EXHIBIT 4.6
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CENTENNIAL COMMUNICATIONS CORP.
and
CENTENNIAL CELLULAR OPERATING CO. LLC.,
as Issuers,
and
CENTENNIAL PUERTO RICO OPERATIONS CORP.,
as Initial Guarantor
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
--------------------------
INDENTURE
Dated as of June 20, 2003
$500,000,000 10-1/8% Senior Notes due 2013
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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.............................................................. 30
SECTION 2.5. Securityholder Lists.............................................................................. 30
SECTION 2.6. Transfer and Exchange............................................................................. 30
SECTION 2.7. Replacement Securities............................................................................ 43
SECTION 2.8. Outstanding Securities............................................................................ 44
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.............................................................................. 47
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 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............................................................ 67
SECTION 4.20. Amendments to Mezzanine Financing................................................................ 68
SECTION 4.21. Waiver of Compliance With Certain Covenants...................................................... 68
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1. Limitation on Merger, Sale or Consolidation....................................................... 69
SECTION 5.2. Successor Corporation Substituted................................................................. 70
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.................................................................. 74
SECTION 6.5. Trustee May Enforce Claims Without Possession of Securities....................................... 75
SECTION 6.6. Priorities........................................................................................ 75
SECTION 6.7. Limitation on Suits............................................................................... 75
SECTION 6.8. Unconditional Right of Holders to Receive Principal, Premium, Interest and Additional Interest.... 76
SECTION 6.9. Rights and Remedies Cumulative.................................................................... 76
SECTION 6.10. Delay or Omission Not Waiver..................................................................... 76
SECTION 6.11. Control by Holders............................................................................... 77
SECTION 6.12. Waiver of Past Default........................................................................... 77
SECTION 6.13. Undertaking for Costs............................................................................ 77
SECTION 6.14. Restoration of Rights and Remedies............................................................... 78
ARTICLE VII
TRUSTEE
SECTION 7.1. Duties of Trustee................................................................................. 78
SECTION 7.2. Rights of Trustee................................................................................. 79
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SECTION 7.3. Individual Rights of Trustee...................................................................... 80
SECTION 7.4. Trustee's Disclaimer.............................................................................. 80
SECTION 7.5. Notice of Default................................................................................. 80
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.................................................................. 82
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.......................................... 83
SECTION 8.2. Legal Defeasance and Discharge.................................................................... 84
SECTION 8.3. Covenant Defeasance............................................................................... 84
SECTION 8.4. Conditions to Legal or Covenant Defeasance........................................................ 84
SECTION 8.5. Deposited U.S. Legal Tender and Government Securities to be Held in Trust; Other Miscellaneous
Provisions............................................................................... 86
SECTION 8.6. Repayment to the Issuers.......................................................................... 86
SECTION 8.7. Reinstatement..................................................................................... 87
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1. Supplemental Indentures Without Consent of Holders................................................ 87
SECTION 9.2. Amendments, Supplemental Indentures and Waivers With Consent of Holders........................... 88
SECTION 9.3. Compliance With TIA............................................................................... 89
SECTION 9.4. Revocation and Effect of Consents................................................................. 89
SECTION 9.5. Notation on or Exchange of Securities............................................................. 90
SECTION 9.6. Trustee to Sign Amendments, Etc................................................................... 90
ARTICLE X
GUARANTEE
SECTION 10.1. Guarantee........................................................................................ 91
SECTION 10.2. Future Guarantors................................................................................ 92
SECTION 10.3. Limitation of Guarantors' Liability.............................................................. 92
SECTION 10.4. Subrogation...................................................................................... 93
SECTION 10.5. Benefits Acknowledged............................................................................ 93
SECTION 10.6. Contribution..................................................................................... 93
ARTICLE XI
RIGHT TO REQUIRE REPURCHASE
SECTION 11.1. Repurchase of Securities at Option of the Holder Upon a Change of Control........................ 93
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ARTICLE XII
MISCELLANEOUS
SECTION 12.1. TIA Controls..................................................................................... 95
SECTION 12.2. Notices 99....................................................................................... 95
SECTION 12.3. Communications by Holders With Other Holders..................................................... 96
SECTION 12.4. Certificate and Opinion as to Conditions Precedent............................................... 96
SECTION 12.5. Statements Required in Certificate or Opinion.................................................... 97
SECTION 12.6. Rules by Trustee, Paying Agent, Registrar........................................................ 97
SECTION 12.7. Legal Holidays................................................................................... 97
SECTION 12.8. Governing Law.................................................................................... 97
SECTION 12.9. No Adverse Interpretation of Other Agreements.................................................... 98
SECTION 12.10. No Recourse Against Others...................................................................... 98
SECTION 12.11. Successors...................................................................................... 98
SECTION 12.12. Duplicate Originals............................................................................. 98
SECTION 12.13. Severability.................................................................................... 98
SECTION 12.14. Table of Contents, Headings, Etc................................................................ 99
SECTION 12.15. Qualification of Indenture...................................................................... 99
SECTION 12.16. Registration Rights............................................................................. 99
ARTICLE XIII
SATISFACTION AND DISCHARGE
SECTION 13.1. Satisfaction and Discharge of Indenture.......................................................... 99
SECTION 13.2. Application of Trust Money....................................................................... 100
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CROSS-REFERENCE TABLE
TIA Section Indenture Section
310 (a)(1) ............................................. 7.10
(a)(2) ............................................. 7.10
(a)(3) ............................................. N.A.
