legal tender for payment of public and
private debts ("U.S. Legal Tender"). However, the Issuers may pay principal and
interest by wire transfer of Federal funds, or interest by its check payable in
such U.S. Legal Tender. The Issuers may deliver any such interest payment to the
Paying Agent or the Issuers may mail any such interest payment to a Holder at
the Holder's registered address.
A-2-6
3. Paying Agent and Registrar.
Initially, U.S. Bank National Association (the "Trustee") will act as
Paying Agent and Registrar. The Issuers may change any Paying Agent, Registrar
or co-Registrar without notice to the Holders. The Issuers or any of their
Subsidiaries may, subject to certain exceptions, act as Paying Agent, Registrar
or co-Registrar.
4. Indenture.
The Issuers issued the Securities under an Indenture, dated as of February
9, 2004 (the "Indenture"), among the Issuers and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act, as in effect on the date of
the Indenture. The Securities are subject to all such terms, and Holders of
Securities are referred to the Indenture and said Act for a statement of them.
The Securities are general obligations of the Issuers initially issued in an
aggregate principal amount to $325,000,000. The Indenture pursuant to which this
Security is issued provides for an unlimited amount of Additional Securities to
be issued thereunder.
5. Redemption.
The Securities will be subject to redemption at any time on or after
February 1, 2009, at the option of the Issuers, in whole or in part, on not less
than 30 nor more than 60 days' prior notice, in amounts of $1,000 or an integral
multiple thereof, at the following Redemption Prices (expressed as percentages
of the principal amount), if redeemed during the 12 month period beginning
February 1 of the years indicated below:
Year Redemption Price
---- ----------------
2009................................................... 104.0625%
2010................................................... 102.7083%
2011................................................... 101.3542%
2012 and thereafter.................................... 100%
in each case, together with accrued and unpaid interest, if any, and Additional
Interest to the Redemption Date (subject to the rights of Holders on relevant
Record Dates to receive interest due on an Interest Payment Date).
In addition, at any time prior to February 1, 2007, the Issuers, at their
option, may use the net cash proceeds of one or more Public Equity Offerings or
Strategic Equity Offerings in a single transaction or a series of related
transactions to redeem up to an aggregate of 35% of the aggregate principal
amount of Securities originally issued under the Indenture at a Redemption Price
equal to 108.125% of the aggregate principal amount thereof, plus accrued and
unpaid interest thereon, if any, to the Redemption Date (subject to the rights
of Holders on relevant Record Dates to receive interest due on an Interest
Payment Date); provided that at least 65% of the initial aggregate principal
amount of Securities remains outstanding immediately after the
A-2-7
occurrence of such redemption; provided further that any such redemption with
respect to a Strategic Equity Offering may not occur in connection with or after
the occurrence of a Change of Control; and provided further that any such net
proceeds received by Centennial are first contributed to the Company as a
capital contribution prior to any such redemption. In order to effect the
foregoing redemption, the Company must mail a notice of redemption no later than
30 days after the closing of the related Public Equity Offering or Strategic
Equity Offering and must consummate such redemption within 60 days of the
closing of the Public Equity Offering or Strategic Equity Offering.
In addition, the Securities may be redeemed upon a Change of Control at
any time prior to February 1, 2009, at the option of the Issuers, in whole and
not in part, within 60 days of such Change of Control. Prior to February 1,
2006, the Redemption Price will be equal to (i) 108.125% of the principal amount
of the Securities, plus (ii) accrued interest to the Redemption Date (subject to
the rights of Holders on relevant Record Dates to receive interest due on an
Interest Payment Date). On or after February 1, 2006, but prior to February 1,
2009, the Redemption Price will be equal to (i) 100% of the principal amount of
the Securities, plus (ii) accrued interest to the Redemption Date (subject to
the rights of Holders on relevant Record Dates to receive interest due on an
Interest Payment Date) plus (iii) the Applicable Premium, if any.
In addition, the Securities may be redeemed at any time prior to February
1, 2006, at the option of the Issuers, in whole or in part, with the net cash
proceeds of a sale of assets that would be considered an Asset Sale within 60
days of such sale of assets at a Redemption Price equal to (i) 108.125% of the
principal amount of the Securities, plus (ii) accrued interest to the Redemption
Date (subject to the rights of Holders on relevant Record Dates to receive
interest due on an Interest Payment Date); provided that any such redemption
shall be for (A) Securities with an aggregate principal amount of at least
$50,000,000; provided that immediately after any such redemption, Securities
with an aggregate principal amount of at least $150,000,000 remain outstanding
or (B) all of the outstanding aggregate principal amount of the Securities.
