As filed with the Securities and Exchange Commission on March 30, 1994.
Registration No. 33-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Century Telephone Enterprises, Inc.
(Exact name of registrant as specified in its charter)
Louisiana 72-0651161
(State or other (I.R.S. Employer
jurisdiction of incorporation Identification Number)
or organization)
100 Century Park Drive
Monroe, Louisiana 71203
(318) 388-9500
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Copy to: HARVEY P. PERRY, ESQ. Copy to:
Kenneth J. Najder Senior Vice President, J. Michael Parish
Jones, Walker, Waechter, General Counsel Winthrop, Stimson, Putnam
Poitevent, Carrere and Secretary & Roberts
& Denegre, L.L.P. Century Telephone One Battery Park Plaza
201 St. Charles Ave, Enterprises,Inc. New York, New York 10004-1490
51st Floor 100 Century Park Drive (212) 858-1000
New Orleans, Louisiana Monroe, Louisiana 71203
70170-5100 (318) 388-9500
(504) 582-8000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this registration statement
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. ___
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, please check the following
box. X
___
CALCULATION OF REGISTRATION FEE
===============================================================================
Proposed Proposed
maximum maximum
Title of each Amount offering aggregate Amount of
class of securities to be price per offering registration
to be registered registered unit<FN1> price<FN1> fee
_______________________________________________________________________________
Senior Debt Securities $400,000,000<FN2> 100% $400,000,000 $137,931
===============================================================================
<FN1> Estimated solely for the purpose of calculating the registration fee.
<FN2> In the event of the issuance of original issue discount securities, the
amount registered will equal such principal amount as may be sold for an
initial public offering price of up to $400,000,000.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT
THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
SUBJECT TO COMPLETION, DATED MARCH 30, 1994
Century Telephone Enterprises, Inc.
Senior Debt Securities
______________________
Century Telephone Enterprises, Inc. ("Century") may from
time to time offer hereunder senior unsecured debt securities
(the "Senior Debt Securities") with an aggregate initial public
offering price not to exceed $400,000,000. The Senior Debt
Securities may be offered as separate series in amounts, at
prices and on terms to be determined at the time of sale and
set forth in an accompanying supplement to this Prospectus (a
"Prospectus Supplement"). The specific designation, aggregate
principal amount, net proceeds, offering price, maturity,
interest rate, interest payment dates, terms of any redemption
or sinking fund provisions and any other specific terms
relating to any series of Senior Debt Securities offered
hereunder will be set forth in the Prospectus Supplement
relating to that series. The Senior Debt Securities will rank
equally with all other unsubordinated and unsecured
indebtedness of Century. See "Description of Senior Debt
Securities."
Century may sell the Senior Debt Securities directly or
through agents, underwriters or dealers designated from time to
time by Century. If any agents, underwriters or dealers are
involved in the sale of any series of Senior Debt Securities,
the names of such agents, underwriters or dealers and any
applicable commissions and discounts will be set forth in the
Prospectus Supplement relating to that series. See "Plan of
Distribution."
_____________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
_____________________
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF
SENIOR DEBT SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS
SUPPLEMENT.
_____________________
The date of this Prospectus is ____________________, 1994.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any jurisdiction in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the securities
laws of any such jurisdiction.
AVAILABLE INFORMATION
Century is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and in accordance therewith files reports, proxy statements and
other documents with the Securities and Exchange Commission (the
"Commission"). Documents filed by Century with the Commission
pursuant to the informational requirements of the Exchange Act
may be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, 450 Fifth Street,
N.W., Washington, DC 20549, and at the regional offices of the
Commission at the following locations: New York Regional Office,
7 World Trade Center, 13th Floor, New York, New York 10048 and
Chicago Regional Office, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60621-2511. Copies of such material may be
obtained from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, DC 20549, at prescribed
rates. Century's common stock is listed on the New York Stock
Exchange and its reports, proxy statements and other information
may also be inspected at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005. In
addition to the information contained in this Prospectus, further
information regarding Century and the Senior Debt Securities is
contained in the registration statement on Form S-3 (the
"Registration Statement") filed with the Commission under the
Securities Act of 1933, as amended (the "Securities Act"), which
may be inspected and copied at the Commission's offices listed
above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by Century
with the Commission pursuant to the Exchange Act, are
incorporated herein by reference:
(a) Century's Annual Report on Form 10-K for the fiscal year
ended December 31, 1993.
(b) Century's Current Reports on Form 8-K dated January 13,
1994, and February 10, 1994.
All reports filed by Century with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent
to the date of this Prospectus and prior to the termination of
the offering made hereby shall be deemed to be incorporated by
reference herein and to be made a part hereof from their
respective dates of filing. Information appearing herein or in
any particular document incorporated herein by reference is not
necessarily complete and is qualified in its entirety by the
information and financial statements appearing in all of the
documents incorporated herein by reference and should be read
together therewith. Any statements contained in a document
incorporated or deemed to be incorporated by reference shall be
deemed to be modified or superseded to the extent that a
statement contained herein or in any other document subsequently
filed or incorporated by reference herein modifies or supersedes
such statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute
a part of this Prospectus.
Century will provide without charge to each person to whom a
copy of this Prospectus has been delivered, upon the written or
oral request of any such person, a copy of any of the documents
incorporated herein by reference, other than exhibits to such
documents, unless such exhibits are specifically incorporated by
reference in such documents. Requests for such copies should be
directed to Harvey P. Perry, Senior Vice President, General
Counsel and Secretary, Century Telephone Enterprises, Inc., 100
Century Park Drive, Monroe, Louisiana 71203, telephone (318) 388-
9500.
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by
reference to the more detailed information and financial statements
appearing elsewhere herein and in the documents incorporated herein
by reference. All share and per share data relating to Century's
common stock contained herein has been adjusted for stock splits
effected as 50% stock dividends distributed in February 1989 and
December 1992. When used in this Prospectus or any Prospectus
Supplement, (i) the term "pops" means the population of the
Company's licensed cellular telephone markets (based on 1993
Donnelley Marketing Information Services Estimates) multiplied by
the Company's proportionate equity interests in the licensed
operators thereof, (ii) the term "Series" means any particular
series of Senior Debt Securities, (iii) the term "Century" means
Century Telephone Enterprises, Inc. and (iv) the term "Company"
means Century and its subsidiaries.
The Company
The Company is a regional diversified telecommunications
company that is primarily engaged in providing local telephone and
mobile communications services. At December 31, 1993, the
Company's telephone subsidiaries served approximately 434,000
telephone access lines, primarily in rural, suburban and small
urban communities in 14 states, with its largest customer bases
located in Wisconsin, Louisiana, Michigan, Ohio and Arkansas.
Through its cellular operations (including those acquired in
February 1994), the Company controls approximately 7.1 million pops
in 27 MSAs (Metropolitan Statistical Areas) and 32 RSAs (Rural
Service Areas), primarily concentrated in Michigan, Louisiana,
Texas, Arkansas and Mississippi. The Company is the majority owner
and operator in 18 of these MSAs and 13 of these RSAs. At December
31, 1993, the Company's majority-owned cellular systems had more
than 116,000 cellular subscribers, not including approximately
28,000 subscribers acquired by the Company in connection with its
February 1994 acquisition of Celutel, Inc. ("Celutel") described
below. Unless otherwise provided herein, the financial and
operating data set forth in this Prospectus does not reflect the
Celutel acquisition. During 1993, telephone operations provided
80% of the Company's consolidated revenues, with mobile
communications operations providing the balance.
Summary Financial and Operating Data
(In thousands, except access lines and cellular units in service)
<TABLE>
<CAPTION>
Year Ended December 31,
_______________________________________________________________________
1989 1990 1991 1992 1993
____ ____ ____ ____ _____
<S> <C> <C> <C> <C> <C>
Income Statement Data:
Revenues $ 215,390 $ 250,365 $ 282,527 $ 359,602 $ 433,197
Cost of sales and
operating expenses 127,022 142,169 155,200 187,076 231,855
Depreciation and
amortization 41,185 47,095 52,240 62,898 76,534
Operating income 47,183 61,101 75,087 109,628 124,808
Interest expense (22,417) (24,132) (22,504) (27,166) (30,149)
Interest before income
taxes and cumulative
effect of changes in
accounting principles 32,904 48,494 57,489 92,572 106,256
Net Income $ 22,164 $ 31,098 $ 37,419 $ 44,305 $ 69,004
Year Ended December 31,
_______________________________________________________________________
1989 1990 1991 1992 1993
____ ____ ____ ____ _____
Operating Data:
Telephone access lines 296,034 304,915 314,819 397,300 434,691
Cellular units in service
in majority-owned and
operated markets 23,199 35,815 51,083 73,084 116,484
Cellular pops 4,821 5,002 5,437 5,497 5,947
Year Ended December 31,
________________________________________________________________________
1989 1990 1991 1992 1993
____ ____ ____ ____ _____
Balance Sheet Data:
Net property, plant
and equipment $ 474,158 $ 490,957 $ 534,998 $ 675,878 $ 827,776
Excess cost of net
assets acquired, net 109,197 110,013 114,258 217,688 297,158
Total assets 691,569 706,411 764,539 1,040,487 1,319,390
Short-term debt 28,873 37,500 28,110 42,124 83,433
Long-term debt, excluding
current maturities 257,708 230,715 254,753 391,944 460,933
Stockholders' equity $ 256,530 $ 280,915 $ 319,977 $ 385,449 $ 513,768
</TABLE>
THE COMPANY
The Company is a regional diversified telecommunications
company that is primarily engaged in providing local telephone
and mobile communications services. At December 31, 1993, the
Company's telephone subsidiaries served approximately 434,000
telephone access lines, primarily in rural, suburban and small
urban communities in 14 states, with its largest customer bases
located in Wisconsin, Louisiana, Michigan, Ohio and Arkansas.
Through its cellular operations (including those acquired in
February 1994), the Company controls approximately 7.1 million
pops in 27 MSAs (Metropolitan Statistical Areas) and 32 RSAs
(Rural Service Areas), primarily concentrated in Michigan,
Louisiana, Texas, Arkansas and Mississippi. The Company is the
majority owner and operator in 18 of these MSAs and 13 of these
RSAs. At December 31, 1993, the Company's majority-owned
cellular systems had more than 116,000 cellular subscribers, not
including approximately 28,000 subscribers acquired by the
Company in connection with its February 1994 acquisition of
Celutel described below. Unless otherwise provided herein, the
financial and operating data set forth in this Prospectus does
not reflect the Celutel acquisition. During 1993, telephone
operations provided 80% of the Company's consolidated revenues,
with mobile communications operations providing the balance.
Century is incorporated in Louisiana; its principal
executive offices are located at 100 Century Park Drive, Monroe,
Louisiana 71203, and its telephone number is (318) 388-9500. At
December 31, 1993, the Company employed approximately 2,800
persons.
Telephone Operations
General. According to published sources, the Company is the
15th largest local exchange carrier in the United States, based
on the approximately 434,000 telephone access lines it served at
year end. At December 31, 1993, 93% of the Company's access
lines were served by digital switching technology, which allows
the Company to offer additional premium services to its
customers, including call forwarding, conference calling, caller
identification, selective call ringing and call waiting.
Revenues and Operating Income. The following table provides
a breakdown of revenues and operating income for the Company's
local exchange carrier subsidiaries in 1991, 1992 and 1993:
<TABLE>
<CAPTION>
Year Ended December 31,
_______________________________________________
1991 1992 1993
__________ ____________ __________
(In millions)
<S> <C> <C> <C>
Revenues:
Local service $ 58.7 $ 78.1 $ 88.7
Network access and
long distance 145.3 182.7 217.1
Other (including revenues
relating to equipment
maintenance and sales, billing
and collection services, network
facilities leases and
directories) 31.8 36.7 42.7
___________ ____________ __________
Total revenues $ 235.8 $ 297.5 $ 348.5
=========== ============ ===========
Operating income $ 80.0 $ 103.7 $ 114.9
=========== ============ ===========
</TABLE>
Certain Considerations Relating to Telephone Operations.
The Federal Communications Commission (the "FCC") and various
state public utility commissions regulate significant portions of
the business of local exchange carriers ("LECs"), including the
licensing, construction, operation, sale and acquisition of LECs.
The FCC and substantially all of the state public utility
commissions having jurisdiction over the Company's telephone
operations regulate the rates and authorized rates of return that
the Company's LECs are allowed to earn. The FCC and a limited
number of state regulatory commissions (including at least three
having jurisdiction over the Company) have begun to relax the
regulation of LECs, including their rates and authorized rates of
return. Coincident with this movement toward reduced regulation
is the introduction and encouragement of local exchange
competition by the FCC and various state public utility
commissions, along with the emergence of certain companies
providing competitive access and other services that compete with
LECs' services and the announcement by certain well-established
interexchange carriers of their desire to enter the LEC business.
In addition, several bills have been filed in the U.S. Congress
that have the potential to significantly alter the regulatory
framework of telephone companies. Moreover, the FCC and certain
state public utility commissions have explored or implemented
initiatives to reduce the funding of certain support mechanisms
that have traditionally benefitted several of the Company's LECs.
There is no assurance that these initiatives will not have a
material adverse effect on the Company.
In connection with the well-publicized convergence of
telecommunications, cable, video, computer and other
technologies, several large companies have recently announced
plans to offer products that would significantly enhance current
communications and data transmission services and, in some
instances, introduce new two-way video, entertainment, data,
consumer and other multimedia services. No assurance can be
given that the Company will have the resources to offer these
products or services, or that the offering of these products or
services by others will not have a material adverse effect on the
Company. Moreover, as the mobile communications industry
matures, the Company anticipates that existing and emerging
mobile communications technologies will increasingly compete with
traditional LEC services.
Mobile Communications Operations
General. According to published sources, the Company is the
15th largest operator of cellular telephone systems in the United
States, based on the population of its majority-owned and
operated markets. After giving effect to the Company's
acquisition of Celutel in February 1994, the Company currently
operates and has majority interests in cellular systems serving
18 MSAs and 13 RSAs, which collectively represent 5.5 million
pops, and has minority interests in nine other MSAs and 19 other
RSAs, which collectively represent 1.6 million pops. The
Company's business strategy for its cellular operations is to
secure operating control of service areas that are geographically
clustered. Clustered cellular systems aid the Company's
marketing effort and provide various operating and service
advantages. After giving effect to the Celutel acquisition, 51%
of the Company's pops in markets operated by the Company are in a
single, contiguous cluster of eight MSAs and six RSAs in
Michigan, and another 19% are in a cluster of four MSAs and seven
RSAs in northern and central Louisiana, southern Arkansas and
eastern Texas. The Company also provides paging services in
conjunction with the operation of its Louisiana and Michigan
cellular systems.
Revenues and Operating Income. The following table provides
a breakdown of revenues and operating income for the Company's
mobile communications operations in 1991, 1992 and 1993:
<TABLE>
<CAPTION>
Year Ended December 31,
_______________________________________________
1991 1992 1993
__________ ____________ __________
(In millions)
<S> <C> <C> <C>
Revenues:
Cellular access fees,
toll revenues and
equipment sales $ 33.8 $ 48.8 $ 68.2
Cellular roaming 7.7 8.9 12.3
Paging services 5.2 4.4 4.2
___________ _____________ __________
Total Revenues $ 46.7 $ 62.1 $ 84.7
=========== ============= ==========
Operating income (loss) $ (5.0) $ 6.0 $ 9.9
=========== ============= ==========
</TABLE>
Certain Considerations Relating to Mobile Communications
Operations. The FCC and various state public utility commissions
that have jurisdiction over the Company's cellular operations
regulate the licensing, construction, operation, interconnection
arrangements, sale and acquisition of the Company's cellular
telephone systems. Certain state public utility commissions also
regulate certain aspects of pricing by cellular operators,
although the effect of these regulations on the Company has thus
far not been significant. Changes in the regulation of cellular
operators (such as increased price regulation by state
authorities or a decision by the FCC to grant additional licenses
in each cellular market) could have a material adverse effect on
the Company.
The Company faces significant competition from the other
cellular licensee in each of its markets, from resale carriers
within such markets and from other communications technologies
that now exist, including specialized mobile radio systems (which
the Company believes are operating in a majority of its markets)
and paging services, and may in the future face competition from
other telecommunications technologies that may be developed or
perfected. Several recent FCC initiatives have resulted in the
allocation of additional frequency spectrum or the issuance of
experimental licenses for mobile communications technologies that
will or may be competitive with cellular communications,
including personal communication services (for which the FCC
intends to begin auctioning certain operating licenses in 1994)
and mobile satellite services. In addition, the FCC has
authorized certain specialized mobile radio service licensees to
configure their systems so as to operate in a manner similar to
cellular systems, and certain of these licensees recently
announced their intention to create a nationwide mobile
communications system to compete with cellular systems. These
initiatives as well as other continuing and rapid technological
advances in the communications field, coupled with legislative
and regulatory uncertainty, make it impossible to predict the
extent of future competition with cellular systems.
The cellular industry has a relatively limited operating
history, and there continues to be uncertainty regarding its
future. Among other factors, there is uncertainty regarding (i)
the continued growth in the number of customers, (ii) the usage
and pricing of cellular services, particularly as market
penetration increases and lower-usage customers subscribe for
service, (iii) the number of customers who will terminate service
each month, and (iv) the impact of changes in technology,
regulation and competition.
Cellular interests are frequently analyzed by reviewing the
number of pops controlled by a cellular provider. The population
of a particular cellular market, however, does not necessarily
bear a direct relationship to the number of subscribers or the
revenues that may be realized from the operation of the related
cellular system. The future value and cash flow of the Company's
cellular interests will depend on, among other things, the
success of its cellular operations.
Acquisition Strategy
The Company's general strategy has been to provide
diversified telecommunications services and to achieve growth
largely through the acquisition of attractive telecommunications
companies. The Company is continually evaluating the possibility
of acquiring additional telephone access lines and cellular
interests. Although the Company's primary focus will be on
acquiring telephone and cellular interests that are proximate to
its properties or that serve a customer base large enough for the
Company to operate efficiently, other communications interests
may also be acquired.
Recent Acquisitions
In February 1994, Century acquired Celutel in exchange for
approximately $51.4 million cash and approximately 1.9 million
shares of Century's common stock. In connection with the
acquisition, Century prepaid approximately $41.7 million of
Celutel's debt. The acquisition was accounted for as a purchase,
resulting in an increase in goodwill of approximately $138
million. Celutel provides cellular service in three Mississippi
MSAs (Jackson, Pascagoula and Biloxi-Gulfport) and two Texas MSAs
(Brownsville-Harlingen and McAllen-Edenburg-Mission). With this
transaction, the Company acquired 1.1 million pops and
approximately 28,000 cellular subscribers.
In March 1994, Century acquired Kingsley Telephone Company
("Kingsley") in exchange for Century common and preferred stock
valued at $4.25 million. Kingsley operates approximately 2,400
access lines in northern Michigan and holds a minority interest
in two northern Michigan RSAs (representing approximately 33,000
pops) that are currently operated by Century.
USE OF PROCEEDS
Unless otherwise indicated in any Prospectus Supplement, the
net proceeds from Century's sale of Senior Debt Securities will
be used for general corporate purposes, including the financing
of acquisitions and capital expenditures and the refinancing of
outstanding indebtedness. Any specific allocation of the net
proceeds from the sale of a particular Series will be determined
at the time of the offering thereof and will be described in the
Prospectus Supplement relating to that Series.
Century expects that it will from time to time engage in
additional private or public financings as market conditions
warrant and as the need arises.
CAPITALIZATION
The following table sets forth the capitalization of the
Company at December 31, 1992 and 1993:
<TABLE>
<CAPTION>
December 31,
______________________________
1992 1993
__________ __________
(In thousands)
<S> <C> <C>
Short-term debt:
Current maturities of long-term debt $ 9,709 $ 14,233
Notes payable to banks 32,415 69,200
_________ ___________
Total short-term debt 42,124 83,433
_________ ___________
Long-term debt, excluding current maturities:
Century 229,615 272,115
Subsidiaries 162,329 188,818
_________ ___________
Total long-term debt, excluding current maturities 391,944 460,933
_________ ___________
Stockholders' equity:
Common Stock, $1.00 par value,
100,000,000 shares authorized,
48,896,876 and 51,294,705 shares
issued and outstanding 48,897 51,295
Paid-in capital 191,522 262,294
Retained earnings 155,676 208,945
Employee Stock Ownership Plan commitment (11,100) (9,220)
Preferred Stock - non-redeemable 454 454
_________ ___________
Total stockholders' equity 385,449 513,768
_________ ___________
Total capitalization $ 819,517 $1,058,134
========= ===========
</TABLE>
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's consolidated
ratio of earnings to fixed charges for the periods shown.
<TABLE>
<CAPTION>
Year Ended December 31,
_________________________________________________________
1989 1990 1991 1992 1993
__________ __________ __________ __________ _________
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges 2.39 2.98 3.48 4.32 4.33
</TABLE>
For purposes of computing these ratios, (i) earnings
consist of income before income taxes and fixed charges with
adjustments primarily for earnings of unconsolidated
subsidiaries and (ii) fixed charges consist of interest expense
(including amortized debt issuance costs) and preferred stock
dividends of subsidiaries.
SELECTED FINANCIAL DATA
(In thousands, except per share data)
The following selected consolidated financial data for, and
as of the end of, each of the years in the five-year period
ended December 31, 1993, are derived from the consolidated
financial statements of Century and its subsidiaries, which
financial statements have been audited by KPMG Peat Marwick,
independent certified public accountants. The consolidated
financial statements as of December 31, 1993 and 1992, and for
each of the years in the three-year period ended December 31,
1993, and the report thereon, are incorporated herein by
reference. The information set forth below is not necessarily
indicative of the results of future operations and should be
read in conjunction with the consolidated financial statements
and notes thereto incorporated herein by reference.