(a)(4) ............................................. N.A.
(a)(5) ............................................. 7.10
(b) ................................................ 7.8; 7.10
(c) ................................................ N.A.
311 (a) ................................................ 7.11
(b) ................................................ 7.11
(c) ................................................ N.A.
312 (a) ................................................ 2.5
(b) ................................................ 13.3
(c) ................................................ 13.3
313 (a) ................................................ 7.6
(b)(1) ............................................. 7.6
(b)(2) ............................................. 7.6
(c) ................................................ 7.6; 13.2
(d) ................................................ 7.6
314 (a) ................................................ 4.8; 13.2
(b) ................................................ N.A.
(c)(1) ............................................. 2.2; 7.2; 13.4
(c)(2) ............................................. 7.2; 13.4
(c)(3) ............................................. N.A.
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(d) ................................................ N.A.
(e) ................................................ 13.5
(f) ................................................ N.A.
315 (a) ................................................ 7.1(b)
(b) ................................................ 7.5; 7.6; 13.2
(c) ................................................ 7.1(a)
(d) ................................................ 2.8; 6.11; 7.1(b)(c)
(e) ................................................ 6.13
316 (a) (last sentence) ................................ 2.9
(a)(1)(A) .......................................... 6.11
(a)(1)(B) .......................................... 6.12
(a)(2) ............................................. N.A.
(b) ................................................ 6.12; 6.8; 6.7
317 (a)(1) ............................................. 6.3
(a)(2) ............................................. 6.4
(b) ................................................ 2.4
318 (a) ................................................ 13.1
N.A. means not applicable.
1. Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of the Indenture.
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INDENTURE, dated as of June 20, 2003, by and among Centennial
Cellular Operating Co. LLC, a Delaware limited liability company (the
"Company"), Centennial Communications Corp., a Delaware corporation
("Centennial" and together with the Company, the "Issuers"), Centennial Puerto
Rico Operations Corp., as initial guarantor (the "Initial Guarantor") 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'
10-1/8% Senior Notes due 2013 (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.
"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.
"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 Operating Cash Flow" on any date means, with respect
to any Person, the Operating Cash Flow for the Reference Period.
"Annual Operating Cash Flow 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 Operating Cash Flow
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 Operating Cash Flow and consolidated
Indebtedness, (a) the transaction giving rise to the need to calculate the
Annual Operating Cash Flow 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 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 the Company (as determined by a
resolution of the Board of Directors of the 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 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 contact with the Company or any Restricted Subsidiary for
roaming services.
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"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 June 15, 2008 (such redemption price being
described in Article III), plus (2) all required interest payments (excluding
accrued but unpaid interest) due on such Security through June 15, 2008,
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.
"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.
3
"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 others rated at least A-2 or the
equivalent thereof by Standard & Poor's Ratings Services or at least P-2 or the
equivalent thereof by Xxxxx'x Investors Service, Inc. 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.
"Cash from Minority Cellular Investment Interests" means any
dividends, distributions, interest payments or other periodic payments of cash
(collectively a "cash distribution") received directly or indirectly by the
Issuers from its Minority Cellular Investment Interests; provided, however, that
"Cash from Minority Cellular Investment Interests" shall not include any
proceeds received directly by the Issuers from the liquidation, sale, merger,
consolidation, transfer or other disposition (collectively, a "sale") of any
Minority Cellular Investment Interest, except that Cash from Minority Cellular
Investment Interests shall include in every fiscal year ending after the sale of
any Minority Cellular Investment Interest an amount equal to the cash
distributions received directly or indirectly by the Issuers from such Minority
Cellular Investment Interest during the twelve months prior to such sale if
either (a) the proceeds of such sale are used to permanently reduce the amount
of Indebtedness which may be borrowed under the Credit Facility in accordance
with clause (i) of the third paragraph of Section 4.11 or (b) at the time of any
Restricted Payment being made pursuant to clause (ix) of the second paragraph of
Section 4.3, the Company would be permitted to Incur at least $1.00 of
additional Indebtedness pursuant to the Annual Operating Cash Flow Ratio
provision set forth in the second paragraph of Section 4.11 assuming that the
Company was the obligor of additional Indebtedness in a principal amount equal
to the net after-tax proceeds received from such sale.