In the case of a partial redemption, the Trustee shall select the
Securities or portions thereof for redemption in compliance with the
requirements of the principal national securities exchange, if any, on which the
Securities are listed, or if the Securities are not so listed, on a pro rata
basis, by lot or by any other manner as it deems appropriate and fair; provided
that any such redemption pursuant to the provisions relating to a Public Equity
Offering or a Strategic Equity Offering shall be made on a pro rata basis or on
as nearly a pro rata basis as practicable (subject to the procedures of DTC or
any other depositary). The Securities may be redeemed in part in multiples of
$1,000 only.
Any such redemption will comply with Article III of the Indenture.
6. Notice of Redemption.
Except as provided in the next paragraph, notice of redemption will be
sent by first class mail, at least 30 days and not more than 60 days prior to
the Redemption Date, to the Holder of each Security to be redeemed at such
Holder's last address as then shown upon the registry books of the Registrar.
A-2-8
Any notice which relates to a Security to be redeemed in part only must
state the portion of the principal amount to be redeemed and must state that on
and after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities in a principal amount equal to the unredeemed portion
thereof will be issued. On and after the date fixed for redemption, interest
will cease to accrue on the portions of the Securities called for redemption.
7. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in denominations
of $1,000 and integral multiples of $1,000. A Holder may register the transfer
of, or exchange Securities in accordance with, the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not register the transfer of or exchange any
Securities selected for redemption prior to 15 days after the notice of
redemption.
8. Persons Deemed Owners.
The registered Holder of a Security may be treated as the owner of it for
all purposes.
9. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee and the Paying Agent(s) will pay the money back to the
Issuers. After that, all liability of the Trustee and such Paying Agent(s) with
respect to such money shall cease.
10. Defeasance and Discharge Prior to Redemption or Maturity.
Except as set forth in the Indenture, if the Issuers irrevocably deposit
with the Trustee, in trust, for the benefit of the Holders, U.S. Legal Tender
and Government Securities or a combination thereof, in such amounts as will be
sufficient in the opinion of a nationally recognized firm of independent public
accountants selected by the Trustee, to pay the principal of, premium, if any,
and interest on the Securities to redemption or maturity and comply with the
other provisions of the Indenture relating thereto, the Issuers will be
discharged from certain provisions of the Indenture and the Securities
(including the financial covenants, but excluding their obligation to pay the
principal of (and premium, if any) and interest on the Securities). Upon
satisfaction of certain additional conditions set forth in the Indenture, the
Company may elect to have the Issuers' obligations discharged with respect to
outstanding Securities.
In addition, the Indenture will be discharged in full as to all
outstanding Securities when (a) either (i) all Securities are delivered to the
Trustee for authentication or (ii) all Securities not so delivered have become
due and payable, will become due and payable within one year or are to be called
for redemption within one year, and in either event the Issuers have deposited
with the Trustee an amount in United States dollars sufficient to pay and
discharge all of the Securities, (b) the Issuers have paid all other sums
payable under the Indenture by them and (c) the Issuers have delivered an
Officers' Certificate and Opinion of Counsel related thereto.
A-2-9
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
or make any other change that does not adversely affect the rights of any Holder
of a Security.
12. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the Company
and its Restricted Subsidiaries to, among other things, incur additional
Indebtedness and Disqualified Capital Stock, pay dividends or make certain other
restricted payments, enter into certain transactions with Affiliates, incur
Liens, sell assets, merge or consolidate with any other Person or transfer (by
lease, assignment or otherwise) substantially all of the properties and assets
of the Company. The limitations are subject to a number of important
qualifications and exceptions. The Issuers must periodically report to the
Trustee on compliance with such limitations.