<TABLE>
<CAPTION>
Year Ended December 31,
____________________________________________________________________
1989 1990 1991 1992 1993
___________ ___________ ___________ __________ __________
<S> <C> <C> <C> <C> <C>
Income Statement Data:
Revenues:
Telephone $ 190,538 $ 215,771 $ 235,796 $ 297,510 $ 348,485
Mobile Communications:
Cellular 21,481 29,070 41,515 57,683 80,513
Paging 3,371 5,524 5,216 4,409 4,199
___________ ____________ _____________ ____________ ___________
Total revenues 215,390 250,365 282,527 359,602 433,197
___________ ____________ _____________ ____________ ____________
Expenses:
Cost of sales and
operating expenses 127,022 142,169 155,200 187,076 231,855
Depreciation and
amortization 41,185 47,095 52,240 62,898 76,534
___________ ____________ ______________ ____________ ____________
Total expenses 168,207 189,264 207,440 249,974 308,389
___________ ____________ ______________ ____________ ____________
Operating income 47,183 61,101 75,087 109,628 124,808
___________ ____________ ______________ ____________ ____________
Other income (expense):
Interest expense (22,417) (24,132) (22,504) (27,166) (30,149)
Earnings (loss) from
unconsolidated cellular
partnerships 117 (68) 697 1,692 6,626
Gain on sale of assets -- 4,094 -- 3,985 1,661
Other income, net 8,021 7,499 4,209 4,433 3,310
___________ ____________ ______________ ____________ ___________
Total other income (expense) (14,279) (12,607) (17,598) (17,056) (18,552)
___________ ____________ ______________ ____________ ___________
Income before income taxes
and cumulative effect of
changes in accounting
principles 32,904 48,494 57,489 92,572 106,256
Income taxes 10,740 17,396 20,070 32,599 37,252
___________ ____________ ______________ ____________ ____________
Income before cumulative
effect of changes in
account principles 22,164 31,098 37,419 59,973 69,004
Cummulative effect of
changes in accounting
principles -- -- -- (15,668) --
___________ ____________ ______________ ____________ ____________
Net Income $ 22,164 $ 31,098 $ 37,419 $ 44,305 $ 69,004
=========== ============ ============== ============ ============
Primary earnings per share:
Income before cumulative
effect of changes in
accounting principles $ .49 $ .66 $ .79 $ 1.23 $ 1.35
Cumulative effect of changes
in accounting principles -- -- -- (.32) --
___________ ___________ ______________ ____________ ____________
Primary earnings per share $ .49 $ .66 $ .79 $ .91 $ 1.35
=========== =========== ============== ============ ============
Fully diluted earnings per
share:
Income before cumulative
effect of changes in
accounting principles $ .49 $ .66 $ .79 $ 1.22 $ 1.32
Cumulative effect of changes
in accounting principles -- -- -- (.31) --
___________ ____________ ______________ ____________ ___________
Fully diluted earnings per
share $ .49 $ .66 $ .79 $ .91 $ 1.32
=========== ============ ============== ============ ===========
Dividends per common share $ .272 $ .280 $ .287 .293 .310
=========== ============ ============== ============ ===========
December 31,
____________________________________________________________________
1989 1990 1991 1992 1993
___________ ___________ ___________ __________ __________
Balance Sheet Data:
Net property, plant and
equipment $ 474,158 $ 490,957 $ 534,998 $ 675,878 $ 827,776
Excess cost of net assets
acquired, net 109,197 110,013 114,258 217,688 297,158
Total assets 691,569 706,411 764,539 1,040,487 1,319,390
Short-term debt 28,873 37,500 28,110 42,124 83,433
Long-term debt, excluding
current maturities 257,708 230,715 254,753 391,944 460,933
Stockholder' equity 256,530 280,915 319,977 385,449 513,768
</TABLE>
DESCRIPTION OF SENIOR DEBT SECURITIES
Set forth below are certain general terms and provisions of
the Senior Debt Securities, which may be issued from time to
time in one or more Series. The particular terms of each Series
will be described in a Prospectus Supplement relating thereto.
Accordingly, for a description of the terms of any particular
Series, reference must be made to both the description set forth
below and the Prospectus Supplement relating thereto.
The Senior Debt Securities will be issued under an
Indenture, dated as of March 31, 1994 (the "Indenture"), between
Century and First American Bank & Trust of Louisiana, Monroe,
Louisiana, as Trustee (the "Trustee"). The particular terms of
each Series will be set forth in a resolution of the Executive
Committee of Century's Board of Directors specifically
authorizing such Series (a "Board Resolution") or in one or more
supplemental indentures. The following summary does not purport
to be complete and is subject in all respects to the provisions
of, and is qualified in its entirety by express reference to,
the Indenture and the form of Board Resolution, which are filed
as exhibits to the Registration Statement. Unless otherwise
indicated, each reference italicized in parentheses below
applies to section numbers in the Indenture and each capitalized
term not otherwise defined herein has the meaning ascribed to it
in the Indenture.
General
The Senior Debt Securities will be general unsecured
obligations of Century and will rank prior to all subordinated
indebtedness of Century and pari passu with all other unsecured
indebtedness of Century. For further information on Century's
debt, see "Capitalization." Century is a holding company and
derives substantially all of its income and operating cash flow
from its subsidiaries. As a result, Century relies upon its
subsidiaries to generate the funds necessary to meet its
obligations, including the payment of principal and interest on
any Senior Debt Securities to be issued hereunder. Certain of
the subsidiaries' loan agreements contain various restrictions
on the transfer of funds to Century, including certain
provisions that restrict the amount of dividends that may be
paid to Century. At December 31, 1993, the amount of retained
earnings of Century's subsidiaries not subject to dividend
restrictions was $286,340,000. Moreover, Century's rights to
receive assets of any subsidiary upon its liquidation or
reorganization (and the ability of holders of Senior Debt
Securities to benefit indirectly therefrom) are subject to the
prior claims of creditors of that subsidiary.
Except to the extent otherwise provided below or in any
Prospectus Supplement, neither the Indenture nor the Senior Debt
Securities being offered thereby (i) limit the amount of secured
or unsecured indebtedness that may be issued or incurred by
Century or any of its subsidiaries, (ii) restrict the payment of
dividends by Century or the sale or transfer of Century's assets
or (iii) contain provisions that would afford holders of Senior
Debt Securities protection in the event of a change in control,
highly leveraged transaction, recapitalization or similar
transaction involving Century, any of which could adversely
affect the holders of Senior Debt Securities.
The Prospectus Supplement relating to any particular Series
being offered thereby will set forth a description of such
Series, including (i) the title and aggregate principal amount
of such Series; (ii) Century's net proceeds from the sale
thereof; (iii) the price or prices at which such Series will be
issued; (iv) the date or dates of maturity; (v) the rate or
rates per annum, if any, at which such Series will bear interest
or the method of determining such rate or rates; (vi) the date
or dates from which any such interest will accrue and the date
or dates at which any such interest will be payable; (vii) the
terms for redemption or early payment, if any, including any
mandatory or optional sinking fund or similar provisions; (viii)
any special United States federal income tax considerations
applicable to such Series; (ix) any special provisions relating
to the defeasance of such Series or (x) any other special
considerations or specific provisions applicable to such Series.
Reference is also made to such Prospectus Supplement for
information regarding any additional covenants that may relate
to such Series.
The Senior Debt Securities may bear interest at a fixed or
floating rate. Senior Debt Securities bearing no interest or
interest at a rate that at the time of issuance is below the
prevailing market rate may be sold at a discount below their
stated principal amount.
None of the Senior Debt Securities will entitle the holder
thereof to convert or exchange the Senior Debt Securities for or
into any other security of Century.
The Indenture is, and the Senior Debt Securities will be,
governed by Louisiana law. The Indenture is subject to and
governed by the Trust Indenture Act of 1939, as amended.
Denominations, Registration and Transfer
Unless otherwise provided in any Board Resolution and
described in the related Prospectus Supplement, the Senior Debt
Securities will be issued only in fully registered form and in
denominations of $1,000 and any multiples thereof (Section
2.03). The Trustee will act as the registrar of each Series
(Section 2.05). No service charge will be made for any
registration of transfer or exchange of Senior Debt Securities,
or issue of new Senior Debt Securities in the event of a partial
redemption of any Series, but Century may generally require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith (Section
2.05). The Trustee may appoint an authenticating agent for any
Series to act on the Trustee's behalf in connection with
authenticating Senior Debt Securities of such Series issued upon
the exchange, transfer or partial redemption thereof (Section
2.10). The Trustee may at any time rescind the designation of
any such agent (Section 2.10).
In the event of a partial redemption of any Series, Century
shall not be required (i) to issue, register the transfer of or
exchange Senior Debt Securities of such Series during a period
beginning 15 days before any selection of Senior Debt Securities
of that Series to be redeemed and ending at the close of
business on the day of mailing of the relevant redemption notice
or (ii) to register the transfer of or exchange any Senior Debt
Securities of any Series, or portions thereof, called for
redemption (Section 2.05).
Payment and Paying Agents
Unless otherwise indicated in any Prospectus Supplement,
payment of principal of (and premium, if any) and interest on
Senior Debt Securities of any Series will be made in U.S.
dollars at the principal office of Century's Paying Agent or, at
the option of Century, by check in U.S. dollars mailed or
delivered to the person in whose name such Senior Debt Security
is registered. Unless otherwise indicated in any Prospectus
Supplement, payment of any installment of interest on any Series
will be made to the person in whose name such Senior Debt
Security is registered at the close of business on the record
date established under the terms of such Series for the payment
of interest (Section 2.03).
Unless otherwise indicated in any Prospectus Supplement,
the Trustee will act as Century's sole Paying Agent and the
principal office of the Trustee, 1500 North 18th Street, Monroe,
Louisiana, will be designated as such agent's office for
purposes of payments with respect to Senior Debt Securities.
Any other Paying Agents initially designated by Century with
respect to any Series will be named in the related Prospectus
Supplement. Century may at any time designate additional Paying
Agents or rescind the designation of any Paying Agents or
approve a change in the office through which any Paying Agent
acts, except that Century will be required to maintain a Paying
Agent in the Borough of Manhattan, City and State of New York,
or Monroe, Louisiana. (Sections 4.02 and 4.03).
Any money set aside by Century for the payment of principal
of (and premium, if any) or interest on any Senior Debt
Securities that remains unclaimed two years after such payment
has become due and payable will be repaid to Century on May 31
following the expiration of such two-year period and the holder
of such Senior Debt Security may thereafter look only to Century
for payment thereof (Section 11.05).
Redemption and Sinking Fund Provisions
Each Series may be redeemed, in whole or in part, upon not
less than 30 days' and not more than 60 days' notice at the
redemption prices and subject to the terms and conditions
(including those relating to any sinking fund established with
respect to such Series) that will be set forth in a Board
Resolution or supplemental indenture and in the Prospectus
Supplement relating to such Series (Sections 3.01 and 3.02). If
less than all of the Senior Debt Securities of the Series are to
be redeemed, the Trustee shall select the Senior Debt Securities
of such Series, or portions thereof, to be redeemed pro rata, by
lot or by any other method the Trustee shall deem fair and
reasonable (Section 2.03).
Replacement of Securities
Any Senior Debt Security that becomes mutilated, destroyed,
lost or stolen will be replaced by Century at the expense of the
holder upon delivery to the Trustee of the Senior Debt Security
or evidence of the destruction, loss or theft thereof
satisfactory to Century and the Trustee. An indemnity
satisfactory to the Trustee and Century may be required before a
replacement security will be issued (Section 2.07).
Events of Default and Notice Thereof
Unless otherwise specified in any Prospectus Supplement,
the terms and conditions set forth under this heading will
govern defaults under the Indenture.
The Indenture provides that the following described events
constitute Events of Default with respect to each Series: (a)
failure for 30 Business Days to pay interest on the Senior Debt
Securities of that Series when due; (b) failure to pay principal
of (or premium, if any, on) the Senior Debt Securities of that
Series when due, whether at maturity, upon redemption, by
declaration or otherwise, or to make any sinking or analogous
fund payment with respect to that Series unless caused solely by
a wire transfer malfunction or similar problem outside Century's
control; (c) failure to observe or perform any other covenant of
that Series in the Indenture for 60 days after written notice
with respect thereto or (d) certain events relating to
bankruptcy, insolvency or reorganization (Section 6.01).
If an Event of Default shall occur and be continuing (the
default not having been cured or waived) with respect to any
Series and if it is known to the Trustee, the Trustee is
required to mail to each holder of such Series a notice of the
Event of Default within 90 days of such default (Section 6.07).
Upon an Event of Default, the Trustee or the holders of not
less than 25% in aggregate outstanding principal amount of any
Series, by notice in writing to the Company (and to the Trustee
if given by such holders), may declare the principal of all
Senior Debt Securities of that Series due and payable
immediately, but the holders of a majority in aggregate
outstanding principal amount of such Series may rescind such
declaration and waive the default if the default has been cured
and a sum sufficient to pay all matured installments of interest
and principal (and premium, if any) has been deposited with the
Trustee before any judgment or decree for such payment has been
obtained or entered (Section 6.01).
Holders of Senior Debt Securities may not enforce the
Indenture except as provided therein. Subject to the provisions
of the Indenture relating to the duties of the Trustee, if an
Event of Default occurs and is continuing the Trustee will be
under no obligation to exercise any of the rights or powers
under the Indenture at the request or direction of any holders
of the affected Series, unless the holders shall have offered
the Trustee indemnity reasonably satisfactory to it. Subject to
the indemnification provisions and certain limitations contained
in the Indenture, the holders of a majority in aggregate
principal amount of the Senior Debt Securities of such Series
then outstanding 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 on the
Trustee. The holders of a majority in aggregate principal
amount of the then outstanding Senior Debt Securities of any
Series affected by a default may, in certain cases, waive such
default except a default in payment of principal of, or any
premium, if any, or interest on, the Senior Debt Securities of
that Series or a call for redemption of the Senior Debt
Securities of that Series (Sections 6.04 and 6.06).
Century will be required to furnish to the Trustee annually
a statement as to the performance by it of certain of its
obligations under the Indenture and as to any default in such
performance (Section 5.03).
Discharge and Defeasance
The Indenture provides that Century may discharge the
Indenture with respect to any Series, subject to certain
exceptions, if at any time (i) Century delivers to the Trustee
for cancellation all outstanding Senior Debt Securities of such
Series previously authenticated and for whose payment money or
U.S. Government Obligations have been deposited in trust by
Century or (ii) all outstanding Senior Debt Securities of such
Series not previously delivered to the Trustee for cancellation
by Century shall have become due and payable or are to become
due and payable or called for redemption within one year and
Century has deposited or caused to be deposited with the Trustee
the entire amount in moneys or U.S. Government Obligations
sufficient, without reinvestment, to pay at maturity or upon
redemption such outstanding Senior Debt Securities, including
principal (and premium, if any) and interest due or to become
due to such date of maturity or redemption, and if Century shall
also pay or cause to be paid all other sums payable thereunder
with respect to such Series (Section 11.01).
Additionally, the Indenture provides that Century may
discharge all of its obligations under the Indenture with
respect to any Series, subject to certain exceptions, if at any
time all outstanding Senior Debt Securities of such Series not
previously delivered to the Trustee for cancellation by Century
or which have not become due and payable as described above
shall have been paid by Century by depositing irrevocably with
the Trustee moneys or U.S. Government Obligations sufficient to
pay at maturity or upon redemption such outstanding Senior Debt
Securities, including principal (and premium, if any) and
interest due or to become due to such date of maturity or
redemption, and if Century shall also pay or cause to be paid
all other sums payable thereunder with respect to such Series
(Section 11.02).
Merger and Consolidation
Nothing in the Indenture or any of the Senior Debt
Securities prevents Century from consolidating or merging with
or into, or selling or otherwise disposing of all or
substantially all of its assets to, another corporation, subject
to Century's agreement (i) to obtain in connection therewith a
supplemental indenture pursuant to which the surviving entity or
transferee agrees to assume Century's obligations under all
outstanding Senior Debt Securities, including the due and
punctual payment of the principal of (and premium, if any, on)
and interest on such outstanding Senior Debt Securities, and
(ii) that such surviving entity or transferee is organized under
the laws of the United States, any state thereof or the District
of Columbia (Section 10.01).
Modification of Indenture
The Indenture contains provisions permitting Century, when
authorized by a Board Resolution, and the Trustee, with the
consent of the holders of not less than a majority in aggregate
principal amount of the Senior Debt Securities of any Series at
the time outstanding and affected by such modification, to
modify the Indenture or any supplemental indenture affecting
that Series or the rights of the holders thereof. However, no
such modification shall (i) extend the fixed maturity of any
Senior Debt Securities of any Series, reduce the principal
amount thereof, reduce the rate or extend the time of payment of
interest thereon or reduce any premium payable upon the
redemption thereof, without the consent of the holder of each
Senior Debt Security so affected, or (ii) reduce the aforesaid
percentage of Senior Debt Securities, the holders of which are
required to consent to any such supplemental indenture, without
the consent of the holder of each Senior Debt Security then
outstanding and affected thereby (Section 9.02).
Century and the Trustee may execute, without the consent of
any holder of Senior Debt Securities, any supplemental indenture
for certain other usual purposes such as (i) creating a new
Series; (ii) evidencing the assumption by any successor to
Century of Century's obligations under the Indenture; (iii)
adding covenants to the Indenture for the protection of the
holders of Senior Debt Securities; (iv) curing any ambiguity or
inconsistency in the Indenture; and (v) changing or eliminating
any provisions of the Indenture provided that there is no
outstanding Senior Debt Security of any Series created prior to
such change which would benefit therefrom (Sections 2.01, 9.01
and 10.01).
Limitations on Liens
The Indenture provides that Century will not, while any of
the Senior Debt Securities remain outstanding, create or suffer
to exist any mortgage, lien, pledge, security interest or other
encumbrance (individually, a "Lien" and collectively, "Liens")
upon Century's property, whether now owned or hereafter
acquired, unless it shall secure the Senior Debt Securities then
outstanding by such Lien equally and ratably with all
obligations and indebtedness thereby secured so long as such
obligations and indebtedness remain so secured. Notwithstanding
the foregoing, the Indenture will not restrict Century from
creating or suffering to exist:
(i) Liens upon property hereafter acquired by Century or
Liens on such property at the time of the acquisition
thereof, or conditional sales agreements or title
retention agreements with respect to any such
property;
(ii) Liens on the stock of a corporation which, when such
Liens arise, concurrently becomes a subsidiary of
Century, or Liens on all or substantially all of the
assets of a corporation arising in connection with
Century's purchase thereof;
(iii) Liens for taxes and similar levies; deposits to secure
performance or obligations under certain specified
circumstances and laws; mechanics' Liens and similar
Liens arising in the ordinary course of business;
Liens created by or resulting from legal proceedings
being contested in good faith; certain specified
zoning restrictions and other restrictions on the use
of real property; interests of lessors in property
subject to any capitalized lease; and certain other
similar Liens generally arising in the ordinary course
of business;
(iv) Liens existing on the date of the Indenture;
(v) Liens upon Century's property arising in connection
with the merger or consolidation of affiliates of
Century with or into Century; and
(vi) Liens that replace, extend or renew any Lien otherwise
permitted under the Indenture (Sections 4.05 and
4.06).
The restriction in the Indenture described above would not
afford the holders of the Senior Debt Securities protection in
the event of a highly leveraged transaction in which unsecured
indebtedness was incurred or in which the Liens arising in
connection therewith were freely permitted under the Indenture,
nor would it afford protection in the event of one or more
highly leveraged transactions in which secured indebtedness was
incurred by Century's subsidiaries. However, in the event of
one or more highly leveraged transactions in which secured
indebtedness was incurred by Century, these provisions would
require the Senior Debt Securities to be secured equally and
ratably with such indebtedness, subject to the exceptions
described above.
Concerning the Trustee
The Trustee, prior to the occurrence of an Event of
Default, undertakes to perform only such duties as are
specifically set forth in the Indenture and, after the
occurrence of an Event of Default, shall exercise the same
degree of care as a prudent person would exercise in the conduct
of such person's own affairs (Section 7.01). Subject to such
provision, the Trustee is under no obligation to exercise any of
the rights or powers vested in it by the Indenture at the
request, order or direction of any holders of Senior Debt
Securities, unless offered reasonable security or indemnity by
such holders against the costs, expenses and liabilities which
might be incurred thereby (Section 7.02). The Trustee is not
required to expend or risk its own funds or incur personal
financial liability in the performance of its duties if the
Trustee reasonably believes that repayment of such funds or
liability or adequate indemnity is not reasonably assured to it
(Section 7.01). Century shall pay the Trustee reasonable
compensation and reimburse it for all reasonable expenses
incurred in accordance with the Indenture (Section 7.06).
The Trustee may resign with respect to one or more Series
and a successor Trustee may be appointed to act with respect to
such Series (Section 7.10).
The Trustee also serves as trustee for certain of Century's
employee benefit plans and provides revolving credit and other
traditional banking services to Century. The following officers
and directors of Century are members of the board of directors
of the Trustee: Clarke M. Williams, Chairman of the Board, Glen
F. Post, III, President, Chief Executive Officer and Vice
Chairman of the Board, and William R. Boles, Director.
PLAN OF DISTRIBUTION
Century may sell Senior Debt Securities (i) through
underwriters or dealers, (ii) directly to one or more
purchasers, (iii) through agents, or (iv) through a combination
of any such methods of sale. The applicable Prospectus
Supplement will set forth the terms of the offering of the
Senior Debt Securities offered thereby, including the initial
public offering price, the name or names of any underwriters,
dealers or agents, any underwriting discounts and other items
constituting underwriters' compensation from Century, any
agents' commissions and any discounts, concessions or
commissions allowed or reallowed or paid by any underwriters to
other dealers. Only underwriters so named in the Prospectus
Supplement shall be deemed to be underwriters in connection with
the Senior Debt Securities offered thereby.
Underwriters may offer and sell any Series at a fixed price
or prices, which may be changed, or from time to time at market
prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. Century also
may directly offer and sell any Series in exchange for, among
other things, one or more of its outstanding issues of debt or
convertible debt securities. Century also may from time to time
authorize agents acting on a best efforts basis to solicit or
receive offers to purchase any Series upon the terms and
conditions set forth in the related Prospectus Supplement. In
connection with the sale of any Series, underwriters or agents
may be deemed to have received compensation from Century in the
form of underwriting discounts or commissions and may also
receive commissions from purchasers of such Series for whom they
may act as agents. Underwriters may sell any Series to or
through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the
underwriters or commissions from the purchasers for whom they
may act as agent, or both.
Underwriters, dealers and agents may be entitled, under
agreements entered into with Century, to indemnification against
and contributions toward certain civil liabilities, including
liabilities under the Securities Act. Century may agree to
reimburse underwriters or agents for certain expenses incurred
in connection with the distribution of any Series. Certain of
the underwriters, dealers or agents and their respective
associates may be customers of, engage in transactions with, and
perform services for, Century in the ordinary course of
business. The obligations of the underwriters to purchase the
Senior Debt Securities of the Series offered will be subject to
certain conditions precedent, and, unless otherwise indicated in
the related Prospectus Supplement, the underwriters will be
obligated to purchase all such Senior Debt Securities if any
such securities are purchased.