"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.
"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
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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, 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 Centennial or the Company
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
5
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 is selected from time to
time by the Company for that purpose and is reasonably acceptable to the
Trustee.
"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 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 non-cash 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
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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 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 Existing Notes Issue Date)
certified as non-recurring in an Officer's 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.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which address as of the date hereof is located at 000 Xxxx 0xx
Xxxxxx, Xx. Xxxx, Xxxxxxxxx, 00000.
"Covenant Defeasance" shall have the meaning specified in
Section 8.3.
7
"Credit Facility" means that certain Credit Agreement dated as
of January 7, 1999 and amended and restated as of February 29, 2000 entered into
among the Company and the Initial Guarantor as borrowers, the guarantors named
therein, The Chase Manhattan Bank 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).
"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.
"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 the Company 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
8
the Securities; provided that (a) Capital Stock will not be deemed to be
Disqualified Capital Stock if it may only be so redeemed or repurchased solely
in consideration of Qualified Capital Stock of the Issuers 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 million or its
equivalent in foreign currency, whose debt is rated "A" or higher (or the
equivalent rating or higher) according to Xxxxx'x Investors Service, Inc. or
Standard & Poor's Ratings Service (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 Issuers after the Issue Date from (a) contributions to its common equity
capital and (b) the sale (other than to the Issuers' 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, in each case designated as Excluded
Contributions pursuant to an Officer's Certificate executed by an officer of the
Issuers, 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.
"Existing 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, Centennial, the Initial Guarantor and The Chase Manhattan
Bank.
9
"Existing Notes Issue Date" means December 14, 1998.
"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.
"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 by a Guarantor of the
Company's Indenture Obligations.
"Guarantor" means (a) the Initial Guarantor and (b) any other
Restricted Subsidiary of the Company which becomes a guarantor 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
10
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 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 Guarantor" 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 "Initial Guarantor"
shall mean such successor Person.
11
"Initial Purchasers" means Credit Suisse First Boston LLC,
Banc of America Securities LLC and X.X. Xxxxxx Securities Inc.
"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.
"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 Equity" has the meaning given such term in the
definition of "Permitted Investment."
12
"Issue Date" means the time and date of the first issuance of
the Securities under this Indenture.
"Legal Defeasance" shall have the meaning specified in Section
8.2.
"Legal Holiday" shall have the meaning specified in Section
13.7.
"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 Xxxxx'x Investors
Service, Inc., "A-1" or higher according to Standard & Poor's Ratings Services
(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).
"Mezzanine Financing" means the $180 million in aggregate
initial principal amount of Senior Subordinated Notes due 2009 issued by
Centennial to WCAS Capital Partners III, L.P., dated January 7, 1999 and such
interest as may have been added to principal, or such additional senior
subordinated notes as may have been issued in lieu of payment of interest, in
either case in accordance with the terms thereof.
"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 Existing Notes Issue Date.
"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
of the Company 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 non-cash 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 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 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 13.4 and 13.5.
"Operating Cash Flow" 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 revenues 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 non-cash charges of such
Person and its consolidated Restricted Subsidiaries and (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, 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 non-cash charges that were added back in determining
Operating Cash Flow for such period or for any prior period.
"Opinion of Counsel" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee complying with the requirements of
Sections 13.4 and 13.5.
"Other Permitted Indebtedness" shall have the meaning specified in
Section 4.9.
"Pari Passu Indebtedness" means (a) with respect to the Company, any
Indebtedness of the Company 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
15
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 million 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, 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 million; (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 (x) $20 million or (y) 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;
16
(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 of Company; 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 of Company, provided
that such Liens do not extend to any assets other than those
of the Person that became a Restricted Subsidiary of Company;
(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 the "Limitation on Incurrence of Additional Indebtedness"
covenant, 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
17
paragraph of the "Limitation on Incurrence of Additional
Indebtedness" covenant;
(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 the "Limitation
on Incurrence of Additional Indebtedness" covenant 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 the Indenture;
(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 $10.0 million 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,
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 and any Guarantor and the
Priority Indebtedness of Company 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 Company and its Restricted Subsidiaries and/or one or more of its
Subsidiaries) divided by (ii) the aggregate amount of Annual Operating Cash Flow
of Company and its Restricted Subsidiaries (determined on a pro forma basis
after giving effect to all Investments in and
18
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 Operating Cash Flow 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 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 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) CCOC or any
Guarantor that is secured by any Lien on assets of CCOC or any Guarantor or (ii)
any Restricted Subsidiary other than 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 million 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
19
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.
"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.
"Recapitalization" means transactions consummated pursuant to the
Recapitalization Documents.
"Recapitalization Documents" means the merger agreement, dated as of
July 2, 1998 between the Company and CCW Acquisition Corp., as amended; the
Credit Facility; the indenture relating to the Existing Notes; the documents
governing the Mezzanine Financing; and the ancillary documents related thereto.