13. Repurchase at Option of Holder.
(a) If there is a Change of Control, the Issuers shall be required to
offer to purchase on the Change of Control Purchase Date all outstanding
Securities at a purchase price equal to 101% of the principal amount thereof,
together with any accrued and unpaid interest and Additional Interest, to the
Change of Control Purchase Date. Holders of Securities will receive a Change of
Control Offer from the Issuers prior to any related Change of Control Purchase
Date and may elect to have such Securities purchased by properly tendering such
Securities pursuant to the Change of Control Offer. Notwithstanding the
foregoing, the Issuers will not be required to make a Change of Control Offer
if, upon a Change of Control, a third party (A) makes an offer to purchase
Securities in the manner, at the times and otherwise in compliance with the
requirements set forth in Article XI of the Indenture and (B) purchases all
Securities validly tendered and not withdrawn under such offer to purchase.
(b) The Indenture imposes certain limitations on the ability of the
Company and its Restricted Subsidiaries to sell assets. In the event the
proceeds from a permitted Asset Sale exceed certain amounts, as specified in the
Indenture, the Company will be required either to reinvest the proceeds of such
Asset Sale as described in the Indenture or to make an offer to purchase each
Holder's Securities at 100% of the principal amount thereof, plus accrued
interest, if any, to the purchase date.
14. Successors.
When a successor assumes all the obligations of its predecessor under the
Securities and the Indenture, the predecessor will be released from those
obligations.
A-2-10
15. Defaults and Remedies.
If an Event of Default occurs and is continuing (other than as Event of
Default relating to certain events of bankruptcy, insolvency or reorganization),
then in every such case, unless the principal of all of the Securities shall
have already become due and payable, either the Trustee or the Holders of 25% in
aggregate principal amount of Securities then outstanding may declare all the
Securities to be due and payable immediately in the manner and with the effect
provided in the Indenture. The Holders of Securities may not enforce the
Indenture or the Securities except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority in aggregate
principal amount of the Securities then outstanding may direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from Holders of
Securities notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest), if it determines that withholding
notice is in their interest.
16. Trustee Dealings with Issuers.
The Trustee under the Indenture, in its individual or any other capacity,
may make loans to, accept deposits from, perform investment advisory or other
management services and perform services for the Issuers or their Affiliates,
and may otherwise deal with the Issuers or their Affiliates as if it were not
the Trustee.
17. No Recourse Against Others.
No direct or indirect stockholder (or partner, limited liability company
member or employee of a stockholder), employee, officer or director, as such,
past, present or future, of the Issuers or any successor entity or any Affiliate
thereof shall have any personal liability in respect of the obligations of the
Issuers under the Securities or the Indenture by reason of his or its status as
such stockholder (or partner, limited liability company member or employee of a
stockholder), employee, officer or director. Each Holder of a Security by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
18. Authentication.
This Security shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on the other side of this Security.
19. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Security
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
A-2-11
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuers will cause CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
21. Additional Rights of Holders.
In addition to the rights provided to Holders of Securities under the
Indenture, Holders of Securities shall have all the rights set forth in a
Registration Rights Agreement dated as of February 9, 2004, among the Issuers,
Xxxxxx Brothers Inc. and Credit Suisse First Boston LLC, as representative of
several Initial Purchasers named therein. In the case of Additional Securities,
Holders of Securities shall have the rights set forth in one or more
registration rights agreements with the Issuers, if any (collectively, the
"Registration Rights Agreement").
A-2-12
FORM OF ASSIGNMENT
I or we assign this Security to:
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
(Print or type name, address and zip code of assignee)
--------------------------------------------------------------------------------
Please insert Social Security or other identifying number of assignee
and irrevocably appoint agent to
-----------------------------------------------
transfer this Security on the books of the Issuers. The agent may substitute
another to act for him.
Dated: Signed:
----------------------- --------------------------------------
(Sign exactly as name appears on
the other side of this Security)
Signature(s) must be guaranteed by an eligible guarantor institution (banks,
stock brokers, savings and loan associations and credit unions with membership
in an approved signature guarantee medallion program) pursuant to Securities and
Exchange Commission Rule 17Ad-15.
A-2-13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuers
pursuant to Section 4.14 or Article XI of the Indenture, check the appropriate
box:
[ ] Section 4.14 [ ] Article XI
If you want to elect to have only part of this Security purchased by
the Issuers pursuant to Section 4.14 or Article XI of the Indenture, as the case
may be, state the principal amount you want to be purchased: $__________
Dated: Signed:
----------------------- --------------------------------------
(Sign exactly as name appears on
the other side of this Security)
A-2-14
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES(1)
-------------------------------------------------
The following exchanges of a part of this Global Security for
Definitive Securities have been made:
Principal Amount of
Amount of decrease this Global Security Signature of
in Principal Amount Amount of increase in following each authorized officer
of this Global Principal Amount of decrease (or of Trustee or
Date of Exchange Security this Global Security increase) Securities Custodian
---------------- ------------------- --------------------- -------------------- --------------------
----------
1 This schedule should only be added if the Security is issued in global
form.