If so indicated in the applicable Prospectus Supplement,
Century will authorize agents, underwriters, or dealers to
solicit offers by certain institutional investors to purchase
Senior Debt Securities providing for payment and delivery on a
future date specified in the Prospectus Supplement. There may
be limitations on the minimum amount which may be purchased by
any such institutional investor or on the portion of the
aggregate principal amount of the particular Series of Senior
Debt Securities that may be sold pursuant to such arrangements.
Institutional investors to which such offers may be made, when
authorized, include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and
charitable institutions, and such other institutions as may be
approved by Century. The obligations of any such purchasers
pursuant to such delayed delivery and payment arrangements will
not be subject to any conditions except (i) the purchase by an
institution of the particular Senior Debt Securities shall not
at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which such institution is
subject and (ii) if the particular Senior Debt Securities are
being sold to underwriters, Century shall have sold to such
underwriters the total principal amount of such Senior Debt
Securities less the principal amount thereof covered by such
delayed payment and delivery arrangements. Underwriters will
not have any responsibility in respect of the validity of such
arrangements or the performance of Century or such institutional
investors thereunder.
The Senior Debt Securities of each Series, when first
issued, will not have an established trading market. Any
underwriters or agents to or through whom Senior Debt Securities
are sold by Century for public offering and sale may make a
market in such Senior Debt Securities, but such Underwriters or
agents will not be obligated to do so and may discontinue any
market making at any time without notice. If the Senior Debt
Securities are traded after their initial issuance, they may
trade at a discount from their initial public offering price,
depending upon prevailing interest rates, the market for similar
securities, the Company's performance and other factors. There
can be no assurance that an active public market for the Senior
Debt Securities will develop or be maintained.
LEGAL MATTERS
The validity of the Senior Debt Securities being offered
hereby will be passed upon for Century by Jones, Walker,
Waechter, Poitevent, Carrere & Denegre, L.L.P., New Orleans,
Louisiana. Certain legal matters relating to offerings of
Senior Debt Securities will be passed upon on behalf of the
applicable underwriters, dealers or agents by counsel named in
the applicable Prospectus Supplement.
EXPERTS
The consolidated financial statements and related financial
statement schedules of Century as of December 31, 1993 and 1992,
and for each of the years in the three-year period ended
December 31, 1993 incorporated by reference herein have been
incorporated by reference in reliance upon the report, also
incorporated by reference herein, of KPMG Peat Marwick,
independent certified public accountants, and upon the authority
of said firm as experts in accounting and auditing. The report
of KPMG Peat Marwick covering the consolidated financial
statements and related financial statement schedules refers to
changes in methods of accounting for income taxes and
postretirement benefits other than pensions in 1992.
The consolidated balance sheets of Celutel as of April 30,
1993 and 1992, and the related consolidated statements of
operations, changes in shareholders' deficit and cash flows for
each of the years in the three-year period ended April 30, 1993,
have been incorporated by reference herein in reliance on the
report of Coopers & Lybrand, independent certified public
accountants, given on the authority of such firm as experts in
accounting and auditing.
<PAGE>
====================================== =================================
No person has been authorized to
give any information or to make any
representations in connection with an
offering of Senior Debt Securities
other than those contained in this
Prospectus or in any related
Prospectus Supplement and, if given or
made, such other information and $400,000,00
representations must not be relied
upon as having been authorized by the
Company or its representatives,
including any underwriters. The
delivery of this Prospectus shall not,
under any circumstances, create any
implication that there has been no
change in the affairs of the Company
since the date hereof or that the
information contained herein is Century Telephone
correct as of any time subsequent to Enterprises, Inc.
its date. This Prospectus does not
constitute an offer to sell or a
solicitation of an offer to buy any
securities other than the registered
securities to which it relates and may
not be used to consummate any sales
unless accompanied by a Prospectus
Supplement. This Prospectus does not Senior Debt Securities
constitute an offer to sell or a
solicitation of an offer to buy such
securities in any circumstances in
which such offer or solicitation is
unlawful.
______________
_______________
PROSPECTUS
TABLE OF CONTENTS
Page _______________
Available Information.........
Incorporation of Certain
Documents by Reference......
Prospectus Summary............
The Company...................
Use of Proceeds...............
Capitalization................
Ratio of Earnings to
Fixed Charges................
Selected Financial Data.......
Description of Senior
Debt Securities..............
Plan of Distribution..........
Legal Matters.................
Experts.......................
___________________, 1994
==================================== ==================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated fees and expenses payable by Century in
connection with the offering described in the Registration
Statement are as follows:
Commission registration fee $137,931
Printing and engraving expenses $ 5,000
Legal fees and expenses $ 40,000
Accounting fees and expenses $ 45,000
Blue Sky fees and expenses
(including legal fees) $ 6,500
Fees and expenses of Trustee
(including legal fees) $ 15,000
Rating agency fees $240,000
Miscellaneous $ 5,000
__________
Total $494,431
Item 15. Indemnification of Directors and Officers.
Section 83 of the Louisiana Business Corporation Law
provides in part that a corporation may indemnify any director,
officer, employee or agent of the corporation against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection
with any action, suit or proceeding to which he is or was a party
or is threatened to be made a party (including any action by or
in the right of the corporation) if such action arises out of his
acts on behalf of the corporation and he acted in good faith not
opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful.
The indemnification provisions of the Louisiana Business
Corporation Law are not exclusive; however, no corporation may
indemnify any person for willful or intentional misconduct. A
corporation has the power to obtain and maintain insurance, or to
create a form of self-insurance on behalf of any person who is or
was acting for the corporation, regardless of whether the
corporation has the legal authority to indemnify the insured
person against such liability.
Article II, Section 9 of Century's by-laws (the "Indem-
nification By-law") provides for mandatory indemnification for
directors and officers or former directors and officers of
Century to the fullest extent permitted by Louisiana law.
Century's Articles of Incorporation authorize it to enter
into contracts with directors and officers providing for
indemnification to the fullest extent permitted by law. Century
has entered into indemnification contracts providing contracting
directors or officers the procedural and substantive rights to
indemnification currently set forth in the Indemnification By-law
("Indemnification Contracts"). The right to indemnification
provided by each Indemnification Contract applies to all covered
claims, whether such claims arose before or after the effective
date of the contract.
Century maintains an insurance policy covering the liability
of its directors and officers for actions taken in their official
capacity. The Indemnification Contracts provide that, to the
extent insurance is reasonably available, Century will maintain
comparable insurance coverage for each contracting party as long
as he serves as an officer or director and thereafter for so long
as he is subject to possible personal liability for actions taken
in such capacities. The Indemnification Contracts also provide
that if Century does not maintain comparable insurance, it will
hold harmless and indemnify a contracting party to the full
extent of the coverage that would otherwise have been provided
for thereunder.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of Century pursuant to the foregoing
provisions, or otherwise, Century has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable.
Item 16. Exhibits.
The exhibits to this registration statement are listed in
the exhibit index, which appears elsewhere herein and is
incorporated herein by reference.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this
registration statement (or the most recent post-
effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in this registration statement;
(iii)To include any material information with
respect to the plan of distribution not previously
disclosed in this registration statement or any
material change to such information in this
registration statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in
this registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of Century's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer, or controlling person of the
registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
(d) The undersigned registrant hereby undertakes to file an
application for the purposes of determining the eligibility of
the Trustee to act under subsection (a) of Section 310 of the
Trust Indenture Act in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of such Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Monroe, State of Louisiana, on March
30, 1994.
CENTURY TELEPHONE ENTERPRISES, INC.
By: /s/ Clarke M. Williams
______________________________
Clarke M. Williams
Chairman of the Board of Directors
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears immediately below constitutes and appoints
Clarke M. Williams, Glen F. Post, III and Harvey P. Perry, or any
one of them, his true and lawful attorney-in-fact and agent, with
full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration
Statement, and to file the same with all exhibits thereto, and
all supplements and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to
be done, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Clarke M. Williams Chairman of the Board March 30, 1994
______________________ of Directors
Clarke M. Williams
/s/ Glen F. Post, III President, Chief March 30, 1994
_______________________ Executive Officer and
Glen F. Post, III Vice Chairman of the
Board of Directors
/s/ R. Stewart Ewing, Jr. Senior Vice President March 30, 1994
_________________________ Chief Financial Officer
R. Stewart Ewing, Jr. (Principal Financial Officer)
/s/ Murray H. Greer Controller March 30, 1994
_________________________ (Principal Accounting Officer)
Murray H. Greer
/s/ W. Bruce Hanks President-Telecommunications March 30, 1994
________________________ Services and Director
W. Bruce Hanks
/s/ Harvey P. Perry Senior Vice President, March 30, 1994
________________________ General Counsel and Director
Harvey P. Perry
/s/ Jim D. Reppond President-Telephone Group March 30, 1994
________________________ and Director
Jim D. Reppond
/s/ William R. Boles, Jr. Director March 30, 1994
_________________________
William R. Boles, Jr.
/s/ Ernest Butler, Jr. Director March 30, 1994
__________________________
Ernest Butler, Jr.
/s/ Calvin Czeschin Director March 30, 1994
__________________________
Calvin Czeschin
/s/ James B. Gardner Director March 30, 1994
__________________________
James B. Gardner
/s/ R. L. Hargrove, Jr. Director March 30, 1994
__________________________
R. L. Hargrove, Jr.
/s/ Johnny Hebert Director March 30, 1994
_________________________
Johnny Hebert
/s/ F. Earl Hogan Director March 30, 1994
________________________
F. Earl Hogan
/s/ Tom S. Lovett Director March 30, 1994
________________________
Tom S. Lovett
/s/ C. G. Melville Director March 30, 1994
________________________
C. G. Melville
EXHIBIT INDEX
Exhibit No. Exhibit
___________ ________
1 Form of Underwriting Agreement.
4.1 Form of Indenture to be dated as of March 31, 1994
between Century and First American Bank & Trust of
Louisiana, as Trustee.
4.2 Form of Board Resolution to be used in designating and
authorizing the terms and conditions of any series of
Senior Debt Securities offered hereunder.
4.3 Form of Senior Debt Security (included within Exhibit
4.2)
4.4 Amended and Restated Articles of Incorporation of Century
dated December 15, 1988 (incorporated by reference to
Exhibit 3.1 to Century's Report on Form 10-K dated
December 31, 1988), as amended by the Articles of
Amendment dated May 2, 1989 (incorporated by reference to
Exhibit 4.1 to Century's Current Report on Form 8-K dated
May 5, 1989), by the Articles of Amendment dated May 17,
1990 (incorporated by reference to Exhibit 4.1 of
Century's Post-Effective Amendment No. 2 on Form S-8
dated December 21, 1990, Registration No. 33-17114), and
by the Articles of Amendment dated May 30, 1991
(incorporated by reference to Exhibit 3.1 to Century's
Current Report on Form 8-K dated June 12, 1991).
4.5 By-laws of Century, as amended through February 22, 1994
(incorporated by reference to Exhibit 3.2 of Century's
Annual Report on Form 10-K for the year ended December
31, 1993).
4.6 Amended and Restated Rights Agreement dated as of
November 17, 1986 between Century and MTrust Corp,
National Association, as Rights Agent (incorporated by
reference to Exhibit 4.1 to Century's Current Report on
Form 8-K dated December 20, 1988) as amended by an
amendment dated March 26, 1990 (incorporated by reference
to Exhibit 4.1 to Century's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1990) and the Second
Amendment thereto dated February 23, 1993 (incorporated
by reference to Exhibit 4.12 to Century's Annual Report
on Form 10-K for the year ended December 31, 1992).
4.7 Indenture dated February 1, 1992, between Century and
First American Bank & Trust of Louisiana (incorporated by
reference to Exhibit 4.23 to Century's Annual Report on
Form 10-K for the year ended December 31, 1991).
Certain instruments with respect to the Company's long-
term debt have been omitted pursuant to Regulation S-K,
Item 601. The Company hereby agrees to furnish copies of
such instruments to the Commission upon request.
5 Opinion of Jones, Walker, Waechter, Poitevent, Carrere &
Denegre, L.L.P.
12 Statement regarding computation of ratio of earnings to
fixed charges.
23.1 Consent of KPMG Peat Marwick.
23.2 Consent of Coopers & Lybrand.
23.3 Consent of Jones Walker, Waechter, Poitevent, Carrere &
Denegre, L.L.P. (included in Exhibit 5).
24 Power of Attorney (included on the signature pages of
this Registration Statement).
25 Statement of Eligibility of Trustee on Form T-1.
Exhibit 1
to Registration Statement
CENTURY TELEPHONE ENTERPRISES, INC.
$____________ ___% Senior Debt Securities due ____
UNDERWRITING AGREEMENT
___________ ___, 1994
[name]
As Representatives of
the several Underwriters
[address]
Dear Ladies and Gentlemen:
Century Telephone Enterprises, Inc., a Louisiana
corporation (the "Company"), proposes to issue and sell an
aggregate of $______________ principal amount of the Company's
___% Senior Debt Securities due ____ (the "Securities") to be
issued pursuant to an Indenture dated as of March __, 1994 (the
"Indenture"), between the Company and First American Bank & Trust
of Louisiana, as Trustee (the "Trustee"). The Securities will be
sold to you and to the other underwriters named in Schedule I
(collectively, the "Underwriters") for whom you are acting as
representatives (the "Representatives").
The purchase price for the Securities to be paid by the
several Underwriters shall be agreed upon by the Company and the
Representatives, acting on behalf of the several Underwriters,
and such agreement shall be set forth in a separate written
instrument substantially in the form of Exhibit A hereto (the
"Price Determination Agreement"). The Price Determination
Agreement may take the form of an exchange of any standard form
of written telecommunication among the Company and the
Representatives and shall specify such applicable information as
is indicated in Exhibit A hereto. The offering of the Securities
will be governed by this Agreement, as supplemented by the Price
Determination Agreement. From and after the date of the
execution and delivery of the Price Determination Agreement, this
Agreement shall be deemed to incorporate, and, unless the context
otherwise indicates, all references contained herein to "this
Agreement" and to the phrase "herein" shall be deemed to include
the Price Determination Agreement.
The Company confirms as follows its agreements with the
Representatives and the several other Underwriters.
1. Agreement to Sell and Purchase.
(a) On the basis of the representations,
warranties and agreements of the Company herein contained and
subject to all the terms and conditions of this Agreement, the
Company agrees to sell to each Underwriter named below, and each
Underwriter agrees, severally and not jointly, to purchase from
the Company, the principal amount of the Securities set forth
opposite the name of such Underwriter in Schedule I, plus such
additional principal amount of Securities which such Underwriter
may become obligated to purchase pursuant to Section 8 hereof,
all at the purchase price plus accrued interest, if any, from
_________ __, 1994, to the Closing Date (as hereinafter defined),
to be agreed upon by the Representatives and the Company in
accordance with Section 1(b) and as set forth in the Price
Determination Agreement.
(b) The purchase price for the Securities to be
paid by the several Underwriters shall be agreed upon and set
forth in the Price Determination Agreement, which shall be dated
the Execution Date, and a Final Prospectus (as hereinafter
defined) containing such price information shall be filed
pursuant to 424(b) under the Securities Act of 1933, as amended
(the "Act").
2. Delivery and Payment. Delivery of the Securities
shall be made to the Representatives for the accounts of the
Underwriters against payment of the purchase price by wire
transfer in same day funds to the Company or its order at the
office of [name & address] or at such other location as the
parties may agree. Such payment shall be made at 10:00 a.m., New
York City time, on the fifth business day following the date of
this Agreement or at such time on such other date, not later than
seven business days after the date of this Agreement, as may be
agreed upon by the Company and the Representatives (such date is
hereinafter referred to as the "Closing Date").
Certificates evidencing the Securities shall be in
temporary or definitive form and shall be registered in such
names and in such authorized denominations as the Representatives
shall request by written notice to the Company at least two
business days prior to the Closing Date. For the purpose of
expediting the checking and packaging of certificates for the
Securities, the Company agrees to make such certificates
available for inspection at least 24 hours prior to the Closing
Date.
The cost of original issue tax stamps, if any, in
connection with the issuance and sale of the Securities by the
Company to the respective Underwriters shall be borne by the
Company. The Company will pay and save each Underwriter and any
subsequent holder of the Securities harmless from any and all
liabilities with respect to or resulting from any failure or
delay in paying federal and state stamp and other issuance taxes,
if any, which may be payable or determined to be payable in
connection with the original issuance or sale to such Underwriter
of the Securities.
3. Representations and Warranties of the Company. The
Company represents and warrants to and covenants with each
Underwriter that:
(a) The Company meets the requirements for use of
Form S-3. A registration statement (Registration No. 33-_____)
on Form S-3 relating to the Securities, and the offering thereof
from time to time in accordance with Rule 415 under the Act,
including a Basic Prospectus and such amendments to such
registration statement as may have been required to the date of
this Agreement, has been (i) prepared by the Company under the
provisions of the Act, and the rules and regulations thereunder
(collectively referred to as the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission"); (ii) filed
with the Commission; and (iii) declared effective by the
Commission. Copies of such registration statement and
amendments, if any, and of any Preliminary Prospectus used by the
Company have been delivered to the Representatives. The offering
of the Securities is a Delayed Offering and, although the Basic
Prospectus may not include all the information with respect to
the Securities and the offering thereof required by the Act and
the Rules and Regulations to be included in the Final Prospectus,
such Basic Prospectus includes all such information required by
the Act and the Rules and Regulations to be included therein as
of the Effective Date. The Company will file the Final
Prospectus in accordance with Rule 424(b) of the Rules and
Regulations. As filed, the Final Prospectus shall include all
required information with respect to the Securities and the
offering thereof and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the
Execution Date or, to the extent not completed at the Execution
Date, shall contain such specific additional information and
other changes (beyond that contained in such Basic Prospectus and
any Preliminary Prospectus) as the Company has advised you, prior
to the Execution Date.
The term "Registration Statement" means such
registration statement as amended or supplemented to the date
hereof, including incorporated documents, financial statements
and all exhibits, each as amended, and, in the event any post-
effective amendment to such registration statement becomes
effective prior to the Closing Date, shall also mean such
registration statement as so amended. The term "Effective Date"
means the later of the date the Registration Statement initially
became effective, the date that any post-effective amendment or
amendments thereto became or become effective or the date of the
filing of the Company's most recent Annual Report on Form 10-K.
The term "Execution Date" means the date that this Agreement is
executed and delivered by the parties hereto. The term "Basic
Prospectus" means the prospectus contained in and forming a part
of the Registration Statement, including incorporated documents
or documents deemed to be incorporated therein, at the Execution
Date. The term "Preliminary Prospectus" means any preliminary
prospectus (or any supplement thereto) which describes the
Securities and the offering thereof and is used prior to the
filing of the Final Prospectus. The term "Final Prospectus"
means the prospectus supplement relating to the Securities as
first filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations after the Execution Date, together with the
Basic Prospectus. The term "Delayed Offering" means an offering
of securities pursuant to Rule 415 under the Rules and
Regulations which does not commence promptly after the effective
date of a registration statement.
(b) On the Effective Date, the Registration
Statement did and when the Final Prospectus is first filed with
the Commission pursuant to Rule 424(b), the Final Prospectus (and
any supplement thereto), including the financial statements
included or incorporated by reference in the Final Prospectus,
will comply in all material respects with the applicable
provisions of the Act, the Rules and Regulations, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), the rules
and regulations thereunder (the "Exchange Act Rules and
Regulations"), the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") and the rules and regulations thereunder
(the "Trust Indenture Act Rules and Regulations") and will
contain all information required to be included therein in
accordance with the Act, the Rules and Regulations, the Exchange
Act and the Exchange Act Rules and Regulations. On the Effective
Date, the Registration Statement did not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. At the date the Final Prospectus
(together with any supplement thereto) is first filed with the
Commission pursuant to Rule 424(b) and at the Closing Date, the
Final Prospectus did not or will not contain any untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
foregoing representations and warranties in this Section 3(b) do
not apply to any statements or omissions made in reliance on and
in conformity with information furnished in writing to the
Company by the Representatives specifically for inclusion in the
Registration Statement or Final Prospectus (or any supplement
thereto). On the Effective Date, the date the Final Prospectus
is first filed with the Commission pursuant to Rule 424(b), and
at all subsequent times to and including the Closing Date, the
Indenture did or will comply with all applicable provisions of
the Trust Indenture Act and the Trust Indenture Act Rules and
Regulations.
(c) The documents which are incorporated by
reference in the Basic Prospectus, any Preliminary Prospectus and
the Final Prospectus or from which information is so incorporated
by reference, when they became effective or were filed with the
Commission, as the case may be, complied in all material respects
with the requirements of the Act, the Rules and Regulations, the
Exchange Act or the Exchange Act Rules and Regulations, as
applicable; and any documents so filed and incorporated by
reference subsequent to the Effective Date shall, when they are
filed with the Commission, conform in all material respects with
the requirements of the Act, the Rules and Regulations, the
Exchange Act or the Exchange Act Rules and Regulations, as
applicable.
(d) Each of the Company and each of its
subsidiaries listed on Schedule II hereto (the "Subsidiaries")
is, and at the Closing Date will be, a corporation duly
organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation. Each of the Company and
each of the Subsidiaries has, and at the Closing Date will have,
full power and authority to conduct all the activities conducted
by it, to own or lease all the assets owned or leased by it and
to conduct its business as described in the Registration
Statement and the Final Prospectus. Each of the Company and each
of the Subsidiaries is, and at the Closing Date will be, duly
licensed or qualified to do business and in good standing as a
foreign corporation in all jurisdictions in which the nature of
the activities conducted by it or the character of the assets
owned or leased by it makes such licensing or qualification
necessary except where the failure to be so qualified or licensed
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole. For purposes of this Agreement,
(i) "subsidiaries" shall mean (a) the Company's directly and
indirectly majority-owned corporate subsidiaries and (b) the
partnerships, joint ventures and other entities of which the
Company is the majority owner and managing general partner and
(ii) the phrase "Company and its subsidiaries, taken as a whole"
shall be construed to include minority-owned partnerships in
which a corporate subsidiary of the Company is a limited partner,
but only to the extent of the Company's equity interests in such
partnerships. Complete and correct copies of the certificate of
incorporation and of the by-laws of the Company and each of the
Subsidiaries and all amendments thereto have been delivered to
the Representatives, and no changes therein will be made
subsequent to the Execution Date and prior to the Closing Date.