"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.
20
"Reference Treasury Dealer" means each of Credit Suisse First Boston
LLC and three 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
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 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 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.
"Registration Rights Agreement" means the Registration Rights
Agreement dated June 20, 2003 by and among the Initial Purchasers, the Company,
Centennial and the Guarantor, 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
21
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 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.
22
"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.
"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 Agreement, the Exchange Securities. The Securities and
the Additional Securities shall be treated as a single class for all purposes
under the 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.
"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
23
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 proceeds of at least $50.0 million 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 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.
24
"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.
"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 or any Guarantor) designated as such 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.
25
"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.
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
26
(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 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
27
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 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 $500,000,000, 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
28
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.
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
29
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.
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:
30
(i) Transfer of Beneficial Interests in the Same Global Security.
Beneficial interests in any Restricted Global Security may be transferred
to Persons who take 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:
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(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 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
32
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.
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,
33
including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable;
(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;
34
(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 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.
35
(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 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
36
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 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.
37
(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 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
38
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, (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:
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
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
39
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 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 THE CENTENNIAL
COMMUNICATIONS CORP. AND CENTENNIAL CELLULAR OPERATING CO. LLC (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
40
'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."
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
41
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.
(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).
42
(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 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.
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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
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
44
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.
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
45
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.
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 June 15, 2008,
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 of record on relevant record
dates to receive interest due on an interest payment date).
(b) In addition, at any time prior to June 15, 2006, 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 110.125% of the aggregate principal amount thereof,
plus accrued and unpaid interest thereon, if any, to the redemption date
(subject to the rights of holders of record 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; 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 June 15, 2008, at the option of the Issuers, in
whole and not in part, within 60
46
days of such Change of Control at a redemption price 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 of record on relevant record dates to
receive interest due on an interest payment date) plus (iii) the Applicable
Premium, if any. In no event will the redemption price of the Securities be less
than 105.063% (the Redemption Price for the Securities on June 15, 2008) of the
principal amount of the Securities, plus accrued interest to the applicable
Redemption Date.
SECTION 3.2. Notices to Trustee.
If the Issuers elect to redeem Securities pursuant to Paragraph 5 of
the Securities, 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 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.
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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
(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.
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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.
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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 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 Annual Operating Cash Flow
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 Existing Notes Issue Date and on or
prior to the date of such Restricted Payment, shall exceed the sum of (i) the
amount determined by subtracting (x) 1.75
50
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 Existing 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) Operating Cash Flow 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 Existing 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 Existing Notes Issue Date (in any case
other than Excluded Contributions, Excluded Cash Contributions and Investment
Equity), and (iv) to the extent not otherwise included in clauses (i) - (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 of the Company 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 Existing
Notes Issue Date.
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, (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 $2.5 million 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 Issue Date plus (b) the cash proceeds of key
man life insurance policies received by the Company and its Restricted
Subsidiaries after the Existing Notes Issue Date; (v) repurchases of Capital
Stock of the Company deemed to 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
51
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 or the indenture for the Existing Notes, (b) its other operational
expenses (other than taxes) incurred in the ordinary course of business and not
exceeding $1 million 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 of the Company 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, 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 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 at least to the same extent as the Indebtedness to be
refinanced; (ix) loans, advances, dividends or distributions by the Company to
Centennial in an amount no greater than the current quarterly interest payments
then due on the Mezzanine Financing as in effect on the Issue Date; provided
that in no event shall such amount exceed the aggregate amount of Cash from
Minority Cellular Investment Interests received by the Company net of all taxes
(on a consolidated basis) or capital contributions required to be paid in
respect thereof; and provided further that with respect to any loans, advances,
dividends or distributions after giving effect thereto, the Company would be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Annual Operating Cash Flow Ratio test contained in the second paragraph of
Section 4.11; (x) the declaration and payment of dividends or distributions to
holders of any class or series of Disqualified Capital Stock of the Company
Centennial 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; (xi) 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
52
offering by Centennial; (xii) 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 Existing 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 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 (xii) 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
Annual Operating Cash Flow Ratio test contained in the second paragraph of
Section 4.11; (xiii) Investments made with Excluded Contributions; and (xiv)
other Restricted Payments in an aggregate amount not to exceed $2 million.
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), (x), (xi) and (xii) of the
immediately preceding paragraph shall be deducted.
SECTION 4.4. Corporate Existence.
Subject to Article V, each of the Issuers shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence 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 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
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
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 the Issuers shall not be required to
53
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 the Issuers 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 the Company, 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 the Issuers 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 the Issuers 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 and its Restricted Subsidiaries
or the Company or such Restricted Subsidiaries, as the case may be.
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 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.