A-2-15
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Centennial Communications Corp.
Centennial Cellular Operating Co. LLC
Centennial Puerto Rico Operations Corp.
0000 Xxxxx 00, Xxxxxxxx X
Xxxx, Xxx Xxxxxx 00000
Attention: Xxxx X. Xxxx
Facsimile: 000-000-0000
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services
Re: 8-1/8% Senior Notes due 2014
Reference is hereby made to the Indenture, dated as of February 9, 2004
(the "Indenture"), among Centennial Communications Corp., a Delaware
corporation, Centennial Puerto Rico Operations Corp., a Delaware corporation and
Centennial Cellular Operating Co. LLC, a Delaware limited liability company
(together, the "Issuers"), and U.S. Bank National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
___________________ (the "Transferor") owns and proposes to transfer the
Note(s) or interest in such Note(s) specified in Annex A hereto, in the
principal amount at maturity of $___________ in such Note(s) or interests (the
"Transfer"), to ___________________________ (the "Transferee"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1. Check if Transferee will take delivery of a beneficial interest in
the 144A Global Note or a Definitive Note Pursuant to Rule 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer"
B-1
within the meaning of Rule 144A in a transaction meeting the requirements of
Rule 144A and such Transfer is in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the 144A Global
Note and/or the Definitive Note and in the Indenture and the Securities Act.
2. Check if Transferee will take delivery of a beneficial interest in
the Regulation S Temporary Global Note, the Regulation S Permanent Global Note
or a Definitive Note pursuant to Regulation S. The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act
and, accordingly, the Transferor hereby further certifies that (i) the Transfer
is not being made to a person in the United States and (x) at the time the buy
order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on its behalf reasonably believed and believes
that the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the requirements of
Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Restricted Period, the transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person (other than
an Initial Purchaser). Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on Transfer enumerated in
the Private Placement Legend printed on the Regulation S Permanent Global Note,
the Regulation S Temporary Global Note and/or the Definitive Note and in the
Indenture and the Securities Act.
3. Check and complete if Transferee will take delivery of a beneficial
interest in the IAI Global Note or a Definitive Note pursuant to any provision
of the Securities Act other than Rule 144A or Regulation S. The Transfer is
being effected in compliance with the transfer restrictions applicable to
beneficial interests in Restricted Global Notes and Restricted Definitive Notes
and pursuant to and in accordance with the Securities Act and any applicable
blue sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) such Transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act;
or
(b) such Transfer is being effected to the Issuers or a subsidiary
thereof;
or
B-2
(c) such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor
hereby further certifies that it has not engaged in any general solicitation
within the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Definitive Notes and the requirements of
the exemption claimed, which certification is supported by (1) a certificate
executed by the Transferee in the form of Exhibit D to the Indenture and (2) an
Opinion of Counsel provided by the Transferor or the Transferee (a copy of which
the Transferor has attached to this certification), to the effect that such
Transfer is in compliance with the Securities Act. Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the IAI Global
Note and/or the Definitive Notes and in the Indenture and the Securities Act.
4. Check if Transferee will take delivery of a beneficial interest in
an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) Check if Transfer is Pursuant to Rule 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(b) Check if Transfer is Pursuant to Regulation S. (i) The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(c) Check if Transfer is Pursuant to Other Exemption. (i) The Transfer
is being effected pursuant to and in compliance with an exemption from the
registration
B-3
requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and
in compliance with the transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any State of the United States and (ii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will not be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes or Restricted
Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers.
----------------------------------------
[Insert Name of Transferor]
By:
-----------------------------------------
Name:
Title:
Dated:
-----------------------------
B-4
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (A) OR (B)]
(A) a beneficial interest in the:
(i) 144A Global Note (CUSIP __________); or
(ii) Regulation S Global Note (CUSIP __________); or
(iii) IAI Global Note (CUSIP __________); or
(B) a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(A) a beneficial interest in the:
(i) 144A Global Note (CUSIP __________); or
(ii) Regulation S Global Note (CUSIP __________); or
(iii) IAI Global Note (CUSIP ); or
(iv) Unrestricted Global Note (CUSIP ); or
(B) a Restricted Definitive Note; or
(C) an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Centennial Communications Corp.