(e) The Securities have been duly and validly
authorized and, when authenticated by the Trustee and issued,
delivered and sold in accordance with this Agreement and the
Indenture, will have been duly and validly executed,
authenticated, issued and delivered and will constitute valid and
binding obligations of the Company, enforceable against the
Company in accordance with their respective terms and entitled to
the benefits provided by the Indenture except (i) that such
enforcement may be subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other
similar laws, now or hereafter in effect, relating to creditors'
rights generally and (ii) that the remedy of specific performance
and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(f) The description of the Securities in the
Registration Statement and the Final Prospectus is, and at the
Closing Date will be, complete and accurate in all material
respects and, insofar as such description contains statements
constituting a summary of the legal matters or documents referred
to therein, such description fairly summarizes the information
referred to therein.
(g) The financial statements and schedules
included or incorporated by reference in the Registration
Statement or the Final Prospectus present fairly the consolidated
financial condition of the Company as of the respective dates
thereof and the consolidated results of operations and cash flows
of the Company for the respective periods covered thereby, all in
conformity with generally accepted accounting principles applied
on a consistent basis throughout the entire period involved,
except as otherwise disclosed in the Registration Statement or
the Final Prospectus. The selected consolidated financial data
included in the Registration Statement or the Final Prospectus
present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited
consolidated financial statements of the Company included in the
Registration Statement or the Final Prospectus. No other
financial statements or schedules of the Company are required by
the Act, the Rules and Regulations or the Exchange Act to be
included in or incorporated by reference into the Registration
Statement or the Final Prospectus. KPMG Peat Marwick ("Peat
Marwick") and Coopers & Lybrand, who have reported on certain
financial statements and schedules of the Company and Celutel,
Inc, respectively, each are or were, as the case may be,
independent accountants with respect to the Company and Celutel,
Inc, respectively, as required by the Act and the Rules and
Regulations.
(h) Subsequent to the respective dates as of
which information is given in the Registration Statement and the
Final Prospectus and prior to the Closing Date, except as set
forth in or contemplated by the Registration Statement and the
Final Prospectus, (i) there has not been and will not have been
any material change in the capitalization of the Company, (ii)
there has not been and will not have been any material adverse
change in the business, properties, business prospects, condition
(financial or otherwise) or results of operations of the Company
and its subsidiaries, taken as a whole, arising for any reason
whatsoever, (iii) except in the ordinary course of business,
neither the Company nor any of the Subsidiaries has incurred nor
will it voluntarily incur any liabilities or obligations, direct
or contingent, that are material to the Company and its
subsidiaries, taken as a whole and (iv) the Company has not and
will not have paid or declared any dividends or other
distributions of any kind on any class of its capital stock
except cash dividends paid in the ordinary course of business and
consistent with past practice.
(i) The Company is not an "investment company" or
an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended.
(j) Except as set forth in the Registration
Statement and the Final Prospectus, there are no actions, suits
or proceedings pending or, to the best of the Company's
knowledge, threatened against or affecting the Company or any of
its subsidiaries or any of their respective officers in their
capacity as such, before or by any federal or state court,
commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, that is likely to
materially and adversely affect the business, properties,
business prospects, condition (financial or otherwise) or results
of operations of the Company and its subsidiaries, taken as a
whole. All actions, suits or proceedings now pending against the
Company or any of its subsidiaries, or any of their respective
officers in their capacities as such, before any Federal or state
court, commission, regulatory body, administrative agency or
other governmental body, domestic or foreign, if decided or
resolved in a manner unfavorable to the Company or any of its
subsidiaries, would not be likely to, singly or in the aggregate,
materially and adversely affect the business, properties,
business prospects, condition (financial or otherwise) or results
of operations of the Company and its subsidiaries, taken as a
whole.
(k) The Company and each of the Subsidiaries has,
and at the Closing Date, will have (i) such franchises,
certificates, authorities or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies necessary
to conduct the business now operated by them, other than those
the absence of which would not be likely to have a materially
adverse effect on the business, properties, business prospects,
condition (financial or otherwise) or results of operations of
the Company and its subsidiaries, taken as a whole, and neither
the Company nor any of the Subsidiaries has received any notice
of proceedings relating to the revocation or modification of any
such franchise, certificate, authority or permit which, singly or
in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would be likely to materially and adversely
affect the business, properties, business prospects, condition
(financial or otherwise) or results of operations of the Company
and its subsidiaries, taken as a whole, (ii) complied in all
material respects with all laws, statutes, ordinances, rules,
regulations, orders or decrees of any court, governmental body or
regulatory authority or administrative agency having jurisdiction
over the Company or any Subsidiary or any of the property or
assets of the Company or any Subsidiary (including, without
limitation, any such laws, statutes, ordinances, rules
regulations, orders or decrees with respect to environmental
protection or the release, handling, treatment, storage or
disposal of hazardous substances or toxic wastes), the failure to
comply with which would be likely to materially adversely affect
the business, properties, business prospects, condition
(financial or otherwise) or results of operations of the Company
and its subsidiaries, taken as a whole, and (iii) performed in
all material respects all of its obligations required to be
performed by it under any material contract or other instrument
to which it is a party or by which its property is bound or
affected, and is not, and at the Closing Date, will not be, in
default under any such contract or instrument the effect of which
would be likely to materially adversely affect the business,
properties, business prospects, condition (financial or
otherwise) or results of operations of the Company and its
subsidiaries, taken as a whole. To the best knowledge of the
Company, no other party under any material contract or other
instrument to which it or any Subsidiary is a party is in default
in any respect thereunder, except for any such defaults (alone or
collectively) that would not be likely to have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
provided that it is understood and agreed that neither the
Company nor any Subsidiary has undertaken any special
investigation to determine compliance by such other parties under
any such contract or other instrument. The Company is not, and
at the Closing Date, will not be, in violation of any provision
of its articles of incorporation or by-laws. The Subsidiaries
are not, and at the Closing Date, will not be, in violation of
any material provision of their respective articles of
incorporation or by-laws.
(l) No consent, approval, authorization or order
of, or any filing, registration, qualification or declaration
with, any court or governmental agency or body is required for
(i) the execution, delivery or performance of this Agreement, the
Securities or the Indenture by the Company, (ii) the
authorization, offer, issuance, transfer, sale or delivery of the
Securities by the Company in accordance herewith or (iii) the
consummation by the Company of the transactions on its part
contemplated herein and by the Indenture, except such as may have
been obtained under the Act, the Rules and Regulations, the Trust
Indenture Act or the Trust Indenture Act Rules and Regulations
and such as may be required under foreign or state securities or
Blue Sky laws or the by-laws and rules of the National
Association of Securities Dealers, Inc. (the "NASD") in
connection with the purchase and distribution of the Securities
by the Underwriters.
(m) The Company has full corporate power and
authority to enter into this Agreement and the Indenture. This
Agreement has been duly authorized, executed and delivered by the
Company and, when executed and delivered by the Representatives,
constitutes a valid and binding agreement of the Company and is
enforceable against the Company in accordance with the terms
hereof, except (i) that such enforcement may be subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws, now or hereafter in effect,
relating to creditors' rights generally, (ii) that the remedy of
specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought
and (iii) rights to indemnity and contribution hereunder may be
limited by federal or state laws relating to securities or the
policies underlying such laws. The Indenture has been duly
authorized and, when executed and delivered by the Company and
the Trustee and qualified under the Trust Indenture Act, will
constitute a valid and binding agreement of the Company and will
be enforceable against the Company in accordance with its terms,
except (i) that such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws, now
or hereafter in effect, relating to creditors' rights generally
and (ii) that the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any
proceeding therefor may be brought. The execution, delivery and
performance by the Company of this Agreement, the Indenture and
the Securities and the consummation of the transactions
contemplated hereby and thereby will not result in the creation
or imposition of any lien, charge or encumbrance upon any of the
assets of the Company or any of the Subsidiaries pursuant to the
terms or provisions of, or, except as disclosed in the
Registration Statement or the Final Prospectus, result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, or give any other party a right to
terminate any of its obligations under, or result in the
acceleration of any obligation under, the articles of
incorporation or by-laws (or comparable instruments) of the
Company or any of the Subsidiaries, any indenture, mortgage, deed
of trust, voting trust agreement, loan agreement, bond,
debenture, note agreement or other evidence of indebtedness,
lease, contract or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which the
Company or any of the Subsidiaries or any of their respective
properties is or are bound or affected, or violate or conflict
with any franchise or any judgment, ruling, decree, order,
statute, rule or regulation of any court or other governmental
agency or body applicable to the business or properties of the
Company or any of the Subsidiaries.
(n) The Company and each of the Subsidiaries has
good and marketable title to all franchises, properties and
assets owned by it, which are material to the business or
operations of the Company and its subsidiaries, taken as a whole,
free and clear of all liens, charges, encumbrances or
restrictions, except such as are described in the Final
Prospectus. The Company and each of the Subsidiaries has valid,
subsisting and enforceable leases for the properties leased by
it, with such exceptions as would not materially interfere with
the business or operations of the Company and it subsidiaries,
taken as a whole.
(o) All existing material contracts described in
the Final Prospectus to which the Company or any of the
Subsidiaries is a party have been duly authorized, executed and
delivered by the Company or such Subsidiary, constitute valid and
binding agreements of the Company or such Subsidiary and are
enforceable against the Company or such Subsidiary in accordance
with the terms thereof, except (i) that such enforcement may be
subject to bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws, now or hereafter in
effect, relating to creditors' rights generally and (ii) that the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may
be brought.
(p) No statement, representation, warranty or
covenant made by the Company in this Agreement or the Indenture
or made in any certificate or document required by this Agreement
to be delivered to the Representatives was or will be, when made,
inaccurate, untrue or incorrect in any material respect.
(q) No holder of securities of the Company has
rights to the registration of any securities of the Company
because of the filing of the Registration Statement.
4. Agreements of the Company. The Company agrees with
each of the several Underwriters as follows:
(a) The Company will not, either prior to the
Effective Date or thereafter during such period as the Final
Prospectus is required by law to be delivered in connection with
sales of the Securities by an Underwriter or dealer, file any
amendment or supplement to the Registration Statement or the
Final Prospectus, unless a draft thereof shall first have been
submitted to the Representatives within a reasonable period of
time prior to the filing thereof and the Representatives shall
not have objected thereto in good faith.
(b) The Company will notify the Representatives
promptly, and will confirm such advice in writing, (1) when any
post-effective amendment to the Registration Statement becomes
effective, (2) of any request by the Commission for amendments or
supplements to the Registration Statement or the Final Prospectus
or for additional information, (3) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for
that purpose or the threat thereof, (4) of the happening of any
event during the period mentioned in the second sentence of
Section 4(e) that in the judgment of the Company requires the
Company to file an amendment or supplement to the Registration
Statement and (5) of receipt by the Company, or any
representatives or attorney of the Company, of any other
communication from the Commission relating to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus or
the Final Prospectus or the offering of the Securities. If at
any time the Commission shall issue any order suspending the
effectiveness of the Registration Statement, the Company will
make every reasonable effort to obtain the withdrawal of such
order at the earliest possible moment.
(c) The Company will furnish to the
Representatives, without charge, two signed copies of the
Registration Statement and of any post-effective amendment
thereto, including financial statements and schedules, and all
exhibits thereto (including any documents filed under the
Exchange Act and deemed to be incorporated by reference into the
Final Prospectus), and will furnish to the Representatives,
without charge, for transmittal to each of the other
Underwriters, a copy of the Registration Statement and any post-
effective amendment thereto, including financial statements and
schedules but without exhibits.
(d) The Company will comply with all the
provisions of any undertakings contained in the Registration
Statement.
(e) On the Effective Date, and thereafter from
time to time, the Company will deliver to each of the
Underwriters, without charge, as many copies of the Final
Prospectus or any supplement thereto, as the Representatives may
reasonably request. The Company consents to the use of any
Preliminary Prospectus and the Final Prospectus or any amendment
or supplement thereto by the several Underwriters and by all
dealers to whom the Securities may be sold, both in connection
with the offering or sale of the Securities and for any period of
time thereafter during which a prospectus is required by law to
be delivered in connection therewith. If during such period of
time, any event shall occur which in the judgment of the Company
or counsel to the Underwriters should be set forth in the Final
Prospectus in order to make any statement therein, in the light
of the circumstances under which it was made when delivered, not
misleading, or if it is necessary to supplement the Final
Prospectus to comply with law, the Company will forthwith prepare
and duly file with the Commission an appropriate supplement
thereto, and will deliver to each of the Underwriters, without
charge, such number of copies thereof as the Representatives may
reasonably request. The Company shall not file any document
under the Exchange Act before the termination of the offering of
the Securities by the Underwriters if such document would be
deemed to be incorporated by reference into any Preliminary
Prospectus or the Final Prospectus, unless a draft thereof shall
first have been submitted to the Representatives within a
reasonable period of time prior to the filing thereof and the
Representatives shall not have objected thereto in good faith.
(f) Prior to any public offering of the
Securities by the Underwriters, the Company will cooperate with
the Representatives and counsel to the Underwriters in connection
with the registration or qualification of the Securities for
offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representatives may request; provided, that
in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or
to take any action which would subject it to general service of
process in any jurisdiction where it is not now so subject.
(g) During the period of five years commencing on
the Effective Date, the Company will furnish to the
Representatives and each other Underwriter who may so request
copies of such financial statements and other periodic and
special reports as the Company may from time to time distribute
generally to the holders of any class of its capital stock, and
will furnish to the Representatives and each other Underwriter
who may so request a copy of each annual or other report it shall
be required to file with the Commission.
(h) The Company will make generally available to
holders of its securities as soon as may be practicable but in no
event later than the last day of the fifteenth full calendar
month following the calendar quarter in which the Execution Date
falls, an earning statement (which need not be audited but shall
be in reasonable detail) for a period of 12 months ended
commencing after the effective date, within the meaning of and
satisfying the provisions of Section 11(a) of the Act (including
Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated
by this Agreement are consummated or this Agreement is
terminated, the Company will pay, or reimburse if paid by the
Representatives, all costs and expenses incident to the
performance of the obligations of the Company under this
Agreement, including but not limited to costs and expenses of or
relating to (1) the preparation, printing and filing of the
Registration Statement and exhibits thereto, the Basic Prospectus
any Preliminary Prospectus, the Final Prospectus and any
amendment or supplement to the Registration Statement or the
Final Prospectus, (2) the preparation and delivery of
certificates representing the Securities, (3) the printing of
this Agreement, any Agreement Among Underwriters, any Dealer
Agreements and any Underwriters' Questionnaire, (4) furnishing
(including costs of shipping and mailing) such copies of the
Registration Statement, the Basic Prospectus, any Preliminary
Prospectus and the Final Prospectus, and all amendments and
supplements thereto, as may be requested for use in connection
with the offering and sale of the Securities by the Underwriters
or by dealers to whom Securities may be sold, (5) any filings
required to be made by the Underwriters with the NASD, and the
fees, disbursements and other charges of counsel for the
Underwriters in connection therewith, (6) the registration or
qualification of the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions designated
pursuant to Section 4(f), including the fees, disbursements and
other charges of counsel to the Underwriters in connection
therewith, and the preparation and printing of preliminary,
supplemental and final Blue Sky memoranda, (7) counsel to the
Company, (8) the transfer agent and registrar for the Securities
(9) the rating of the Securities by one or more rating agencies
and (10) the Trustee and any agent of the Trustee and the fees,
disbursements and other charges of counsel for the Trustee in
connection with the Indenture and the Securities. The Company
will also pay the expenses in connection with the procurement by
the Representatives of immediately available funds for the
purchase of the Securities as contemplated by Section 2 hereof,
which expenses shall be calculated by reference to the rate on
overnight Federal funds transactions with members of the Federal
Reserve System arranged on the day next preceding the Closing
Date, such rate to be agreed upon by the Company and the
Representatives.
(j) If this Agreement shall be terminated by the
Company pursuant to any of the provisions hereof (other than
pursuant to Section 8) or if for any reason the Company shall be
unable to perform its obligations hereunder, the Company will
reimburse the several Underwriters for all out-of-pocket expenses
(including the fees, disbursements and other charges of counsel
to the Underwriters) reasonably incurred by them in connection
herewith.
(k) The Company will not at any time, directly or
indirectly, take any action intended, or which might reasonably
be expected, to cause or result in, or which will constitute
stabilization of the price of the Securities to facilitate the
sale or resale of any of the Securities.
(l) The Company will apply the net proceeds from
the offering and sale of the Securities in the manner set forth
in the Final Prospectus under "Use of Proceeds".
(m) Until sixty (60) days from the Execution Date,
the Company will not, without the consent of the Representatives,
offer, sell or contract to sell, or otherwise dispose of, by
public offering, or announce the public offering of, any other
debt securities of the Company other than the Securities.
5. Conditions of Obligations of the Underwriters. In
addition to the execution and delivery of the Price Determination
Agreement, the obligations of each Underwriter hereunder are
subject to the following conditions:
(a) (i) No stop order suspending the
effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall be pending or
threatened by the Commission, (ii) no order suspending the
effectiveness of the Registration Statement or the qualification
or registration of the Securities under the securities or Blue
Sky laws of any jurisdiction shall be in effect and no proceeding
for such purpose shall be pending before or threatened or
contemplated by the Commission or the authorities of any such
jurisdiction, (iii) any request for additional information on the
part of the staff of the Commission or any such authorities with
respect to the offering of the Securities shall have been
complied with to the satisfaction of the staff of the Commission
or such authorities and (iv) after the Execution Date no
amendment or supplement to the Registration Statement or the
Final Prospectus shall have been filed unless a copy thereof was
first submitted to the Representatives and the Representatives
did not object thereto in good faith, and the Representatives
shall have received certificates, dated the Closing Date and
signed on behalf of the Company by the Chief Executive Officer or
the Chairman of the Board of Directors of the Company and the
Chief Financial Officer of the Company (who may, as to
proceedings threatened, rely upon the best of their information
and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus (i) there shall not have been a material adverse
change in the general affairs, business, business prospects,
properties, management, condition (financial or otherwise) or
results of operations of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business, in each case other than as set forth
in or contemplated by the Registration Statement and the Final
Prospectus and (ii) neither the Company nor any of the
Subsidiaries shall have sustained any loss or interference with
its business or properties from fire, explosion, flood or other
casualty, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action,
order or decree, which is not set forth in the Registration
Statement and the Final Prospectus, and which in each case in
clause (ii) is material to the Company and its subsidiaries,
taken as a whole, if in the judgment of the Representatives any
such development makes it impracticable or inadvisable to
consummate the sale and delivery of the Securities by the
Underwriters in accordance with the terms hereof and thereof.
(c) Since the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus, there shall have been no litigation or other
proceeding instituted against the Company or any of the
Subsidiaries or any of their respective officers or directors in
their capacities as such, before or by any federal, state or
local court, commission, regulatory body, administrative agency
or other governmental body, domestic or foreign, in which
litigation or proceeding an unfavorable ruling, decision or
finding would materially and adversely affect the business,
properties, business prospects, condition (financial or
otherwise) or results of operations of the Company and its
subsidiaries, taken as a whole.
(d) Each of the representations and warranties of
the Company contained herein shall be true and correct in all
material respects at the Closing Date and all covenants and
agreements herein contained to be performed on the part of the
Company and all conditions herein contained to be fulfilled or
complied with by the Company at or prior to the Closing Date
shall have been duly performed, fulfilled or complied with.
(e) On the Closing Date, the Representatives
shall have received an opinion, dated the Closing Date, and
satisfactory in form and substance to counsel for the
Underwriters, from Harvey P. Perry, Esq., General Counsel of the
Company, and from Jones, Walker, Waechter, Poitevent, Carrere &
Denegre, L.L.P. and special counsel to the Company, to the effect
set forth in Exhibit B and Exhibit C hereto, respectively.
(f) On the Closing Date, the Representatives
shall have received an opinion, dated the Closing Date, from
Winthrop, Stimson, Putnam & Roberts, counsel to the Underwriters,
with respect to the Registration Statement, the Final Prospectus
and this Agreement, which opinion shall be satisfactory in all
respects to the Representatives. In giving such opinion, such
counsel may rely, as to all matters governed by the laws of the
State of Louisiana, upon the opinion of Jones, Walker, Waechter,
Poitevent, Carrere & Denegre, L.L.P. Such counsel may also state
that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of
officers of the Company and its subsidiaries, and certificates of
public officials.
(g) Concurrently with the execution and delivery
of this Agreement, Peat Marwick and Coopers & Lybrand shall have
furnished to the Representatives letters, dated the date of this
Agreement, addressed to the Representatives and in form and
substance satisfactory to the Representatives, confirming that
they are or were, as the case may be, independent accountants
with respect to the Company and Celutel, Inc., respectively, as
required by the Act and the Rules and Regulations and with
respect to the financial and other statistical and numerical
information contained or incorporated by reference in the
Registration Statement. At the Closing Date, Peat Marwick shall
have furnished to the Representatives a letter, dated the date of
the Closing Date, which shall confirm, on the basis of a review
in accordance with the procedures set forth in the letter from
Peat Marwick, that nothing has come to their attention during the
period from the date of their letter referred to in the prior
sentence to a date (specified in the letter) not more than five
days prior to the Closing Date which would require any change in
their letter dated the Execution Date if it were required to be
dated and delivered at the Closing Date.
(h) Concurrently with the execution and delivery
of this Agreement and at the Closing Date, there shall be
furnished to the Representatives an accurate certificate, dated
the date of its delivery, signed on behalf of the Company by each
of the Chief Executive Officer and the Chief Financial Officer of
the Company, in form and substance satisfactory to the
Representatives, to the effect that:
(i) Each signer of such certificate has carefully
examined the Registration Statement and the Final Prospectus
and (A) as of the date of such certificate, (i) the
Registration Statement is true and correct in all material
respects and does not omit to state a material fact required
to be stated therein or necessary in order to make the
statements therein not untrue or misleading and (ii) the
Final Prospectus is true and correct in all material
respects and does not omit to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
untrue or misleading (it being understood that to the extent
a statement in the Final Prospectus, including any documents
deemed to be incorporated by reference therein, refers to
and speaks as of a specific date, each signer of such
certificate only represents with respect to such statement
that it was true and correct in all material respects as of
such date) and (B) in the case of the certificate delivered
at the Closing Date, since the Execution Date, no event has
occurred as a result of which it is necessary to supplement
the Final Prospectus in order to make the statements
therein, in light of the circumstances under which they were
made, not untrue or misleading in any material respect and
there has been no document required to be filed under the
Exchange Act and the Exchange Act Rules and Regulations that
upon such filing would be deemed to be incorporated by
reference into the Final Prospectus that has not been so
filed.