54
(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 so 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 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 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
55
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 $5.0 million, 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 the Company
delivers an Officer's 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 $10.0 million, the Company delivers to the Trustee a
resolution adopted by the majority of the Disinterested Directors approving such
Affiliate Transaction and set forth in an Officer's 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 million or (b) 1% of Annual
Operating Cash Flow; (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) transactions 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) the existence of, or the performance by
the Company or any of its Restricted Subsidiaries of its obligations under the
terms of, the Recapitalization Documents and 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;
56
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 and any Guarantor may
Incur Indebtedness (including Acquired Indebtedness) and any Restricted
Subsidiary may Incur Acquired Indebtedness if the Company's Annual Operating
Cash Flow 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
the Credit Facility in an aggregate principal amount at any one time
outstanding not to exceed $915,240,000, 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 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 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 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
57
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 million 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 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
million in the aggregate at any one time outstanding; and 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 that is not a Guarantor shall not exceed $25 million 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 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;
58
(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 or any Guarantor (other than as
otherwise permitted pursuant to this Section 4.11) not to exceed $125
million in the aggregate at any one time outstanding; provided, that the
Company's Restricted Subsidiaries other than any Guarantor may Incur up to
$75 million in the aggregate at any one time outstanding of the $125
million of Indebtedness which may be Incurred pursuant to this clause
(xi);
(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 item of Indebtedness on the date of Incurrence in any manner
59
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 of the Company to pay dividends or make other distributions on the
Capital Stock of any Restricted Subsidiary of the Company or pay or satisfy any
obligation to the Company or any of its Restricted Subsidiaries or otherwise
transfer assets or make or pay loans or advances to the Company or any of its
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 with respect solely to a Restricted
Subsidiary of the Company 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 of the Company, 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 Credit
Facility or the Existing Notes or any other Indebtedness outstanding on the
Issue Date) and customary encumbrances and restrictions contained in the
security agreements related to the 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 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 Operating Cash Flow 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 and provided that the Annual Operating Cash
Flow 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
60
restrictions do not exceed 10% of the Company's Annual Operating Cash Flow 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 not an Affiliate of the Company 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 of the Company, whether by the
Company or a Restricted Subsidiary (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 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 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
61
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 following paragraph shall
have been satisfied) or (ii) used to permanently retire Indebtedness of the
Company or any Guarantor that is 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 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 revolver 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
$15,000,000 and that 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 paragraphs
(1), (2) and (3):
(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;
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(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 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 which, or Capital Stock of a Person all or
substantially all of whose assets, 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 paragraphs (1), (2) and (4) 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 provisions of this Indenture that
conflict with such laws shall be deemed to be superseded by the provisions of
such laws.
The Company shall accumulate all Net Cash Proceeds and the aggregate
amount of such accumulated Net Cash Proceeds not used for the purposes permitted
and within the time provided by this Section 4.14 is referred to as the
"Accumulated Amount."
For purposes of this Section 4.14, "Minimum Accumulation Date" means
each date on which the Accumulated Amount exceeds $5,000,000. Not later than 10
Business Days
63
after each Minimum Accumulation Date, the Company will 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 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, which Asset Sale Purchase
Date shall be on or prior to 40 Business Days following the Minimum
Accumulation 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 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;
64
(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 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.
65
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 or a
Guarantor) 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 or (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 of the Company 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 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.
66
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 (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.
SECTION 4.19. Limitation on Issuances of Guarantees.
(a) The Company will not cause or permit any Restricted Subsidiary (other than 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 or any
67
Restricted Subsidiary (other than under the 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 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 Existing Notes are guaranteed by a
particular Restricted Subsidiary (other than 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 (including the Guarantee provided by the Guarantors) 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
sale, exchange or transfer, to any Person not an Affiliate of the Company, all
or substantially all the assets of, such Restricted Subsidiary, or upon a sale
or transfer of capital stock of such Guarantor (other than a sale or transfer to
an Affiliate of the Issuers) 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 the Indenture which
transaction is in compliance with the terms of this Indenture or (ii) the
release by the holders of the Indebtedness of the Company described in clause
(a) above or 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 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).
SECTION 4.20. Amendments to Mezzanine Financing.
The terms of the Mezzanine Financing shall not be amended in a
manner adverse to the Holders.
SECTION 4.21. 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 4.20 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
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Issuers and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
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 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 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 resulting surviving or transferee entity
would immediately thereafter be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Annual Operating Cash Flow Ratio provision set
forth in the second paragraph of Section 4.11 or such Annual Operating Cash Flow
Ratio would be lower than such ratio immediately prior to such transaction; (iv)
at the time of the transaction each Issuer, unless it is the other party to the
transaction described above, 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 each Guarantor, if any, unless it is the other party to the
transaction described above, in which case Section 5.1(i)(b) shall apply, 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 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.