Centennial Cellular Operating Co. LLC
Centennial Puerto Rico Operations Corp.
0000 Xxxxx 00, Xxxxxxxx X
Xxxx, Xxx Xxxxxx 00000
Attention: Xxxx X. Xxxx
Facsimile: 000-000-0000
U.S. Bank National Association.
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services
Re: 8-1/8% Senior Notes due 2014
Reference is hereby made to the Indenture, dated as of February 9, 2004
(the "Indenture"), among Centennial Communications Corp., a Delaware
corporation, Centennial Puerto Rico Operations Corp., a Delaware corporation,
and Centennial Cellular Operating Co. LLC, a Delaware limited liability company
(together, the "Issuers"), the Guarantor, and U.S. Bank National Association, as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
__________________________ (the "Owner") owns and proposes to exchange
the Note(s) or interest in such Note(s) specified herein, in the principal
amount at maturity of $____________ in such Note(s) or interests (the
"Exchange"). In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a
Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests
in an Unrestricted Global Note
(a) Check if Exchange is from beneficial interest in a
Restricted Global Note to beneficial interest in an Unrestricted Global
Note. In connection with the Exchange of the Owner's beneficial
interest in a Restricted Global Note for a beneficial interest in an
Unrestricted Global Note in an equal principal amount at maturity, the
Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable
to the Global Notes and pursuant to and in accordance with the United
States Securities Act of 1933, as amended (the "Securities Act"), (iii)
the restrictions on transfer
C-1
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest in an Unrestricted Global Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(b) Check if Exchange is from beneficial interest in a Restricted
Global Note to Unrestricted Definitive Note. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note
for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and
pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Definitive Note is being acquired in
compliance with any applicable blue sky securities laws of any state of
the United States.
(c) Check if Exchange is from Restricted Definitive Note to
beneficial interest in an Unrestricted Global Note. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest
in an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest is being acquired in
compliance with any applicable blue sky securities laws of any state of
the United States.
(d) Check if Exchange is from Restricted Definitive Note to
Unrestricted Definitive Note. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Unrestricted
Definitive Note is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in
Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests
in Restricted Global Notes
(a) Check if Exchange is from beneficial interest in a Restricted
Global Note to Restricted Definitive Note. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount at maturity, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed
C-2
Exchange in accordance with the terms of the Indenture, the Restricted
Definitive Note issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Definitive Note and in the Indenture and the Securities Act.
(b) Check if Exchange is from Restricted Definitive Note to beneficial
interest in a Restricted Global Note. In connection with the Exchange of the
Owner's Restricted Definitive Note for a beneficial interest in the [CHECK ONE]
144A Global Note, Regulation S Global Note, IAI Global
Note with an equal principal amount at maturity, the Owner hereby certifies
(i) the beneficial interest is being acquired for the Owner's own account
without transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States. Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
beneficial interest issued will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the relevant Restricted
Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers.
--------------------------------
[Insert Name of Transferor]
By:
--------------------------------
Name:
Title:
Dated:
-----------------------------
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
[ ]
Re: 8-1/8% Senior Notes due 2014
Reference is hereby made to the Indenture, dated as of February 9, 2004
(the "Indenture"), among Centennial Communications Corp., a Delaware
corporation, Centennial Puerto Rico Operations Corp., a Delaware corporation,
Centennial Cellular Operating Co. LLC, a Delaware limited liability company
(together, the "Issuers"), the Guarantor, and U.S. Bank National Association, as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount at maturity of:
(a) [ ] beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Issuers or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Issuers a signed letter
substantially in the form of this letter and an Opinion of Counsel in form
reasonably acceptable to the Issuers to the effect that such transfer is in
compliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
provisions of Rule 144(k) under the Securities Act or (F)
D-1
pursuant to an effective registration statement under the Securities Act, and we
further agree to provide to any person purchasing the Definitive Note or
beneficial interest in a Global Note from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Issuers such certifications, legal opinions and other information as you and the
Issuers may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased
by us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Issuers are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
-------------------------------------------
[Insert Name of Accredited Investor]
By:
--------------------------------------------
Name:
Title:
Dated:
-----------------------------
D-2