(ii) Each of the representations and warranties of
the Company contained in this Agreement were, when
originally made, and are, at the time such certificate is
delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be
performed by the Company on or prior to the delivery of such
certificate has been duly, timely and fully performed and
each condition herein required to be complied with by the
Company on or prior to the date of such certificate has been
duly, timely and fully complied with.
(i) The Securities shall be qualified for sale in
such states as the Representatives may reasonably request, each
such qualification shall be in effect and not subject to any stop
order or other proceeding on the Closing Date.
(j) The Company shall have furnished to the
Representatives such certificates, in addition to those
specifically mentioned herein, as the Representatives may have
reasonably requested as to the accuracy and completeness at the
Closing Date of any statement in the Registration Statement or
the Final Prospectus or any documents filed under the Exchange
Act and deemed to be incorporated by reference into the Final
Prospectus, as to the accuracy at the Closing Date, of the
representations and warranties of the Company herein, as to the
performance by the Company of its obligations hereunder, or as to
the fulfillment of the conditions concurrent and precedent to the
obligations hereunder of the Representatives.
6. Indemnification.
(a) The Company will indemnify and hold harmless
each Underwriter, the directors, officers, employees and agents
of each Underwriter and each person, if any, who controls each
Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act from and against any and all
losses, claims, liabilities, expenses and damages (including any
and all investigative, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claim asserted), to
which they, or any of them, may become subject under the Exchange
Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims,
liabilities, expenses or damages arise out of or are based on any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Basic Prospectus,
any Preliminary Prospectus or the Final Prospectus or any
amendment or supplement thereto or in any documents filed under
the Exchange Act and deemed to be incorporated by reference into
the Final Prospectus, or the omission or alleged omission to
state in (i) the Registration Statement, any amendment or
supplement thereto a material fact required to be stated in it or
necessary to make the statements in it not misleading or (ii) the
Basic Prospectus, any Preliminary Prospectus or the Final
Prospectus a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, provided that the Company will
not be liable to the extent that such loss, claim, liability,
expense or damage arises from the sale of the Securities in the
public offering to any person by an Underwriter and is based on
an untrue statement or omission or alleged untrue statement or
omission made in reliance on and in conformity with information
relating to any Underwriter furnished in writing to the Company
by the Representatives on behalf of any Underwriter expressly for
inclusion in the Registration Statement, the Basic Prospectus,
any Preliminary Prospectus or the Final Prospectus and provided
further, that the Company shall not be liable in any such case
under the indemnity agreement in this Section 6(a) with respect
to any Preliminary Prospectus or Final Prospectus, to the extent
that any such loss, claim, liability, expense or damage results
from the fact that the Underwriter sold Securities to a person to
whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Final Prospectus or of
the Final Prospectus as then amended or supplemented in any case
where such delivery is required by the Act if the Company has
previously furnished copies thereof to the Underwriter and the
loss, claim, liability, expense or damage of the Underwriter, the
directors, officers, employees or agents of the Underwriter or
any person who controls the Underwriter results from an untrue
statement, alleged untrue statement, omission or alleged omission
of a material fact contained in the Preliminary Prospectus which
was corrected in the Final Prospectus (or the Final Prospectus as
amended or supplemented). This indemnity agreement is in
addition to any liability that the Company might otherwise have.
(b) Each Underwriter will indemnify and hold
harmless the Company and its officers, employees and agents and
each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, each
director of the Company and each officer of the Company who signs
the Registration Statement to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only insofar
as losses, claims, liabilities, expenses or damages arise out of
or are based on any untrue statement or omission or alleged
untrue statement or omission made in reliance on and in
conformity with information relating to such Underwriter
furnished in writing to the Company by the Representatives on
behalf of such Underwriter expressly for use in the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus or
the Final Prospectus. This indemnity is in addition to any
liability that each Underwriter might otherwise have.
(c) Any party that proposes to assert the right
to be indemnified under this Section 6 will, promptly after
receipt of notice of commencement of any action against such
party in respect of which a claim is to be made against an
indemnifying party or parties under this Section 6, notify each
such indemnifying party of the commencement of such action,
enclosing a copy of all papers served, but the omission so to
notify such indemnifying party will not relieve it from any
liability that it may have to any indemnified party under the
foregoing provisions of this Section 6 unless, and only to the
extent that, such omission results in the forfeiture of
substantive rights or defenses by the indemnifying party. If any
such action is brought against any indemnified party and it
notifies the indemnifying party of its commencement, the
indemnifying party will be entitled to participate in and, to the
extent that it elects by delivering written notice to the
indemnified party promptly after receiving notice of the
commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume
the defense of the action, with counsel satisfactory to the
indemnified party, and after notice from the indemnifying party
to the indemnified party of its election to assume the defense,
the indemnifying party will not be liable to the indemnified
party for any legal or other expenses except as provided below
and except for the reasonable costs of investigation subsequently
incurred by the indemnified party in connection with the defense.
The indemnified party will have the right to employ its own
counsel in any such action, but the fees, expenses and other
charges of such counsel will be at the expense of such
indemnified party unless (1) the employment of counsel by the
indemnified party has been authorized in writing by the
indemnifying party, (2) the indemnified party has reasonably
concluded (based on advice of counsel) that there may be legal
defenses available to it or other indemnified parties that are
different from or in addition to those available to the
indemnifying party, (3) a conflict or potential conflict exists
(based on advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the
indemnifying party has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving
notice of the commencement of the action, in each of which cases
the reasonable fees, disbursements and other charges of counsel
will be at the expense of the indemnifying party or parties. It
is understood that the indemnifying party or parties shall not,
in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm
(plus any local counsel retained by you in your reasonable
judgment) admitted to practice in such jurisdiction at any one
time for all such indemnified party or parties. All such fees,
disbursements and other charges will be reimbursed by the
indemnifying party promptly as they are incurred. An
indemnifying party will not be liable for any settlement of any
action or claim effected without its written consent (which
consent will not be unreasonably withheld).
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification
provided for in the foregoing paragraphs of this Section 6 is
applicable in accordance with its terms but for any reason is
held to be unavailable from the Company or the Underwriters, the
Company and the Underwriters will contribute to the total losses,
claims, liabilities, expenses and damages (including any
investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Company from persons
other than the Underwriters, such as persons who control the
Company within the meaning of the Act, officers of the Company
who signed the Registration Statement and directors of the
Company, who also may be liable for contribution) to which the
Company and any one or more of the Underwriters may be subject in
such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the
Underwriters on the other. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the
table on the cover page of the Final Prospectus. If, but only
if, the allocation provided by the foregoing sentence is not
permitted by applicable law, the allocation of contribution shall
be made in such proportion as is appropriate to reflect not only
the relative benefits referred to in the foregoing sentence but
also the relative fault of the Company, on the one hand, and the
Underwriters, on the other, with respect to the statements or
omissions which resulted in such loss, claim, liability, expense
or damage, or action in respect thereof, as well as any other
relevant equitable considerations with respect to such offering.
Such relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by the Company or the Representatives on
behalf of the Underwriters, the intent of the parties and their
relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were to be determined
by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, liability, expense or
damage, or action in respect thereof, referred to above in this
Section 6(d) shall be deemed to include, for purpose of this
Section 6(d), any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no Underwriter shall be required
to contribute any amount in excess of the underwriting discounts
received by it, and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this Section 6(d) are
several in proportion to their respective underwriting
obligations and not joint. For purposes of this Section 6(d),
any person who controls a party to this Agreement within the
meaning of the Act will have the same rights to contribution as
that party, and each officer of the Company who signed the
Registration Statement will have the same rights to contribution
as the Company, subject in each case to the provisions hereof.
Any party entitled to contribution, promptly after receipt of
notice of commencement of any action against such party in
respect of which a claim for contribution may be made under this
Section 6(d), will notify any such party or parties from whom
contribution may be sought, but the omission so to notify will
not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have under this
Section 6(d). No party will be liable for contribution with
respect to any action or claim settled without its written
consent (which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements
contained in this Section 6 and the representations and
warranties of the Company contained in this Agreement shall
remain operative and in full force and effect regardless of (i)
any investigation made by or on behalf of the Underwriters, (ii)
acceptance of any of the Securities and payment therefor or (iii)
any termination of this Agreement.
7. Termination. The obligations of the several
Underwriters under this Agreement may be terminated at any time
on or prior to the Closing Date by notice to the Company from the
Representatives, without liability on the part of any Underwriter
to the Company, if, prior to delivery and payment for the
Securities, in the sole judgment of the Representatives, (i)
trading in securities generally on the New York Stock Exchange
shall have been suspended or limited or minimum or maximum prices
shall have been generally established on such exchange, or
additional material governmental restrictions, not in force on
the date of this Agreement, shall have been imposed upon trading
in securities generally by such exchange or by order of the
Commission or any court or other governmental authority, (ii) a
general banking moratorium shall have been declared by either
federal or New York State authorities or (iii) any material
adverse change in the financial or securities markets in the
United States or in political, financial or economic conditions
in the United States or any outbreak or material escalation of
hostilities or declaration by the United States of a national
emergency or war or other calamity or crisis shall have occurred
the effect of any of which is such as to make it, in the sole
judgment of the Representatives, impracticable or inadvisable to
market the Securities on the terms and in the manner contemplated
by the Final Prospectus.
8. Substitution of Underwriters. If any one or more
of the Underwriters shall fail or refuse to purchase any of the
Securities which it or they have agreed to purchase hereunder,
and the aggregate principal amount of Securities which such
defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the aggregate
principal amount of Securities, the other Underwriters shall be
obligated, severally, to purchase the Securities which such
defaulting Underwriter or Underwriters agreed but failed or
refused to purchase, in the proportions which the principal
amount of Securities which they have respectively agreed to
purchase pursuant to Section 1 bears to the aggregate principal
amount of Securities which all such non-defaulting Underwriters
have so agreed to purchase, or in such other proportions as the
Representatives may specify; provided that in no event shall the
maximum principal amount of Securities which any Underwriter has
become obligated to purchase pursuant to Section 1 be increased
pursuant to this Section 8 by more than one-ninth of the
principal amount of Securities agreed to be purchased by such
Underwriter without the prior written consent of such
Underwriter. If any Underwriter or Underwriters shall fail or
refuse to purchase any Securities and the aggregate principal
amount of Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase exceeds
one-tenth of the aggregate principal amount of the Securities and
arrangements satisfactory to the Representatives and the Company
for the purchase of such Securities are not made within 48 hours
after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the
Company for the purchase or sale of any Securities under this
Agreement. In any such case either the Representatives or the
Company shall have the right to postpone the Closing Date, but in
no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Final
Prospectus or in any other documents or arrangements may be
effected. Any action taken pursuant to this Section 8 shall not
relieve any defaulting Underwriter from liability in respect of
any default of such Underwriter under this Agreement.
9. Miscellaneous. Notice given pursuant to any of the
provisions of this Agreement shall be in writing and, unless
otherwise specified, shall be mailed or delivered (a) if to the
Company, at the office of the Company, 100 Century Park Drive,
Monroe, Louisiana 71203, Attention: Harvey P. Perry, Senior Vice
President, General Counsel and Secretary or (b) if to the
Underwriters, to the Representatives at the offices of
______________________________________. Any such notice shall be
effective only upon receipt. Any notice under Section 7 or 8 may
be made by telex or telephone, but if so made shall be
subsequently confirmed in writing.
This Agreement has been and is made solely for the
benefit of the several Underwriters and the Company and of the
controlling persons, directors and officers referred to in
Section 6, and their respective successors and assigns, and no
other person shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" as used in
this Agreement shall not include a purchaser, as such purchaser,
of Securities from any of the several Underwriters.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
This Agreement may be signed in two or more
counterparts with the same effect as if the signatures thereto
and hereto were upon the same instrument.
In case any provision in this Agreement 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.
The Company and the Underwriters each hereby
irrevocably waive any right they may have to trial by jury in
respect of any claim based upon or arising out of this Agreement
or the transactions contemplated hereby.
Please confirm that the foregoing correctly sets forth
the agreement between the Company and the several Underwriters.
Very truly yours,
CENTURY TELEPHONE ENTERPRISES, INC.
By:______________________________
Name:
Title:
Confirmed as of the date first
above mentioned:
[names]
Acting on behalf of themselves
and as the Representatives
of the other several Underwriters
named in Schedule I hereof.
[name]
By:________________________
Name:
Title:
[name]
By:________________________
Name:
Title:
<PAGE>
SCHEDULE I
UNDERWRITERS
Principal Amount
of Securities
Name To Be Purchased
____ _________________
$
____________
Total $
<PAGE>
SCHEDULE II
SUBSIDIARIES
Name
Central Louisiana Telephone Company, Inc.
Evangeline Telephone Company
Century Telephone of Arkansas, Inc.
Mountain Home Telephone Co., Inc.
Century Telephone of Wisconsin, Inc.
Century Telephone Midwest, Inc.
Century Telephone of Michigan, Inc.
Century Cellunet of Southern Michigan, Inc.
Century Cellunet, Inc.
Century Investments, Inc.
Century Telephone of San Marcos, Inc.
Century Telephone of Ohio, Inc.
<PAGE>
EXHIBIT A
CENTURY TELEPHONE ENTERPRISES, INC.
_____________________________
PRICE DETERMINATION AGREEMENT
_____________________________
_________ __, 1994
[name]
As Representatives of
the several Underwriters
[address]
Dear Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated
__________ __,1994 (the "Underwriting Agreement"), among Century
Telephone Enterprises, Inc., a Louisiana corporation (the
"Company") and the several Underwriters named in Schedule I
thereto or hereto (the "Underwriters"), for whom [name] are
acting as representatives (the "Representatives"). The
Underwriting Agreement provides for the purchase by the
Underwriters from the Company, subject to the terms and
conditions set forth therein, of an aggregate of $_____________
principal amount of the Company's ___% Senior Debt Securities due
____ (the "Securities") to be issued pursuant to an Indenture
dated as of March __, 1994 between the Company and First
American Bank & Trust of Louisiana, as Trustee. This Agreement is
the Price Determination Agreement referred to in the Underwriting
Agreement.
Pursuant to Section 1 of the Underwriting Agreement,
the undersigned agree with the Representatives that the purchase
price for the Securities to be paid by each of the several
Underwriters shall be ___% of the aggregate principal amount of
the Securities set forth opposite the name of such Underwriter in
Schedule I attached hereto.
The Company represents and warrants to each of the
Underwriters that the representations and warranties of the
Company set forth in Section 3 of the Underwriting Agreement are
accurate in all material respects as though expressly made at and
as of the date hereof.
As contemplated by the Underwriting Agreement, attached
as Schedule I is a completed list of the several Underwriters,
which shall be a part of this Agreement and the Underwriting
Agreement.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
If the foregoing is in accordance with your
understanding of the agreement among the Underwriters and the
Company, please sign and return to the Company a counterpart
hereof, whereupon this instrument along with all counterparts and
together with the Underwriting Agreement shall be a binding
agreement among the Underwriters and the Company in accordance
with its terms and the terms of the Underwriting Agreement.
Very truly yours,
CENTURY TELEPHONE ENTERPRISES, INC.
By:_____________________________
Name:
Title:
Confirmed as of the date
first above mentioned:
[name]
Acting on behalf of themselves
and as the Representatives
of the other several Underwriters
named in Schedule I hereof.
[name]
By:____________________
Name:
Title:
[name]
By:____________________
Name:
Title:
<PAGE>
EXHIBIT B
Form of Opinion of
Harvey P. Perry, Esq.
1. The Company and each of the Subsidiaries is a
corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation, is duly
licensed or qualified to do business and in good standing as a
foreign corporation in all jurisdictions in which the nature of
the activities conducted by it or the character of the assets
owned or leased by it makes such license or qualification
necessary, except where the failure to be so licensed or
qualified would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
2. The Company and each of the Subsidiaries has full
corporate power and authority to own or lease all the assets
owned or leased by it and, to the best of my knowledge, has all
necessary and material authorizations, approvals, orders,
licenses, certificates, franchises, and permits of and from all
governmental regulatory officials and bodies to own its
properties and to lawfully conduct its business as described in
the Registration Statement and the Final Prospectus.
3. The Company or one of its wholly owned
subsidiaries is the sole record and beneficial owner of all of
the issued common stock of each of the Subsidiaries.
4. The execution, delivery and performance by the
Company of the Underwriting Agreement, the Indenture and the
Securities and the consummation by the Company of the
transactions therein contemplated will not result in the creation
or imposition of any lien, charge or encumbrance upon any of the
assets of the Company or any of the Subsidiaries pursuant to the
terms or provisions of, or, except as disclosed in the
Registration Statement or the Final Prospectus, result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, or give any other party a right to
terminate any of its obligations under, or result in the
acceleration of any obligation under, the articles of
incorporation or by-laws (or comparable instruments) of the
Company or any of the Subsidiaries, or, to the best of my
knowledge, any indenture, mortgage, deed of trust, voting trust
agreement, loan agreement, bond, debenture, note agreement or
other evidence of indebtedness, lease, contract or other
agreement or instrument known to me to which the Company or any
of the Subsidiaries is a party or by which any of the Company or
any of the Subsidiaries or any of their respective properties is
or are bound or affected, or to the best of my knowledge, violate
or conflict with any franchise or any judgment, ruling, decree,
order, statute, rule or regulation of any court or other
governmental agency or body known to me and applicable to the
business or properties of the Company or any of the Subsidiaries.
5. Except as set forth in the Registration Statement
and the Final Prospectus, to the best of my knowledge, there are
no actions, suits or proceedings pending or threatened against
the Company or any of its subsidiaries (as defined in the
Underwriting Agreement) or any of their respective officers, in
their capacity as such, before or by any federal or state court,
commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, which in my opinion is
likely to materially and adversely affect the business,
properties, business prospects, condition (financial or
otherwise) or results of operations of the Company and its
subsidiaries, taken as a whole, as they exist on the date hereof.
I have participated in the preparation of the
Registration Statement and the Final Prospectus. Although I have
not verified and am not opining upon or assuming any
responsibility for the accuracy or completeness of the
information contained in the Registration Statement and the Final
Prospectus, on the basis of my participation in the preparation
of the Registration Statement and the Final Prospectus and my
discussions with certain officers and employees of the Company,
certain of its legal counsel, its independent public accountants
and your representatives and counsel, nothing has come to my
attention which would lead me to believe that, both as of the
Effective Date and as of the date of this opinion, the
Registration Statement, contained or contains any untrue
statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Final
Prospectus or any supplement thereto including any documents
deemed to be incorporated by reference into the Final Prospectus,
at the time the Final Prospectus or any supplement thereto was
first filed with the Commission pursuant to Rule 424(b) and as of
the date of this opinion, contained or contains any untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances in which they were made, not
misleading (except that I express no opinion with respect to
financial statements, schedules and other financial or
statistical data included in the Registration Statement or the
Final Prospectus (or incorporated by reference therein) or the
Statement of Eligibility under the Trust Indenture Act of the
Trustee on Form T-1).
<PAGE>
EXHIBIT C
Form of Opinion of
Counsel to the Company
1. The Company and each of the Subsidiaries is a
corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation.
2. The Securities have been duly and validly
authorized and constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms and are entitled to the benefits provided by the Indenture,
except (i) that the enforcement thereof may be subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws, now or hereafter in effect,
relating to creditors' rights generally and (ii) that the remedy
of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may
be brought.
3. (i) On the Effective Date, the Registration
Statement did and, when the Final Prospectus was filed with the
Commission pursuant to Rule 424(b), the Final Prospectus (and any
supplement thereto), including any documents deemed to be
incorporated by reference into the Final Prospectus, at the time
they were filed, complied in all material respects as to form
with the requirements of the Act, the Rules and Regulations, the
Exchange Act, the Exchange Act Rules and Regulations, the Trust
Indenture Act and the Trust Indenture Act Rules and Regulations
and (ii) the Indenture complies in all material respects as to
form with the Trust Indenture Act and the Trust Indenture Act
Rules and Regulations (except that we express no opinion as to
(a) financial statements, schedules and other financial and
statistical data contained in the Registration Statement or the
Final Prospectus (or incorporated by reference therein) and (b)
the Statement of Eligibility under the Trust Indenture Act of the
Trustee on Form T-1 (the "Form T-1")).
4. The Registration Statement has become effective
under the Act and, to the best of our knowledge, no order
suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been
instituted or is threatened or pending.
5. No consent, approval, authorization or order of,
or filing, registration, qualification or declaration with, any
court or governmental agency or body is required for (i) the
execution, delivery and performance by the Company of the
Underwriting Agreement, the Securities or the Indenture, (ii) the
authorization, offer, issuance, transfer, sale or delivery of the
Securities by the Company or (iii) the consummation by the
Company of the transactions on its part contemplated by the
Underwriting Agreement and the Indenture, except such as may have
been obtained under the Act, the Rules and Regulations, the Trust
Indenture Act or the Trust Indenture Act Rules and Regulations
and such as may be required under foreign or state securities or
Blue Sky laws or the by-laws and rules of the National
Association of Securities Dealers, Inc. in connection with the
purchase and distribution of the Securities by the Underwriters.
6. The description of the Securities in the
Registration Statement and the Final Prospectus is complete and
accurate in all material respects and, insofar as such
description contains statements constituting a summary of the
legal matters or documents referred to therein, such description
fairly summarizes the information referred to therein.
7. The Company has full corporate power and authority
to enter into the Underwriting Agreement and the Indenture. The
Underwriting Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding
agreement of the Company and is enforceable against the Company
in accordance with its terms, except (i) that such enforcement
may be subject to bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws, now or
hereafter in effect, relating to creditors' rights generally,
(ii) that the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any
proceeding therefor may be brought and (iii) rights to indemnity
and contribution hereunder may be limited by federal or state
laws relating to securities or the policies underlying such laws.