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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 or any Guarantor) 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 or any
Guarantor) 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 a corporation duly organized and validly
existing under the laws of the United States of America, 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
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 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 corporation
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 (except in
connection with a transfer that results in the transfer of assets constituting
or accounting for less than 95% of the consolidated assets (as of the last
balance sheet available), revenues, or Annual Operating Cash Flow of the Company
or Centennial, as the case may be (as of the last twelve month period for which
financial statements are available)), shall be released from the obligations
under the Securities and this Indenture.
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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):
(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, the Initial Guarantor 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, the Initial Guarantor or any Significant
Restricted Subsidiary bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of or in
respect of Centennial, the Company, 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, the Initial
Guarantor 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;
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(5) (a) Centennial, the Company, the Initial Guarantor 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, the Initial Guarantor or any Significant Restricted
Subsidiary consents to the entry of a decree or order for relief in
respect of Centennial, the Company, the Initial Guarantor 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, the Initial Guarantor 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, the Initial
Guarantor or any Significant Restricted Subsidiary (I) consents 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, the
Initial Guarantor 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, the Initial Guarantor or any Significant
Restricted Subsidiary takes any corporate action in furtherance of
any such actions in this paragraph (5);
(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 or any Restricted Subsidiaries
(or the payment of which is guaranteed by Centennial, the Company or
any of their 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 $20,000,000 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 $20,000,000 (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 rendered against Centennial, the Company
or any of its Restricted Subsidiaries and not stayed, bonded or
discharged within 60 days.
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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
Company (and to the Trustee if given by 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 Credit
Facility shall be in full force and effect, if an Event of Default shall have
occurred and be continuing (other than as specified in clause (4) or (5) with
respect to Centennial, the Company, the Initial 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 Credit
Facility and (y) the acceleration of any Indebtedness under the Credit Facility.
If an Event of Default specified in clauses (4) and (5) above relating to
Centennial, the Company, the Initial 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
73
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 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
74
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.
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
75
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 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.
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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.
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).
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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.
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.
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(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.
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 13.4 and 13.5. 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
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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.
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.
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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 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.
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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 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.
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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 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.
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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 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, 4.20, 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:
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(a) The Company 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 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
85
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 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 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 the Issuers, any
Guarantor or any of their Subsidiaries is bound;
(h) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of such Securities over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Issuers or others; and
(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
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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.
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 or a Guarantor, and the assumption by any
such successor of the covenants of Centennial, the Company 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, 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 or 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;
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(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
the 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 and any Guarantor's
obligations under this Indenture, in any property, or assets,
including any of which are required to be mortgaged, pledged 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
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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
(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
89
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.
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.
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ARTICLE X
GUARANTEE
SECTION 10.1. Guarantee. The Guarantors, jointly and severally,
hereby fully, unconditionally and irrevocably guarantee as primary obligors and
not merely as a sureties, the obligations of the Company under the Securities
and this Indenture, and guarantee 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 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 Subsidiary Guarantor will remain bound
under this Article X, notwithstanding any extension or renewal.
The Guarantor hereby agree 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.
The Guarantor hereby 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. The Guarantor acknowledges that the Guarantee is a guarantee of
payment and not of collection.
The Guarantor hereby agree 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 Guarantor
to enforce such Guarantor's Guarantee without first proceeding against the
Company or any other Guarantor, if any. The 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
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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. The 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.
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
under the Securities and this Indenture.
SECTION 10.2. Future Guarantors. Any Person that becomes 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 guarantee the
Securities and the obligations of the Issuers thereunder and hereunder, on the
same basis as the Guarantor on the date hereof 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, the
obligations of the Guarantors and any such Person under their respective
Guarantee shall become joint and several and each reference to the "Guarantor"
in this Indenture shall be deemed to refer to all Guarantors, including such
Person.
SECTION 10.3. Limitation of Guarantors' Liability. Each Guarantor,
and by its
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acceptance hereof, each Holder confirms that it is the intention of all such
parties that the Guarantee by the 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, the
Holders and the Guarantor hereby 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. The 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 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. The 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. The 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
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"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.
(b) In the event that, pursuant to this Section 11.1, the Issuers
shall be required to commence such an offer to purchase Securities (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
(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
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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 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 the Guarantor:
c/o Centennial Communications Corp.
0000 Xxxxx 00
Xxxxxxxx X
00
Xxxx, Xxx Xxxxxx 00000
Attention: Xxxx X. Xxxx
Telecopy: 000-000-0000
if to the Trustee:
U.S. Bank National Association
000 Xxxx 0xx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services
Telecopy: 000-000-0000
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.
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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;
(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
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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.
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.
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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, 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
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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 or any Guarantor has paid or caused to
be paid all other sums payable hereunder by the Company; and
(c) the Company and Centennial 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 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, any Guarantor or any
Subsidiary of the Company is a party or by which Centennial, the Company,
any Guarantor or any of the Company's Subsidiaries 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.