The Indenture has been duly authorized by the Company, executed
and delivered by the Company and qualified under the Trust
Indenture Act and constitutes a valid and binding agreement of
the Company and is enforceable against the Company in accordance
with its terms, except (i) that the enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other
similar laws, now or hereafter in effect, relating to creditors'
rights generally and (ii) that the remedy of specific performance
and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
8. The execution, delivery and performance by the
Company of the Underwriting Agreement, the Indenture and the
Securities and the consummation by the Company of the
transactions therein contemplated do not result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, or give any other party a right to terminate any
of its obligations under, or result in the acceleration of any
obligation under, the articles of incorporation or by-laws (or
comparable instruments) of the Company or any of the
Subsidiaries, or, to the best of our knowledge, violate or
conflict with any franchise or any judgment, ruling, decree,
order, statute, rule or regulation of any court or other
governmental agency or body known to us and applicable to the
business or properties of the Company or any of the Subsidiaries,
except where such violation or conflict would not have a material
adverse effect on the Company or any of its subsidiaries.
9. Except as set forth in the Registration Statement
and the Final Prospectus, to the best of our knowledge, there are
no actions, suits or proceedings pending or threatened against
the Company or any of its subsidiaries (as defined in the
Underwriting Agreement) or any of their respective officers in
their capacity as such, before or by any federal or state court,
commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, which in our opinion is
likely to materially and adversely affect the financial condition
or results of operations of the Company and its subsidiaries,
taken as a whole, as they exist on the date hereof.
10. The Company is not an "investment company" or an
"affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
Other than with respect to the opinion expressed in
paragraph 7 above, we have not ourselves verified the accuracy,
completeness or fairness of the information included in the
Registration Statement and the Final Prospectus. We have
generally reviewed and discussed such information with certain
officers and employees of the Company, certain of its legal
counsel, its independent public accountants and your
representatives and counsel. On the basis of such review and
discussion, but without independent verification except as stated
above, nothing has come to our attention that would lead us to
believe that, both as of the Effective Date and as of the date of
this opinion, the Registration Statement contained or contains
any untrue statement of a material fact or omitted or omits to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Final
Prospectus or any supplement thereto including any documents
deemed to be incorporated by reference into the Final Prospectus,
at the time the Final Prospectus or any supplement thereto was
first filed with the Commission pursuant to Rule 424(b) and as of
the date of this opinion, contained or contains any untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances in which they were made, not
misleading (except that we express no opinion with respect to
financial statements, schedules and other financial or
statistical data included in the Registration Statement and the
Final Prospectus (or incorporated by reference therein) or the
Form T-1).
As counsel to the Company we do not as a matter of
course review or pass on all agreements or proceedings to which
the Company or its subsidiaries has become a party nor have we
done so in connection with this opinion. Accordingly, whenever
any statement in this letter is qualified by the phrase "to the
best of our knowledge" or "known to us" or a phrase of similar
import, such phrase is intended to mean the actual knowledge of
information by the lawyers in our firm who have been principally
involved in negotiating the subject transaction and preparing the
pertinent documents, but does not include the information that
might be revealed if there were to be undertaken a canvass of all
lawyers in our firm, a general search of our files, a review of
all of the Company's contacts or any other type of independent
investigation. Any certificate or representation obtained by us
from officers of the Company with respect to such opinions has
been relied upon by us as to factual matters without independent
verification, but nothing has come to our attention that would
lead us to believe that it is unreasonable for us or you to rely
thereon.
In rendering the foregoing opinion, counsel may rely,
to the extent they deem such reliance proper, on the opinions (in
form and substance reasonably satisfactory to Underwriters'
counsel) of other counsel reasonably acceptable to Underwriters'
counsel as to matters governed by the laws of jurisdictions other
than the United States and the State of Louisiana, and as to
matters of fact, upon certificates of officers of the Company and
of government officials; provided that such counsel shall state
that the opinion of any other counsel is in form satisfactory to
such counsel and, in such counsel's opinion, such counsel and the
Representatives are justified in relying on such opinions of
other counsel. Copies of all such opinions and certificates
shall be furnished to counsel to the Underwriters on the Closing
Date.
Exhibit 4.1
to Registration Statement
__________________________________________________________
CENTURY TELEPHONE ENTERPRISES, INC.
AND
FIRST AMERICAN BANK & TRUST OF LOUISIANA
AS TRUSTEE
_____________________
INDENTURE
Dated as of __________________
_____________________
Securities
__________________________________________________________
<PAGE>
CROSS-REFERENCE TABLE
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
310(a).......................................................7.09
310(b).......................................................7.08
7.10
310(c)...............................................Inapplicable
311(a)....................................................7.13(a)
311(b)....................................................7.13(b)
311(c)...............................................Inapplicable
312(a).......................................................5.01
5.02(a)
312(b)....................................................5.02(b)
312(c)....................................................5.02(c)
313(a)....................................................5.04(a)
313(b)....................................................5.04(b)
313(c)....................................................5.04(a)
5.04(b)
313(d)....................................................5.04(c)
314(a)......................................................5.03
314(b)...............................................Inapplicable
314(c)......................................................13.06
314(d)...............................................Inapplicable
314(e)......................................................13.06
314(f)...............................................Inapplicable
315(a)....................................................7.01(a)
7.02
315(b).......................................................6.07
315(c).......................................................7.01
315(d)....................................................7.01(b)
7.01(c)
315(e).......................................................6.08
316(a).......................................................6.06
8.04
316(b).......................................................6.04
316(c).......................................................8.01
317(a).......................................................6.02
317(b).......................................................4.04
318(a)......................................................13.08
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS
SECTION 1.01. Terms Defined.
Affiliate.................................................. 2
Authenticating Agent....................................... 2
Board of Directors......................................... 2
Board Resolution........................................... 2
Business Day............................................... 2
Certificate................................................ 3
Corporate Trust Office..................................... 3
Company.................................................... 3
Default.................................................... 3
Event of Default........................................... 3
Governmental Obligations................................... 3
Indenture.................................................. 4
Interest Payment Date...................................... 4
Officers' Certificate...................................... 4
Opinion of Counsel......................................... 4
Outstanding................................................ 4
Paying Agent............................................... 4
Person..................................................... 4
Predecessor Security....................................... 5
Responsible Officer........................................ 5
Security or Securities..................................... 5
Securityholder............................................. 5
Subsidiary................................................. 5
Trustee.................................................... 5
Trust Indenture Act of 1939, as amended.................... 6
ARTICLE II.
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01............................................... 6
SECTION 2.02............................................... 7
SECTION 2.03............................................... 7
SECTION 2.04............................................... 9
SECTION 2.05............................................... 10
SECTION 2.06............................................... 12
SECTION 2.07............................................... 12
SECTION 2.08............................................... 13
SECTION 2.09............................................... 13
SECTION 2.10............................................... 14
SECTION 2.11............................................... 14
SECTION 2.12............................................... 14
ARTICLE III.
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01............................................... 15
SECTION 3.02............................................... 15
SECTION 3.03............................................... 16
SECTION 3.04............................................... 17
SECTION 3.05............................................... 17
SECTION 3.06............................................... 17
ARTICLE IV.
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01............................................... 18
SECTION 4.02............................................... 18
SECTION 4.03............................................... 18
SECTION 4.04............................................... 20
SECTION 4.05............................................... 20
SECTION 4.06............................................... 21
ARTICLE V.
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01............................................... 22
SECTION 5.02............................................... 22
SECTION 5.03............................................... 24
SECTION 5.04............................................... 25
ARTICLE VI.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01............................................... 26
SECTION 6.02............................................... 29
SECTION 6.03............................................... 31
SECTION 6.04............................................... 31
SECTION 6.05............................................... 32
SECTION 6.06............................................... 32
SECTION 6.07............................................... 33
SECTION 6.08............................................... 34
ARTICLE VII.
CONCERNING THE TRUSTEE
SECTION 7.01............................................... 34
SECTION 7.02............................................... 36
SECTION 7.03............................................... 37
SECTION 7.04............................................... 37
SECTION 7.05............................................... 37
SECTION 7.06............................................... 38
SECTION 7.07............................................... 38
SECTION 7.08............................................... 38
SECTION 7.09............................................... 39
SECTION 7.10............................................... 39
SECTION 7.11............................................... 40
SECTION 7.12............................................... 42
SECTION 7.13............................................... 42
ARTICLE VIII.
CONCERNING THE SECURITYHOLDERS
SECTION 8.01............................................... 46
SECTION 8.02............................................... 47
SECTION 8.03............................................... 47
SECTION 8.04............................................... 48
SECTION 8.05............................................... 48
ARTICLE IX.
SUPPLEMENTAL INDENTURES
SECTION 9.01............................................... 49
SECTION 9.02............................................... 50
SECTION 9.03............................................... 51
SECTION 9.04............................................... 51
SECTION 9.05............................................... 51
ARTICLE X.
CONSOLIDATION, MERGER AND SALE
SECTION 10.01.............................................. 51
SECTION 10.02.............................................. 52
SECTION 10.03.............................................. 53
ARTICLE XI.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 11.01.............................................. 53
SECTION 11.02.............................................. 54
SECTION 11.03.............................................. 54
SECTION 11.04.............................................. 54
SECTION 11.05.............................................. 55
ARTICLE XII.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01.............................................. 55
ARTICLE XIII.
SUNDRY PROVISIONS
SECTION 13.01.............................................. 56
SECTION 13.02.............................................. 56
SECTION 13.03.............................................. 56
SECTION 13.04.............................................. 56
SECTION 13.05.............................................. 56
SECTION 13.06.............................................. 56
SECTION 13.07.............................................. 57
SECTION 13.08.............................................. 57
SECTION 13.09.............................................. 57
SECTION 13.10.............................................. 57
<PAGE>
THIS INDENTURE, dated as of the _____ day of
_____________, 1994, between CENTURY TELEPHONE ENTERPRISES, INC.,
a corporation duly organized and existing under the laws of the
State of Louisiana (hereinafter sometimes referred to as the
"Company"), and FIRST AMERICAN BANK & TRUST OF LOUISIANA, a
Louisiana banking corporation, as trustee (hereinafter sometimes
referred to as the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company
has duly authorized the execution and delivery of this Indenture
to provide for the issuance of unsecured securities, debentures,
notes or other evidences of indebtedness (hereinafter referred to
as the "Securities"), in an unlimited aggregate principal amount
to be issued from time to time in one or more series as in this
Indenture provided as registered Securities without coupons, to
be authenticated by the certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which
the Securities are to be authenticated, issued and delivered, the
Company has duly authorized the execution of this Indenture;
WHEREAS, the Securities and the certificate of
authentication to be borne by the Securities (the "Certificate of
Authentication") are to be substantially in such forms as may be
approved by the Board of Directors (as defined below) or set
forth in any indenture supplemental to this Indenture;
AND WHEREAS, all acts and things necessary to make the
Securities issued pursuant hereto, when executed by the Company
and authenticated and delivered by the Trustee as in this
Indenture provided, the valid, binding and legal obligations of
the Company, and to constitute these presents a valid indenture
and agreement according to its terms, have been done and
performed or will be done and performed prior to the issuance of
such Securities, and the execution of this Indenture and the
issuance hereunder of the Securities have been or will be prior
to issuance in all respects duly authorized, and the Company, in
the exercise of the legal right and power in it vested, executes
this Indenture and proposes to make, execute, issue and deliver
the Securities;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon
which the Securities are and are to be authenticated, issued and
delivered, and in consideration of the premises, of the purchase
and acceptance of the Securities by the holders thereof and of
the sum of one dollar ($1.00) to it duly paid by the Trustee at
the execution of these presents, the receipt whereof is hereby
acknowledged, the Company covenants and agrees with the Trustee,
for the equal and proportionate benefit (subject to the
provisions of this Indenture) of the respective holders from time
to time of the Securities, without any discrimination, preference
or priority of any one Security over any other by reason of
priority in the time of issue, sale or negotiation thereof, or
otherwise, except as provided herein, as follows:
ARTICLE 1.
DEFINITIONS
SECTION 01. The terms defined in this Section (except
as in this Indenture otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture,
any resolution of the Board of Directors of the Company and of
any indenture supplemental hereto shall have the respective
meanings specified in this Section. All other terms used in this
Indenture which are defined in the Trust Indenture Act of 1939,
as amended, or which are by reference in such Act defined in the
Securities Act of 1933, as amended (except as herein otherwise
expressly provided or unless the context otherwise requires),
shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date
of the execution of this instrument.
"Affiliate" means any person directly or indirectly
controlling or controlled by or under direct or indirect common
control with the Company. For the purposes of this definition,
"control" when used with respect to any specified Person means
the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means an authenticating agent
with respect to all or any of the series of Securities, as the
case may be, appointed with respect to all or any series of the
Securities, as the case may be, by the Trustee pursuant to
Section 2.10.
"Board of Directors" shall mean the Board of Directors
of the Company, or a properly empowered Executive or Special
Committee of such Board.
"Board Resolution" shall mean a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification.
"Business Day", with respect to any series of
securities, shall mean any day other than a day on which banking
institutions in the City of Monroe, State of Louisiana or the
Borough of Manhattan, the City and State of New York, as the case
may be (depending on whether an office or agency of the Company
is being maintained in either such city with respect to any such
series), are authorized or obligated by law or executive order to
close.
"Certificate" shall mean a certificate signed by the
principal executive officer, the principal financial officer, the
treasurer or the principal accounting officer of the Company.
The Certificate need not comply with the provisions of Section
13.06(a) unless the context shall so require.
"Corporate Trust Office" shall mean the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the
date of the execution of this Indenture is located at First
American Bank & Trust of Louisiana, 1807 Tower Drive, P.O. Box
7232, Monroe, Louisiana 71201.
"Company" shall mean Century Telephone Enterprises,
Inc., a corporation duly organized and existing under the laws of
the State of Louisiana, and, subject to the provisions of Article
Ten, shall also include its successors and assigns.
"Default" shall mean any event, act or condition which
with notice or lapse of time, or both, would constitute an Event
of Default.
"Event of Default" with respect to Securities of a
particular series shall mean any event specified in Section 6.01,
continued for the period of time, if any, therein designated.
"Governmental Obligations" shall mean securities that
are (i) direct obligations of the United States of America for
the payment of which its full faith and credit is pledged or (ii)
obligations of a person controlled or supervised by and acting as
an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in
either case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities
Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or
interest on any such Governmental Obligation held by such
custodian for the account of the holder of such depository
receipt; provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received
by the custodian in respect of the Governmental Obligation or the
specific payment of principal of or interest on the Governmental
Obligation evidenced by such depository receipt.
"Indenture" shall mean this instrument as originally
executed, or, if amended or supplemented as herein provided, as
so amended or supplemented.
"Interest Payment Date" when used with respect to any
installment of interest on a Security of a particular series
shall mean the date specified in such Security or in a Board
Resolution or in an indenture supplemental hereto with respect to
such series as the fixed date on which an installment of interest
with respect to Securities of that series is due and payable.
"Officers' Certificate" shall mean a certificate signed
by the President or the Chief Financial Officer and by the
Treasurer or an Assistant Treasurer or the Controller or an
Assistant Controller or the Secretary or an Assistant Secretary
of the Company. Each such certificate shall include the
statements provided for in Section 13.06, if and to the extent
required by the provisions thereof.
"Opinion of Counsel" shall mean an opinion in writing
signed by legal counsel, who shall be satisfactory to the Trustee
and who may be an employee of or counsel for the Company. Each
such opinion shall include the statements provided for in Section
13.06, if and to the extent required by the provisions thereof.
"Outstanding", when used with reference to Securities
of any series, shall, subject to the provisions of Section 8.04,
mean, as of any particular time, all Securities of that series
theretofore authenticated and delivered by the Trustee under this
Indenture, except (a) Securities theretofore canceled by the
Trustee or any paying agent, or delivered to the Trustee or any
paying agent for cancellation or which have previously been
canceled; (b) Securities or portions thereof for the payment or
redemption of which moneys or Governmental Obligations in the
necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or
shall have been set aside and segregated in trust by the Company
(if the Company shall act as its own paying agent); provided,
however, that if such Securities or portions of such Securities
are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as in Article Three provided, or
provision satisfactory to the Trustee shall have been made for
giving such notice; and (c) Securities in lieu of or in
substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of Section
2.07.
"Paying Agent" means any Person, including the Company
or the Trustee, authorized by the Company to pay the principal
of, and premium, if any, or interest, if any, on any Securities
on behalf of the Company.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability company,
limited liability partnership or unincorporated organization or
any government or any political subdivision, instrumentality or
agency thereof.
"Predecessor Security" of any particular Security shall
mean every previous Security evidencing all or a portion of the
same debt as that evidenced by such particular Security; and, for
the purposes of this definition, any Security authenticated and
delivered under Section 2.07 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"Responsible Officer" when used with respect to the
Trustee shall mean any corporate trust officer or any assistant
corporate trust officer or any other officer or assistant officer
of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the
particular subject.
"Security" or "Securities" shall mean any Security or
Securities, as the case may be, authenticated and delivered under
this Indenture.
"Securityholder", "holder of Securities", "registered
holder", or other similar term, shall mean the person or persons
in whose name or names a particular Security shall be registered
on the books of the Company kept for that purpose in accordance
with the terms of this Indenture.
"Subsidiary" shall mean (a) any corporation at least a
majority of whose outstanding voting stock shall at the time be
owned by the Company or by one or more Subsidiaries or by the
Company and one or more Subsidiaries and (b) the partnerships,
joint ventures and any other entities of which the Company is the
managing general partner or otherwise effectively controls such
entity. For the purposes only of the definition of the term
"Subsidiary", the term "voting stock", as applied to the stock of
any corporation, shall mean stock of any class or classes having
ordinary voting power for the election of a majority of the
directors of such corporation, other than stock having such power
only by reason of the occurrence of a contingency.
"Trustee" shall mean First American Bank & Trust of
Louisiana, and, subject to the provisions of Article Seven, shall
also include its successors and assigns, and, if at any time
there is more than one person acting in such capacity hereunder,
"Trustee" shall mean each such person. The term "Trustee" as
used with respect to a particular series of the Securities shall
mean the trustee with respect to that series.
"Trust Indenture Act of 1939, as amended," subject to
the provisions of Sections 9.01, 9.02, and 10.01, shall mean the
Trust Indenture Act of 1939, as amended and in effect at the date
of execution of this Indenture.
ARTICLE 2.
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01. The aggregate principal amount of
Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series up
to the aggregate principal amount of Securities of that series
from time to time authorized by or pursuant to a Board Resolution
or pursuant to one or more indentures supplemental hereto, prior
to the initial issuance of Securities of a particular series.
Prior to the initial issuance of Securities of any series, there
shall be established in or pursuant to a Board Resolution or
established in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all
other Securities);
(2) any limit upon the aggregate principal amount of
the Securities of that series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
that series as provided in Section 2.07 and Section 2.08);
(3) the date or dates on which the principal of the
Securities of the series is payable;
(4) the rate or rates at which the Securities of the
series shall bear interest or the manner of calculation of
such rate or rates, if any, the date or dates from which
such interest shall accrue, the interest payment dates on
which such interest shall be payable or the manner of
determination of such interest payment dates;
(5) the period or periods within which, the price or
prices at which and the terms and conditions upon which,
Securities of the series may be redeemed, in whole or in
part, at the option of the Company;
(6) the obligation, if any, of the Company to redeem
or purchase Securities of the series pursuant to any sinking
fund or analogous provisions (including payments made in
cash in anticipation of future sinking fund obligations) or
at the option of a holder thereof and the period or periods
within which, the price or prices at which, and the terms
and conditions upon which, Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(7) the form of the Securities of the series including
the form of the Certificate of Authentication for such
series;
(8) if other than denominations of $1,000 or any
integral multiple thereof, the denominations in which the
Securities of the series shall be issuable; and
(9) any and all other terms with respect to such
series (which terms shall not be inconsistent with the terms
of this Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise
be provided in or pursuant to any such Board Resolution or in any
indentures supplemental hereto.
If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy thereof shall
be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 2.02. The Securities of any series and the
Trustee's Certificate of Authentication to be borne by such
Securities shall be substantially of the tenor and purport as set
forth in one or more indentures supplemental hereto or as
provided in a Board Resolution, and may have such letters,
numbers, CUSIP numbers or other marks of identification or
designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which Securities of
that series may be listed, or to conform to usage.
SECTION 2.03. The Securities shall be issuable as
registered Securities and in the denominations of $1,000 or any
multiple thereof, subject to Section 2.01(8). The Securities of
a particular series shall bear interest payable on the dates and
at the rate specified with respect to that series. The principal
of and the interest on the Securities of any series, as well as
any premium thereon in case of redemption thereof prior to
maturity, shall be payable in the coin or currency of the United
States of America which at the time is legal tender for public
and private debt, at the office or agency of the Company
maintained for that purpose in either the City of Monroe, State
of Louisiana or the Borough of Manhattan, the City and State of
New York, or, at the option of the Company, by check in United States
of America dollars mailed or delivered to the person whose name
such Security is registered. Each Security shall be dated the date
of its authentication. Interest on the Securities shall be computed
on the basis of a 360-day year composed of twelve 30-day months;
provided that interest on Securities bearing interest at a floating
rate shall be computed on the basis of a year of 365 or 366 days, as
appropriate, for the actual number of days elapsed.
The interest installment on any Security which is
payable, and is punctually paid or duly provided for, on any
interest payment date for Securities of that series shall be paid
to the person in whose name said Security (or one or more
predecessor Securities) is registered at the close of business on
the regular record date for such interest installment. In the
event that any Security of a particular series or portion thereof
is called for redemption and the redemption date is subsequent to
a regular record date with respect to any interest payment date
and prior to such interest payment date, interest on such
Security will be paid upon presentation and surrender of such
Security as provided in Section 3.03.
Any interest on any Security which is payable, but is
not punctually paid or duly provided for, on any interest payment
date for Securities of the same series (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered
holder on the relevant regular record date by virtue of having
been such holder; and such Defaulted Interest shall be paid by
the Company, at its election, as provided in clause (1) or clause
(2) below:
(1) The Company may make payment of any Defaulted
Interest on Securities to the persons in whose names such
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 Company shall notify the
Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of
the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in
trust for the benefit of the persons entitled to such
Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a special record date for the payment
of such Defaulted Interest which shall not be more than 15
or 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 Company of such special record
date and, in the name and at the expense of the Company,
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 Securityholder at his
or her address as it appears in the Security Register (as
hereinafter defined), 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 such Securities
(or their respective Predecessor Securities) are registered
on the close of business on such special record date and
shall be no longer payable pursuant to the following clause
(2).
(2) The Company may make payment of any Defaulted
Interest on any Securities in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon
such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
The term "regular record date" as used in this Section
with respect to a series of Securities with respect to any
interest payment date for such series shall mean either the
fifteenth day of the month immediately preceding the month in
which an interest payment date established for such series
pursuant to Section 2.01 hereof shall occur, if such interest
payment date is the first day of a month, or the last day of the
month immediately preceding the month in which an interest
payment date established for such series pursuant to Section 2.01
hereof shall occur, if such interest payment date is the
fifteenth day of a month, whether or not such date is a Business
Day.