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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 XXXX
-------------------------------------
Name: Xxxx 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 XXXX
-------------------------------------
Name: Xxxx Xxxx
Title: Senior Vice President,
General Counsel
CENTENNIAL PUERTO RICO OPERATIONS CORP.
By: /s/ XXXX XXXX
-------------------------------------
Name: Xxxx Xxxx
Title: Senior Vice President,
General Counsel
101
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ XXXXX XXXXXX
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
102
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 ISSUER OR ITS 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 THE
COMPANY.
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
CENTENNIAL COMMUNICATIONS CORP. AND CENTENNIAL CELLULAR OPERATING CO. LLC (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
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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
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.
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CENTENNIAL CELLULAR OPERATING CO. LLC
CENTENNIAL COMMUNICATIONS CORP.
10 1/8% SENIOR NOTE DUE 2013
No. ______________ $______________
CUSIP No. 144A: 00000XXX0
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 hereinafter referred to) and Centennial Communications
Corp., a Delaware corporation (hereinafter called "Centennial," which term
includes any successors under the Indenture hereinafter referred to), for value
received, hereby promise to pay to Cede & Co., or registered assigns, the
principal sum of $_____________ Dollars, on June 15, 2013.
Interest Payment Dates: June 15 and December 15;
commencing December 15, 2003.
Record Dates: June 1 and December 1
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.
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IN WITNESS WHEREOF, the Company and Centennial have caused this
Instrument to be duly executed under their corporate seal.
Dated:
CENTENNIAL CELLULAR OPERATING CO. LLC
By: Centennial Communications Corp.,
as Sole Member
By:
----------------------------------------
Name:
Title:
CENTENNIAL COMMUNICATIONS 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 FINANCE CORP.
10 1/8% Senior Note due 2013
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 hereinafter referred to) and Centennial Communications
Corp., a Delaware corporation (hereinafter called "Centennial," which term
includes any successors under the Indenture hereinafter referred to, and
together with the Company, 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 10"% per annum and will be payable semi-annually in
arrears in cash on June 15 and December 15 of each year or if any such day is
not a Business Day on the next succeeding Business Day (each an "Interest
Payment Date") commencing December 15, 2003, to Holders of record of the
Securities at the close of business on the immediately preceding June 1 or
December 1, whether or not 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.
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
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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
June 20, 2003 (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 limited in aggregate
principal amount to $500,000,000. The Indenture pursuant to which this Security
is issued provides 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
June 15, 2008, at the option of the Issuers, in whole or in part, on not less
then 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 June
15 of the years indicated below:
Year Redemption Price
---- ----------------
2008.................................. 105.063%
2009.................................. 103.375%
2010.................................. 101.688%
2011 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 of record on
relevant record dates to receive interest due on an interest payment date).
In addition, at any time prior to June 15, 2006, 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 110.125% of the aggregate principal amount thereof,
plus accrued and unpaid interest thereon, if any, to the redemption date
(subject to the rights of holders of record 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; 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
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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 June 15, 2008, at the option of the Issuers, in whole and
not in part, within 60 days of such Change of Control, at a redemption price
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 of record on
relevant record dates to receive interest due on an interest payment date) plus
(iii) the Applicable Premium, if any. In no event will the redemption price of
the Securities be less than 105.063% (the Redemption Price for the Securities on
June 15, 2008) of the principal amount of the Securities, plus accrued interest
to the applicable Redemption Date.
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.
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.
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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
officer's certificate and opinion of counsel related thereto.
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
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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.
(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.
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.
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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).
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 June 20, 2003, between the Issuers,
Centennial Puerto Rico Operations Corp., 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 and Centennial
Puerto Rico Operations Corp., if any (collectively, the "Registration Rights
Agreement").
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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.
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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)
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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 ISSUER OR ITS 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 THE
COMPANY.
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
CENTENNIAL COMMUNICATIONS CORP. AND CENTENNIAL CELLULAR OPERATING CO. LLC (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
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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.
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CENTENNIAL CELLULAR OPERATING CO. LLC
CENTENNIAL COMMUNICATIONS CORP.
10 1/8% SENIOR NOTE DUE 2013
No. _____________ $______________
CUSIP No. 144A: 00000XXX0
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 hereinafter referred to) and Centennial Communications
Corp., a Delaware corporation (hereinafter called "Centennial," which term
includes any successors under the Indenture hereinafter referred to), for value
received, hereby promise to pay to Cede & Co., or registered assigns, the
principal sum of $_____________ Dollars, on June 15, 2013.
Interest Payment Dates: June 15 and December 15;
commencing December 15, 2003.
Record Dates: June 1 and December 1
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.
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IN WITNESS WHEREOF, the Company and Centennial have caused this
Instrument to be duly executed under their corporate seal.
Dated:
CENTENNIAL CELLULAR OPERATING CO. LLC
By: Centennial Communications Corp.,
as Sole Member
By:
----------------------------------------
Name:
Title:
CENTENNIAL COMMUNICATIONS 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 FINANCE CORP.
10 1/8% Senior Note due 2013
Capitalized terms used herein shall have the meaning assigned to
them in the Indenture referred to below unless otherwise indicated.
22. Interest.
Centennial Cellular Operating Co. LLC, a Delaware limited liability
company (hereinafter called the "Company," which term includes any successors
under the Indenture hereinafter referred to) and Centennial Communications
Corp., a Delaware corporation (hereinafter called "Centennial," which term
includes any successors under the Indenture hereinafter referred to, and
together with the Company, 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 10"% per annum and will be payable semi-annually in
arrears in cash on June 15 and December 15 of each year or if any such day is
not a Business Day on the next succeeding Business Day (each an "Interest
Payment Date") commencing December 15, 2003, to Holders of record of the
Securities at the close of business on the immediately preceding June 1 or
December 1, whether or not 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.
23. 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.
24. 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
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notice to the Holders. The Issuers or any of their Subsidiaries may, subject to
certain exceptions, act as Paying Agent, Registrar or co-Registrar.
25. Indenture.
The Issuers issued the Securities under an Indenture, dated as of
June 20, 2003 (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 limited in aggregate
principal amount to $500,000,000. The Indenture pursuant to which this Security
is issued provides an unlimited amount of Additional Securities to be issued
thereunder.
26. Redemption.
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The Securities will be subject to redemption at any time on or after
June 15, 2008, at the option of the Issuers, in whole or in part, on not less
then 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 June
15 of the years indicated below:
Year Redemption Price
---- ----------------
2008.................................. 105.063%
2009.................................. 103.375%
2010.................................. 101.688%
2011 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 of record on
relevant record dates to receive interest due on an interest payment date).
In addition, at any time prior to June 15, 2006, 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 110.125% of the aggregate principal amount thereof,
plus accrued and unpaid interest thereon, if any, to the redemption date
(subject to the rights of holders of record 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; 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
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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 June 15, 2008, at the option of the Issuers, in whole and
not in part, within 60 days of such Change of Control, at a redemption price
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 of record on
relevant record dates to receive interest due on an interest payment date) plus
(iii) the Applicable Premium, if any. In no event will the redemption price of
the Securities be less than 105.063% (the Redemption Price for the Securities on
June 15, 2008) of the principal amount of the Securities, plus accrued interest
to the applicable Redemption Date.
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.
27. 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.
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.
28. 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.
29. Persons Deemed Owners.
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The registered Holder of a Security may be treated as the
owner of it for all purposes.
30. 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.
31. 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
officer's certificate and opinion of counsel related thereto.
32. 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.
33. 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
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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.
34. 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.
(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.
35. 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.
36. 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.
37. 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.
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38. 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.
39. 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.
40. 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).
41. 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.
42. 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 June 20, 2003, between the
Issuers, Centennial Puerto Rico Operations Corp., 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 and Centennial
Puerto Rico Operations Corp., if any (collectively, the "Registration Rights
Agreement").
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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.
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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)
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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.
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EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Centennial Communications Corp.
Centennial Cellular Operating Co. LLC
0000 Xxxxx 00, Xxxxxxxx X
Xxxx, Xxx Xxxxxx 00000
Attention: Xxxx X. Xxxx
Facsimile: 000-000-0000
U.S. Bank National Association.
000 Xxxx 0xx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services
Re: 10-1/8% Senior Notes due 2013
Reference is hereby made to the Indenture, dated as of June 20, 2003
(the "Indenture"), among Centennial Communications Corp., a Delaware corporation
and Centennial Cellular Operating Co. LLC, a Delaware limited liability company
(together, the "Issuers"), the Guarantor, and State 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" 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
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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
(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
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(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 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
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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:
-----------------------
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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.
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EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Centennial Communications Corp.
Centennial Cellular Operating Co. LLC
0000 Xxxxx 00, Xxxxxxxx X
Xxxx, Xxx Xxxxxx 00000
Attention: Xxxx X. Xxxx
Facsimile: 000-000-0000
U.S. Bank National Association.
000 Xxxx 0xx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services
Re: 10-1/8% Senior Notes due 2013
Reference is hereby made to the Indenture, dated as of June 20, 2003
(the "Indenture"), among Centennial Communications Corp., a Delaware corporation
and Centennial Cellular Operating Co. LLC, a Delaware limited liability company
(together, the "Issuers"), the Guarantor, and State 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
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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
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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:
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EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
[ ]
Re: 10-1/8% Senior Notes due 2013
Reference is hereby made to the Indenture, dated as of June 20, 2003
(the "Indenture"), among Centennial Communications Corp., a Delaware corporation
and Centennial Cellular Operating Co. LLC, a Delaware limited liability company
(together, the "Issuers"), the Guarantor, and State 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)
pursuant to an effective registration statement under the Securities Act, and we
further agree to
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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:
-----------------------
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