Subject to the foregoing provisions of this Section,
each Security of a series delivered under this Indenture upon
transfer of or in exchange for or in lieu of any other Security
of such series shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 2.04. The Securities shall, subject to the
provisions of Section 2.06, be printed on steel engraved borders
or fully or partially engraved, or legibly typed, as the proper
officers of the Company may determine, and shall be signed on
behalf of the Company by its President or one of its Vice
Presidents, under its corporate seal attested by its Secretary or
one of its Assistant Secretaries. The signature of the President
or a Vice President and/or the signature of the Secretary or an
Assistant Secretary in attestation of the corporate seal, upon
the Securities, may be in the form of a facsimile signature of a
present or any future President or Vice President and of a
present or any future Secretary or Assistant Secretary and may be
imprinted or otherwise reproduced on the Securities and for that
purpose the Company may use the facsimile signature of any person
who shall have been a President or Vice President, or of any
person who shall have been a Secretary or Assistant Secretary,
notwithstanding the fact that at the time the Securities shall be
authenticated and delivered or disposed of such person shall have
ceased to be the President or a Vice President, or the Secretary
or an Assistant Secretary, of the Company, as the case may be.
The seal of the Company may be in the form of a facsimile of the
seal of the Company and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities.
Only such Securities of a series as shall bear thereon
a certificate of authentication substantially in the form
established for such series, executed manually by an authorized
signatory of the Trustee, or by any Authenticating Agent
appointed by the Trustee with respect to such series, shall be
entitled to the benefits of this Indenture or be valid or
obligatory for any purpose. Such certificate executed by the
Trustee, or by any Authenticating Agent appointed by the Trustee
with respect to such series, upon any Security of such series
executed by the Company shall be conclusive evidence that the
Security so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the
benefits of this Indenture.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee
for authentication, together with a written order of the Company
for the authentication and delivery of such Securities, signed by
its President or any Vice President and its Treasurer or any
Assistant Treasurer, and the Trustee in accordance with such
written order shall authenticate and deliver such Securities.
In authenticating Securities of any series and
accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 7.01) shall be fully protected
in relying upon, an Opinion of Counsel stating that the form and
terms thereof have been established in conformity with the
provisions of this Indenture and that such Securities, when
authenticated and delivered by the Trustee, will be duly
authorized, executed and delivered and will constitute the legal,
valid and binding obligations of the Company, enforceable against
it in accordance with their terms.
The Trustee shall not be required to authenticate any
Securities of a series if the issue of such Securities pursuant
to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
SECTION 2.05. (a) Securities of any series may be
exchanged upon presentation thereof at the office or agency of
the Company designated for such purpose in either the City of
Monroe, State of Louisiana, or the Borough of Manhattan, the City
and State of New York, for other Securities of such series of
authorized denominations, and for a like aggregate principal
amount, upon payment of a sum sufficient to cover any tax or
other governmental charge in relation thereto, all as provided in
this Section. In respect of any Securities so surrendered for
exchange, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in exchange
therefor the Security or Securities of the same series which the
Securityholder making the exchange shall be entitled to receive,
bearing numbers not contemporaneously outstanding.
(b) The Trustee is hereby appointed as the registrar
(the "Security Registrar") for the purpose of registering
securities and the transfer of securities as herein provided.
The Company shall cause to be kept at the office or agency
designated for such purpose in either the City of Monroe, State
of Louisiana, or the Borough of Manhattan, the City and State of
New York, or such other location designated by the Company a
register or registers (herein referred to as the "Security
Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall register the Securities and the
transfers of Securities as in this Article provided.
Upon surrender for transfer of any Security at the
office or agency of the Company designated for such purpose in
either the City of Monroe, State of Louisiana, or the Borough of
Manhattan, the City and State of New York, the Company shall
execute, the Trustee shall authenticate and such office or agency
shall deliver in the name of the transferee or transferees a new
Security or Securities of the same series as the Security
presented for a like aggregate principal amount.
All Securities presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be
accompanied (if so required by the Company or the Security
Registrar) by a written instrument or instruments of transfer, in
form satisfactory to the Company or the Security Registrar, duly
executed by the registered holder or by his duly authorized
attorney in writing.
(c) No service charge shall be made for any exchange
or registration of transfer of Securities, or issue of new
Securities in case of partial redemption of any series, but the
Company may require payment of a sum sufficient to cover any tax
or other governmental charge in relation thereto, other than
exchanges pursuant to Section 2.06, the second paragraph of
Section 3.03 and Section 9.04 not involving any transfer.
(d) The Company shall not be required (a) to issue,
exchange or register the transfer of any Securities during a
period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of less than all the
Outstanding Securities of the same series and ending at the close
of business on the day of such mailing, nor (b) to register the
transfer of or exchange any Securities of any series or portions
thereof called for redemption.
SECTION 2.06. Pending the preparation of definitive
Securities of any series, the Company may execute, and the
Trustee shall authenticate and deliver, temporary Securities
(printed, lithographed or typewritten) of any authorized
denomination, and substantially in the form of the definitive
Securities in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for
temporary Securities, all as may be determined by the Company.
Every temporary Security of any series shall be executed by the
Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like
effect, as the definitive Securities of such series. Without
unnecessary delay the Company will execute and will furnish
definitive Securities of such series and thereupon any or all
temporary Securities of such series may be surrendered in
exchange therefor (without charge to the holders), at the office
or agency of the Company designated for the purpose in either the
City of Monroe, State of Louisiana, or the Borough of Manhattan,
the City and State of New York, and the Trustee shall
authenticate and such office or agency shall deliver in exchange
for such temporary Securities an equal aggregate principal amount
of definitive Securities of such series. Until so exchanged, the
temporary Securities of such series shall be entitled to the same
benefits under this Indenture as definitive Securities of such
series authenticated and delivered hereunder.
SECTION 2.07. In case any temporary or definitive
Security shall become mutilated or be destroyed, lost or stolen,
the Company (subject to the next succeeding sentence) shall
execute, and upon its request the Trustee (subject as aforesaid)
shall authenticate and deliver, a new Security of the same series
bearing a number not contemporaneously outstanding, in exchange
and substitution for the mutilated Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen. In
every case the applicant for a substituted Security shall furnish
to the Company and to the Trustee such security or indemnity as
may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall
also furnish to the Company and to the Trustee evidence to their
satisfaction of the destruction, loss or theft of the applicant's
Security and of the ownership thereof. The Trustee may
authenticate any such substituted Security and deliver the same
upon the written request or authorization of any officer of the
Company. Upon the issue of any substituted Security, the Company
may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the
Trustee) connected therewith. In case any Security which has
matured or is about to mature shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a
substitute Security, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the
Company and to the Trustee such security or indemnity as they may
require to save them harmless, and, in case of destruction, loss
or theft, evidence to the satisfaction of the Company and the
Trustee of the destruction, loss or theft of such Security and of
the ownership thereof.
Every Security issued pursuant to the provisions of
this Section in substitution for any Security which is mutilated,
destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Security shall be found at
any time, or be enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately
with any and all other Securities of the same series duly issued
hereunder. All Securities shall be held and owned upon the
express condition that the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities, and shall preclude (to the
extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted
to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their
surrender.
SECTION 2.08. All Securities surrendered for the
purpose of payment, redemption, exchange or registration of
transfer shall, if surrendered to the Company or any paying
agent, be delivered to the Trustee for cancellation, or, if
surrendered to the Trustee, shall be canceled by it, and no
Securities shall be issued in lieu thereof except as expressly
required or permitted by any of the provisions of this Indenture.
On request of the Company, the Trustee shall deliver to the
Company canceled Securities held by the Trustee. In the absence
of such request the Trustee may destroy canceled Securities in
accordance with its standard procedures and deliver a certificate
of destruction to the Company. If the Company shall otherwise
acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.09. Nothing in this Indenture or in the
Securities, express or implied, shall give or be construed to
give to any person, firm or corporation, other than the parties
hereto and the holders of the Securities, any legal or equitable
right, remedy or claim under or in respect of this Indenture, or
under any covenant, condition or provision herein contained; all
such covenants, conditions and provisions being for the sole
benefit of the parties hereto and of the holders of the
Securities.
SECTION 2.10. So long as any of the Securities of any
series remain Outstanding there may be an Authenticating Agent
for any or all such series of Securities which the Trustee shall
have the right to appoint. Said Authenticating Agent shall be
authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, transfer or
partial redemption thereof, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the
Trustee hereunder. All references in this Indenture to the
authentication of Securities by the Trustee shall be deemed to
include authentication by an Authenticating Agent for such series
except for authentication upon original issuance or pursuant to
Section 2.07 hereof. Each Authenticating Agent shall be
acceptable to the Company and shall be a corporation which has a
combined capital and surplus, as most recently reported or
determined by it, sufficient under the laws of any jurisdiction
under which it is organized or in which it is doing business to
conduct a trust business, and which is otherwise authorized under
such laws to conduct such business and is subject to supervision
or examination by Federal or State authorities. If at any time
any Authenticating Agent shall cease to be eligible in accordance
with these provisions, it shall resign immediately. All fees and
expenses of the Authenticating Agent shall be paid by the
Company.
Any Authenticating Agent may at any time resign by
giving written notice of resignation to the Trustee and to the
Company. The Trustee may at any time (and upon request by the
Company shall) terminate the agency of any Authenticating Agent
by giving written notice of termination to such Authenticating
Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee
may appoint an eligible successor Authenticating Agent acceptable
to the Company. Any successor Authenticating Agent, upon
acceptance of its appointment hereunder, shall become vested with
all the rights, powers and duties of its predecessor hereunder as
if originally named as an Authenticating Agent pursuant hereto.
SECTION 2.11. The Company in issuing Securities of any
series shall use a "CUSIP" number and the Trustee shall use the
CUSIP number in notices of redemption or exchange as a
convenience to the holders of the Securities of such series;
provided, that any such notice may state that no representation
is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Securities of such series, and
that reliance may be placed only on the other identification
numbers printed on the Securities of such series.
SECTION 2.12. Prior to due presentment of a Security
for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose
name such Security is registered as the owner of such Security
for the purpose of receiving payments of principal of (and
premium, if any), and (subject to Section 2.03) interest on such
Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee, shall be affected by
notice to the contrary.
ARTICLE 3.
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01. The Company may redeem the Securities of
any series issued hereunder on and after the dates and in
accordance with the terms established for such series pursuant to
Section 2.01 hereof.
SECTION 3.02. (a) In case the Company shall desire to
exercise such right to redeem all or, as the case may be, a
portion of the Securities of any series in accordance with the
right reserved so to do, the Company shall give notice of such
redemption to holders of the Securities of such series to be
redeemed and to the Trustee by mailing, first class postage
prepaid, a notice of such redemption not less than 30 days and
not more than 60 days before the date fixed for redemption of
that series to such holders at their last addresses as they shall
appear upon the Security Register. Any notice which is mailed in
the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the registered holder receives
the notice. In any case, failure duly to give such notice to the
holder of any Security of any series designated for redemption in
whole or in part, or any defect in the notice, shall not affect
the validity of the proceedings for the redemption of any other
Securities of such series or any other series. In the case of
any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing
compliance with any such restriction.
Each such notice of redemption shall specify the date
fixed for redemption and the redemption price at which Securities
of that series are to be redeemed, and shall state that payment
of the redemption price of such Securities to be redeemed will be
made at the office or agency of the Company in either the City of
Monroe, State of Louisiana, or the Borough of Manhattan, the City
and State of New York, or, at the option of the Company, by check in
United States of America dollars mailed or delivered to the person
whose name such Security is registered, or upon presentation and
surrender of such Securities, that interest accrued to the date
fixed for redemption will be paid as specified in said notice,
that from and after said date interest will cease to accrue and
that the redemption is for a sinking fund, if such is the case.
If less than all the Securities of a series are to be redeemed,
the notice to the holders of Securities of that series to be
redeemed in whole or in part shall specify the particular Securities
to be so redeemed. In case any Security is to be redeemed in part
only, the notice which relates to such Security shall state the
portion of the principal amount thereof to be redeemed, and shall
state that on and after the redemption date, upon surrender of such
Security, a new Security or Securities of such series in principal
amount equal to the unredeemed portion thereof will be issued.
(b) If less than all the Securities of a series are to
be redeemed, the Company shall give the Trustee at least 45 days'
notice in advance of the date fixed for redemption as to the
aggregate principal amount of Securities of the series to be
redeemed, and thereupon the Trustee shall select, by lot or in
such other manner as it shall deem appropriate and fair in its
discretion and which may provide for the selection of a portion
or portions (equal to $1,000 or any multiple thereof) of the
principal amount of such Securities of a denomination larger than
$1,000, the Securities to be redeemed and shall thereafter
promptly notify the Company in writing of the numbers of the
Securities to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by
delivery of instructions signed on its behalf by its President or
any Vice President, instruct the Trustee or any paying agent to
call all or any part of the Securities of a particular series for
redemption and to give notice of redemption in the manner set
forth in this Section, such notice to be in the name of the
Company or its own name as the Trustee or such paying agent may
deem advisable. In any case in which notice of redemption is to
be given by any such paying agent, the Company shall deliver or
cause to be delivered to, or permit to remain with, such paying
agent, as the case may be, such Security Registrar, transfer
books or other records, or suitable copies or extracts therefrom,
sufficient to enable the paying agent to give any notice by mail
that may be required under the provisions of this Section.
SECTION 3.03. (a) If the giving of notice of
redemption shall have been completed as above provided, the
Securities or portions of Securities of the series to be redeemed
specified in such notice shall become due and payable on the date
and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date
fixed for redemption and interest on such Securities or portions
of Securities shall cease to accrue on and after the date fixed
for redemption, unless the Company shall default in the payment
of such redemption price and accrued interest with respect to any
such Security or portion thereof. On presentation and surrender
of such Securities on or after the date fixed for redemption at
the place of payment specified in the notice, said Securities
shall be paid and redeemed at the applicable redemption price for
such series, together with interest accrued thereon to the date
fixed for redemption (but if the date fixed for redemption is an
interest payment date, the interest installment payable on such
date shall be payable to the registered holder at the close of
business on the applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Security of such series
which is to be redeemed in part only, the Company shall execute
and the Trustee shall authenticate and the office or agency where
the Security is presented shall deliver to the holder thereof, at
the expense of the Company, a new Security or Securities of the
same series, of authorized denominations in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 3.04. The provisions of Sections 3.04, 3.05
and 3.06 shall be applicable to any sinking fund for the
retirement of Securities of a series, except as otherwise
specified as contemplated by Section 2.01 for Securities of such
series.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series is herein referred
to as a "mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms of
Securities of any series is herein referred to as an "optional
sinking fund payment". If a sinking fund is provided for by the
terms of Securities of any series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section
3.05. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 3.05. The Company (1) may deliver Outstanding
Securities of a series (other than any previously called for
redemption) and (2) may apply as a credit Securities of a series
which have been redeemed either at the election of the Company or
the holders pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments
pursuant to the terms of the Securities of such series, in each
case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to
be made pursuant to the terms of such Securities as provided for
by the terms of such series; provided that such Securities have
not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the
redemption price specified in such Securities for redemption
through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
SECTION 3.06. Not less than 45 days prior to each
sinking fund payment date for any series of Securities, the
Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 3.05 and
the basis for such credit and will also deliver to the Trustee
any Securities to be so delivered. Not less than 30 days before
each such sinking fund payment date, the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 3.02 and cause notice of the
redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 3.02. Such
notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Section
3.03.
ARTICLE 4.
PARTICULAR COVENANTS OF THE COMPANY
The Company covenants and agrees for each series of the
Securities as follows:
SECTION 4.01. The Company will duly and punctually pay
or cause to be paid the principal of (and premium, if any) and
interest on the Securities of that series at the time and place
and in the manner provided herein and established with respect to
such Securities.
SECTION 4.02. So long as any series of the Securities
remain Outstanding, the Company agrees to maintain an office or
agency in either the City of Monroe, State of Louisiana, or the
Borough of Manhattan, the City and State of New York, with
respect to each such series and at such other location or
locations as may be designated as provided in this Section 4.02,
where (i) Securities of that series may be presented for payment,
(ii) Securities of that series may be presented as hereinabove
authorized for registration of transfer and exchange, and (iii)
notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be given or
served. As to such office or agency in either the City of
Monroe, State of Louisiana, or the Borough of Manhattan, the City
and State of New York, the Company shall designate the required
office or agency to be located in either the City of Monroe,
State of Louisiana, or the Borough of Manhattan, the City and
State of New York, for each series of Securities, such
designation to continue with respect to such office or agency
until the Company shall, by written notice signed by its
President or a Vice President and delivered to the Trustee,
designate some other office or agency for such purposes or any of
them. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, notices and demands
may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, notices and demands.
SECTION 4.03. (a) If the Company shall appoint one or
more paying agents for all or any series of the Securities, other
than the Trustee, the Company will cause each such paying agent
to execute and deliver to the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of
this Section,
(1) that it will hold all sums held by it as such
agent for the payment of the principal of (and premium,
if any) or interest on the Securities of that series
(whether such sums have been paid to it by the Company
or by any other obligor on such Securities) in trust
for the benefit of the persons entitled thereto;
(2) that it will give the Trustee notice of any
failure by the Company (or by any other obligor on such
Securities) to make any payment of the principal of
(and premium, if any) or interest on the Securities of
that series when the same shall be due and payable;
(3) that it will, at any time during the continuance
of any failure referred to in the preceding paragraph (a)(2)
above, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such paying
agent; and
(4) that it will perform all other duties of paying
agent as set forth in this Indenture.
(b) If the Company shall act as its own paying agent
with respect to any series of the Securities, it will on or
before each due date of the principal of (and premium, if any) or
interest on Securities of that series, set aside, segregate and
hold in trust for the benefit of the persons entitled thereto a
sum sufficient to pay such principal (and premium, if any) or
interest so becoming due on Securities of that series until such
sums shall be paid to such persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of such
action, or any failure (by it or any other obligor on such
Securities) to take such action. Whenever the Company shall have
one or more paying agents for any series of Securities, it will,
prior to each due date of the principal of (and premium, if any)
or interest on any Securities of that series, deposit with a
paying agent a sum sufficient to pay the principal (and premium,
if any) or interest so becoming due, such sum to be held in trust
for the benefit of the persons entitled to such principal,
premium or interest, and (unless such paying agent is the
Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
(c) Anything in this Section to the contrary
notwithstanding, (i) the agreement to hold sums in trust as
provided in this Section is subject to the provisions of Section
11.05, and (ii) the Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or direct any paying agent to pay, to the
Trustee all sums held in trust by the Company or such paying
agent, such sums to be held by the Trustee upon the same terms as
those upon which sums were held by the Company or such paying
agent; and, upon such payment by any paying agent to the Trustee,
such paying agent shall be released from all further liability
with respect to such money.
SECTION 4.04. The Company, whenever necessary to avoid
or fill a vacancy in the office of Trustee, will appoint, in the
manner provided in Section 7.10, a Trustee, so that there shall
at all times be a Trustee hereunder.
SECTION 4.05. The Company will not, while any of the
Securities remain Outstanding, create, or suffer to be created or
to exist, any mortgage, lien, pledge, security interest or other
encumbrance of any kind upon any property of any character of the
Company whether now owned or hereafter acquired or upon any of
the income or profits therefrom unless it shall make effective
provision whereby the Securities then Outstanding shall be
secured by such mortgage, lien, pledge, security interest or
other encumbrance equally and ratably with any and all
obligations and indebtedness thereby secured so long as any such
obligations and indebtedness shall be so secured; provided,
however, that nothing in this Section shall be construed to
prevent the Company from creating, or from suffering to be
created or to exist, any mortgages, liens, pledges, security
interests or other encumbrances, or any agreements, with respect
to:
(1) Purchase money mortgages, or other purchase
money liens, pledges or encumbrances of any kind upon
property hereafter acquired by the Company, or
mortgages, liens, pledges, security interests or other
encumbrances of any kind existing on such property at
the time of the acquisition thereof, or conditional
sales agreements or other title retention agreements
with respect to any property hereafter acquired;
provided, however, that no such mortgage, lien, pledge,
security interest or other encumbrance, and no such
agreement, shall extend to or cover any other property
of the Company;
(2) Liens, pledges, security interests, mortgages or
other encumbrances of any kind on the shares of stock of a
corporation which, when such liens, pledges, security
interests, mortgages or other encumbrances arise,
concurrently becomes a Subsidiary or liens, pledges,
security interests, mortgages or other encumbrances on all
or substantially all of the assets of a corporation arising
in connection with the purchase or acquisition thereof by
the Company, provided that such lien or other security
interest shall not attach to any other assets of the
Company;
(3) Liens for taxes, assessments, governmental
charges or levies; pledges or deposits to secure
obligations under worker's compensation or unemployment
insurance laws or similar legislation; pledges or
deposits to secure performance in connection with bids,
tenders, contracts, performance bonds and other similar
arrangements (other than contracts for the payment of
money) or leases to which the Company is a party;
deposits to secure public or statutory obligations of
the Company; materialmen's, mechanics', carriers',
workers', repairmen's or other like liens in the
ordinary course of business, or deposits to obtain the
release of such liens; deposits to secure surety and
appeal bonds to which the Company is a party, other
pledges or deposits for similar purposes in the
ordinary course of business; liens created by or
resulting from any litigation or legal proceeding which
at the time is currently being contested in good faith
by appropriate proceedings; leases made, or existing on
property acquired, in the ordinary course of business;
landlord's liens under leases to which the Company is a
party; zoning restrictions, easements, licenses,
restrictions on the use of real property or minor
irregularities in title thereto, which do not
materially impair the use of such property in the
operation of the business of the Company or the value
of such property for the purpose of such business; the
lien of the trustee under any indenture (including this
Indenture), liens encumbering property or assets under
construction arising from progress or partial payments;
liens arising from the filing of UCC financing
statements regarding leases or consignments; any
interest or title of a lessor in the property subject
to any capitalized lease or operating lease; liens
arising out of consignment or similar arrangements
entered into in the ordinary course of business; and
liens existing on the date of this Indenture;
(4) Indebtedness assumed by the Company of the
character specified in the first proviso of Section
4.06 hereof; or
(5) The replacement, extension or renewal of any
mortgage, lien, pledge, security interest or other
encumbrance, or of any agreement, permitted by the
foregoing clauses (1), (2), (3), (4), or the
replacement, extension or renewal (without increase) of
the indebtedness secured thereby.
SECTION 4.06. The Company will not, while any of the
Securities remain Outstanding, consolidate with, or merge into,
or merge into itself, or sell or convey all or substantially all
of its property to, any other Company unless the provisions of
Article Ten hereof are complied with.
If upon any such consolidation or merger, or sale or
conveyance, any of the property of the Company owned by the
Company prior thereto would thereupon become subject to any
mortgage, security interest, pledge or lien, the Company prior to
such consolidation, merger, sale or conveyance will secure the
Outstanding Securities, or cause the same to be secured, equally
and ratably with the other indebtedness or obligations secured by
such mortgage, security interest, pledge or lien so long as such
other indebtedness or obligations shall be so secured; provided,
however, that the subjection of the property of the Company to
any mortgage, security interest, pledge or lien securing
indebtedness of an Affiliate which is required to be assumed by
the Company in connection with any merger or consolidation of
such Affiliate shall be deemed excluded from the operation of
this Section and shall not require that any of the Securities be
secured; and provided, further, that the subjection of property
of the Company to any mortgage, security interest, pledge or lien
of the character referred to in clauses (1), (2), (3), (4) and
(5) of Section 4.05 shall be deemed excluded from the operation
of this Section and shall not require that any of the Securities
be secured.
ARTICLE 5.
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01. The Company will furnish or cause to be
furnished to the Trustee (a) semi-annually, not more than 15 days
after each regular record date (as defined in Section 2.03) a
list, in such form as the Trustee may reasonably require, of the
names and addresses of the holders of each series of Securities
as of such regular record date and (b) at such other times as the
Trustee may request in writing, within 30 days after the receipt
by the Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such
list is furnished; provided, however, no such list need be
furnished for any series for which the Trustee shall be the
Security Registrar.
SECTION 5.02. (a) The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as
to the names and addresses of the holders of Securities contained
in the most recent list furnished to it as provided in Section
5.01 and as to the names and addresses of holders of Securities
received by the Trustee in its capacity as Security Registrar (if
acting in such capacity).
(b) The Trustee may destroy any list furnished to it
as provided in Section 5.01 upon receipt of a new list so
furnished.
(c) In case three or more holders of Securities of a
series (hereinafter referred to as "applicants") apply in writing
to the Trustee, and furnish to the Trustee reasonable proof that
each such applicant has owned a Security for a period of at least
six months preceding the date of such application, and such
application states that the applicant's desire to communicate
with other holders of Securities of such series or holders of all
Securities with respect to their rights under this Indenture or
under such Securities, and is accompanied by a copy of the form
of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five business days after
the receipt of such application, at its election, either
(1) afford to such applicants access to the
information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of
this Section, or
(2) inform such applicants as to the approximate
number of holders of Securities of such series or of
all Securities, as the case may be, whose names and
addresses appear in the information preserved at the
time by the Trustee, in accordance with the provisions
of subsection (a) of this Section, and as to the
approximate cost of mailing to such Securityholders the
form of proxy or other communication, if any, specified
in such application.
(d) If the Trustee shall elect not to afford such
applicants access to such information, the Trustee shall, upon
the written request of such applicants, mail to each holder of
such series or of all Securities, as the case may be, whose name
and address appears in the information preserved at the time by
the Trustee in accordance with the provisions of subsection (a)
of this Section, a copy of the form of proxy or other
communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file
with the Securities and Exchange Commission, together with a copy
of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be
contrary to the best interests of the holders of Securities of
such series or of all Securities, as the case may be, or would be
in violation of applicable law. Such written statement shall
specify the basis of such opinion. If said Commission, after
opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to
sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, said Commission shall
find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all
such Securityholders with reasonable promptness after the entry
of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(e) Each and every holder of the Securities, by
receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any paying
agent nor any Security Registrar shall be held accountable by
reason of the disclosure of any such information as to the names
and addresses of the holders of Securities in accordance with the
provisions of subsection (b) of this Section, regardless of the
source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under said subsection (b).
SECTION 5.03. (a) The Company covenants and agrees to
file with the Trustee, within 15 days after the Company is
required to file the same with the Securities and Exchange
Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of
the foregoing as said Commission may from time to time by rules
and regulations prescribe) which the Company may be required to
file with said Commission pursuant to Section 13, Section 14 or
Section 15(d) of the Securities Exchange Act of 1934, as amended;
or, if the Company is not required to file information, documents
or reports pursuant to any of such sections, then to file with
the Trustee and said Commission, in accordance with the rules and
regulations prescribed from time to time by said Commission, such
of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended, in respect of a
security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and
regulations.
(b) The Company covenants and agrees to file with
Trustee and the Securities and Exchange Commission, in accordance
with the rules and regulations prescribed from time to time by
said Commission, such additional information, documents and
reports with respect to compliance by the Company with the
conditions and covenants provided for in this Indenture as may be
required from time to time by such rules and regulations.
(c) The Company covenants and agrees to, or cause the
Trustee to, transmit by mail, first class postage prepaid, or
reputable over-night delivery service which provides for evidence
of receipt, to the Securityholders, as their names and addresses
appear upon the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the
Company pursuant to subsections (a) and (b) of this Section as
may be required by rules and regulations prescribed from time to
time by the Securities and Exchange Commission.
(d) The Company covenants and agrees to furnish to the
Trustee within 135 days of each fiscal year in which any of the
Securities are Outstanding, or on or before such other day in
each calendar year as the Company and the Trustee may from time
to time agree upon, a certificate from the principal executive
officer, principal financial officer or principal accounting
officer as to his or her knowledge of the Company's compliance
with all conditions and covenants under this Indenture. For
purposes of this subsection (d), such compliance shall be
determined without regard to any period of grace or requirement
of notice provided under this Indenture.
SECTION 5.04. (a) On or before July 15 in each year
in which any Securities are Outstanding hereunder, the Trustee
shall transmit by mail, first class postage prepaid, to the
Securityholders, as their names and addresses appear upon the
Security Register, a brief report dated as of the preceding May
15, with respect to any of the following events which may have
occurred within the previous twelve months (but if no such event
has occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 7.09,
and its qualifications under Section 7.08;
(2) the creation of or any material change to a
relationship specified in paragraphs (1) through (10) of
subsection (c) of Section 310(b) of the Trust Indenture Act;
(3) the character and amount of any advances (and if
the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as
such) which remain unpaid on the date of such report, and
for the reimbursement of which it claims or may claim a lien
or charge, prior to that of the Securities, on any property
or funds held or collected by it as Trustee if such advances
so remaining unpaid aggregate more than 1/2 of 1% of the
principal amount of the Securities outstanding on the date
of such report;
(4) any change to the amount, interest rate, and
maturity date of all other indebtedness owing by the
Company, or by any other obligor on the Securities, to the
Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as
collateral security therefor, except any indebtedness based
upon a creditor relationship arising in any manner described
in paragraphs (2), (3), (4), or (6) of subsection (b) of
Section 7.13;
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the
date of such report;
(6) any release, or release and substitution, of
property subject to the lien of this Indenture (and the
consideration thereof, if any) which it has not previously
reported;
(7) any additional issue of Securities which the
Trustee has not previously reported; and
(8) any action taken by the Trustee in the performance
of its duties under this Indenture which it has not
previously reported and which in its opinion materially
affects the Securities or the Securities of any series,
except any action in respect of a default, notice of which
has been or is to be withheld by it in accordance with the
provisions of Section 6.07.
(b) The Trustee shall transmit by mail, first class
postage prepaid, to the Securityholders, as their names and
addresses appear upon the Security Register, a brief report with
respect to the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee as such since the date of the
last report transmitted pursuant to the provisions of subsection
(a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this Indenture), for
the reimbursement of which it claims or may claim a lien or
charge prior to that of the Securities of any series on property
or funds held or collected by it as Trustee, and which it has not
previously reported pursuant to this subsection if such advances
remaining unpaid at any time aggregate more than 10% of the
principal amount of Securities of such series Outstanding at such
time, such report to be transmitted within 90 days after such
time.
(c) A copy of each such report shall, at the time of
such transmission to Securityholders, be filed by the Trustee
with the Company, with each stock exchange upon which any
Securities are listed (if so listed) and also with the Securities
and Exchange Commission. The Company agrees to notify the
Trustee when any Securities become listed on any stock exchange.
ARTICLE 6.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. (a) Whenever used herein with respect
to Securities of a particular series, "Event of Default" means
any one or more of the following events which has occurred and is
continuing:
(1) default in the payment of any installment of
interest upon any of the Securities of such series, as and
when the same shall become due and payable,and continuance
of such default for a period of 30 Business Days;
(2) default in the payment of the principal of (or
premium, if any, on) any of the Securities of such series as
and when the same shall become due and payable, whether at
maturity, upon redemption, by declaration or otherwise, or
in any payment required by any sinking or analogous fund
established with respect to that series; provided, however,
that notwithstanding the foregoing, the Company's failure to
pay, if caused solely by a wire transfer malfunction or
similar problem outside the Company's control, shall not be
deemed an Event of Default;
(3) failure on the part of the Company duly to observe
or perform any other of the covenants or agreements on the
part of the Company with respect to that series contained in
such Securities or otherwise established with respect to
that series of Securities pursuant to section 2.01 hereof or
contained in this Indenture (other than a covenant or
agreement which has been expressly included in this
Indenture solely for the benefit of one or more series of
Securities other than such series) for a period of 60 days
after the date on which written notice of such failure,
requiring the same to be remedied and stating that such
notice is a "Notice of Default" hereunder, shall have been
given to the Company by the Trustee, by registered or
certified mail, or to the Company and the Trustee by the
holders of at least 25% in principal amount of the
Securities of that series at the time outstanding;
(4) a decree or order by a court having jurisdiction
in the premises shall have been entered adjudging the
Company a bankrupt or insolvent, or approving as properly
filed a petition seeking liquidation or reorganization of
the Company under the Federal Bankruptcy Code or any other
similar applicable Federal or State law, and such decree or
order shall have continued unvacated and unstayed for a
period of 90 days; or an involuntary case shall be commenced
under such Code in respect of the Company and shall continue
undismissed for a period of 90 days or an order for relief
in such case shall have been entered; or a decree or order
of a court having jurisdiction in the premises shall have
been entered for the appointment on the ground of insolvency
or bankruptcy of a receiver or custodian or liquidator or
trustee or assignee in bankruptcy or insolvency of the
Company of its property, or for the winding up or
liquidation of its affairs and such decree or order shall
have remained in force unvacated and unstayed for a period
of 90 days;
(5) the Company shall institute proceedings to be
adjudicated a voluntary bankrupt, or shall consent to the
filing of a bankruptcy proceeding against it, or shall file
a petition or answer or consent seeking liquidation or
reorganization under the Federal Bankruptcy Code or any
other similar applicable Federal or State law, or shall
consent to the filing of any such petition, or shall consent
to the appointment on the ground of insolvency or bankruptcy
of a receiver or custodian or liquidator or trustee or
assignee in bankruptcy or insolvency of it or of its
property, or shall make an assignment for the benefit of
creditors; or
(6) any other Event of Default provided in the
supplemental indenture or Board Resolution under which such
series of Securities is issued or in the form of Security
for such series.
(b) In each and every such case, unless the principal
of all the Securities of that series 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 of that
series then Outstanding hereunder, by notice in writing to the
Company (and to the Trustee if given by such Securityholders),
may declare the principal of all the Securities of that series to
be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable,
anything contained in this Indenture or in the Securities of that
series or established with respect to that series pursuant to
Section 2.01 hereof to the contrary notwithstanding.
(c) The provisions of Section 6.01(b), however, are
subject to the condition that if, at any time after the principal
of the Securities of that series shall have been so declared due
and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee
a sum sufficient to pay all matured installments of interest upon
all the Securities of that series and the principal of (and
premium, if any, on) any and all Securities of that series which
shall have become due otherwise than by acceleration (with
interest upon such principal and premium, if any, and, to the
extent that such payment is enforceable under applicable law,
upon overdue installments of interest, at the rate per annum
expressed in the Securities of that series to the date of such
payment or deposit) and the amount payable to the Trustee under
Section 7.06, and any and all Defaults under the Indenture, other
than the nonpayment of principal on Securities of that series
which shall not have become due by their terms, shall have been
remedied or waived as provided in Section 6.06 then and in every
such case the holders of a majority in aggregate principal amount
of the Securities of that series then Outstanding, determined in
accordance with Section 8.04, by written notice to the Company
and to the Trustee, may rescind and annul such declaration and
its consequences; but no such rescission and annulment shall
extend to or shall affect any subsequent default, or shall impair
any right consequent thereon.
(d) In case the Trustee shall have proceeded to
enforce any right with respect to Securities of that series under
this Indenture and such proceedings shall have been discontinued
or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the
Trustee, then and in every such case the Company and the Trustee
shall be restored respectively to their former positions and
rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such
proceedings had been taken.
SECTION 6.02. (a) The Company covenants that (1) in
case default shall be made in the payment of any installment of
interest on any of the Securities of a series, or any payment
required by any sinking or analogous fund established with
respect to that series as and when the same shall become due and
payable, and such default shall have continued for a period of 30
Business Days, or (2) in case default shall be made in the
payment of the principal of (or premium, if any, on) any of the
Securities of a series when the same shall have become due and
payable, whether upon maturity of the Securities of a series or
upon redemption or upon declaration or otherwise -- then, upon
demand of the Trustee, the Company will pay to the Trustee, for
the benefit of the holders of the Securities of that series, the
whole amount that then shall have become due and payable on all
Securities of such series for principal (and premium, if any) or
interest, or both, as the case may be, with interest upon the
overdue principal (and premium, if any) and (to the extent that
payment of such interest is enforceable under applicable law)
upon overdue installments of interest at the rate per annum
expressed in the Securities of that series; and, in addition,
thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, and the amount payable to the
Trustee under Section 7.06.
(b) In the case the Company shall fail forthwith to
pay such amounts upon such demand, the Trustee, in its own name
and as trustee of an express trust, shall be entitled and
empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against
the Company or other obligor upon the Securities of that series
and collect in the manner provided by law out of the property of
the Company or other obligor upon the Securities of that series
wherever situated the moneys adjudged or decreed to be payable.
(c) In case of any receivership, insolvency,
liquidation, bankruptcy, reorganization, readjustment,
arrangement, composition or other judicial proceedings affecting
the Company, any other obligor on such Securities, or the
creditors or property of either, the Trustee shall have power to
intervene in such proceedings and take any action therein that
may be permitted by the court and shall (except as may be
otherwise provided by law) be entitled to file such proofs of
claim and other papers and documents as may be necessary or
advisable in order to have the claims of the Trustee and of the
holders of Securities of such series allowed for the entire
amount due and payable by the Company or such other obligor under
the Indenture at the date of institution of such proceedings and
for any additional amount which may become due and payable by the
Company or such other obligor after such date, and to collect and
receive any moneys or other property payable or deliverable on
any such claim, and to distribute the same after the deduction of
the amount payable to the Trustee under Section 7.06; and any
receiver, assignee or trustee in bankruptcy or reorganization is
hereby authorized by each of the holders of Securities of such
series to make such payments to the Trustee, and, in the event
that the Trustee shall consent to the making of such payments
directly to such Securityholders, to pay to the Trustee any
amount due it under Section 7.06.
(d) All rights of action and of asserting claims under
this Indenture, or under any of the terms established with
respect to Securities of that series, may be enforced by the
Trustee without the possession of any such Securities, or the
production thereof at any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for
payment to the Trustee of any amounts due under Section 7.06, be
for the ratable benefit of the holders of the Securities of such
series.
In case of an Event of Default hereunder the Trustee
may in its discretion proceed to protect and enforce the rights
vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect
and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in the Indenture or in aid of
the exercise of any power granted in this Indenture, or to
enforce any other legal or equitable right vested in the Trustee
by this Indenture or by law.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
of that series or the rights of any holder thereof or to
authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.
SECTION 6.03. Any moneys collected by the Trustee
pursuant to Section 6.02 with respect to a particular series of
Securities shall be applied in the order following, at the date
or dates fixed by the Trustee and, in case of the distribution of
such moneys on account of principal (or premium, if any) or
interest, upon presentation of the several Securities of that
series, and stamping thereon the payment, if only partially paid,
and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection
and of all amounts payable to the Trustee under Section
7.06;
SECOND: To the payment of the amounts then due and unpaid
upon Securities of such series for principal (and premium,
if any) and interest, in respect of which or for the benefit
of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts
due and payable on such Securities for principal (and
premium, if any) and interest, respectively; and
THIRD: To the payment of any surplus then remaining to the
Company, or its successors and assigns, or to whomsoever may
be lawfully entitled thereto.
SECTION 6.04. No holder of any Security of any series
shall have any right by virtue or by availing of any provision of
this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless such holder previously shall have given
to the Trustee written notice of an Event of Default and of the
continuance thereof with respect to Securities of such series
specifying such Event of Default, as hereinbefore provided, and
unless also the holders of not less than 25% in aggregate
principal amount of the Securities of such series then
Outstanding, determined in accordance with Section 8.04, shall
have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as trustee hereunder
and shall have offered to the Trustee such reasonable indemnity
as it may require against the costs, expenses and liabilities to
be incurred therein or thereby, and the Trustee for 60 days after
its receipt of such notice, request and offer of indemnity, shall
have failed to institute any such action, suit or proceeding and
the Trustee shall not have received any direction inconsistent
with such written notice during such 60-day period by the holders
of not less than a majority in aggregate principal amount of the
Securities of such series then Outstanding; it being understood
and intended, and being expressly covenanted by the taker and
holder of every Security of such series with every other such
taker and holder and the Trustee, that no one or more holders of
Securities of such series shall have any right in any manner
whatsoever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of the
holders of any other of such Securities, or to obtain or seek to
obtain priority over or preference to any other such holder, or
to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of
all holders of Securities of such series. For the protection and
enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief
as can be given either at law or in equity.
Notwithstanding any other provisions of this Indenture,
however, the right of any holder of any Security to receive
payment of the principal of (and premium, if any) and interest on
such Security, as therein provided, on or after the respective
due dates expressed in such Security (or in the case of
redemption, on the redemption date), or to institute suit for the
enforcement of any such payment on or after such respective dates
or redemption date, shall not be impaired or affected without the
consent of such holder.
SECTION 6.05. (a) All powers and remedies given by
this Article to the Trustee or to the Securityholders shall, to
the extent permitted by law, be deemed cumulative and not
exclusive of any others thereof or of any other powers and
remedies available to the Trustee or the holders of the
Securities, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements
contained in this Indenture or otherwise established with respect
to such Securities.
(b) No delay or omission of the Trustee or of any
holder of any of the Securities to exercise any right or power
accruing upon any Event of Default occurring and continuing as
aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article or by law to the Trustee
or to the Securityholders may be exercised from time to time, and
as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 6.06. The holders of a majority in aggregate
principal amount of the Securities of any series at the time
Outstanding, determined in accordance with Section 8.04, shall
have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with
respect to such series; provided, however, that such direction
shall not be in conflict with any rule of law or with this
Indenture, as determined by the Trustee, or unduly prejudicial to
the rights of holders of Securities of any other series at the
time Outstanding, determined in accordance with Section 8.04, not
parties thereto. Subject to the provisions of Section 7.01, the
Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a responsible
officer or officers of the Trustee, determine that the proceeding
so directed would involve the Trustee in personal liability. The
holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding, determined in
accordance with Section 8.04, may on behalf of the holders of all
of the Securities of that series waive any past default in the
performance of any of the covenants contained herein or
established pursuant to Section 2.01 with respect to such series
and its consequences, except a default in the payment of the
principal of, or premium, if any, or interest on, any of the
Securities of that series as and when the same shall become due
by the terms of such Securities or a call for redemption of
Securities of that series. Upon any such waiver, the default
covered thereby shall be deemed to be cured and to cease to exist
for all purposes of this Indenture and the Company, the Trustee
and the holders of the Securities of that series shall be
restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
SECTION 6.07. The Trustee shall, within 90 days after
the occurrence of a default with respect to a particular series,
transmit by mail, first class postage prepaid, to the holders of
Securities of that series, as their names and addresses appear
upon the Security Register, notice of all defaults with respect
to that series known to the Trustee, unless such defaults shall
have been cured before the giving of such notice (the term
"defaults" for the purposes of this Section being hereby defined
to be the events specified in subsections (1), (2), (3), (4), (5)
and (6) of Section 6.01(a), not including any periods of grace
provided for therein and irrespective of the giving of notice
provided for by subsection (3) of Section 6.01(a)); provided,
that, except in the case of default in the payment of the
principal of (or premium, if any) or interest on any of the
Securities of that series or in the payment of any sinking fund
installment established with respect to that series, the Trustee
shall be protected in withholding such notice if and so long as
the board of directors, the executive committee, or a trust
committee of directors and/or responsible officers, of the
Trustee in good faith determine that the withholding of such
notice is in the interests of the Securityholders of Securities
of that series; provided further, that in the case of any default
of the character specified in Section 6.01(a)(3) with respect to
Securities of such series no such notice to the holders of the
Securities of that series shall be given until at least 30 days
after the occurrence thereof.
The Trustee shall not be deemed to have knowledge of
any default, except (i) a default under subsections (a)(1) or
(a)(2) of Section 6.01 as long as the Trustee is acting as paying
agent for such series of Securities or (ii) any default as to
which the Trustee shall have received written notice or a
Responsible Officer charged with the administration of this
Indenture shall have obtained actual knowledge.
SECTION 6.08. All parties to this Indenture agree, and
each holder of any Securities by his or her 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 or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section
shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal
amount of the Outstanding Securities of any series, or to any
suit instituted by any Securityholder for the enforcement of the
payment of the principal of (or premium, if any) or interest on
any Security of such series, on or after the respective due dates
expressed in such Security or established pursuant to this
Indenture.
ARTICLE 7.
CONCERNING THE TRUSTEE
SECTION 7.01. (a) The Trustee, prior to the
occurrence of an Event of Default with respect to Securities of a
series and after the curing of all Events of Default with respect
to Securities of that series which may have occurred, shall
undertake to perform with respect to Securities of such series
such duties and only such duties as are specifically set forth in
this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In case an Event of Default with
respect to Securities of a series has occurred (which has not
been cured or waived), the Trustee shall exercise with respect to
Securities of that series such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person's own
affairs.
(b) No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct, except that
(1) prior to the occurrence of an Event of Default
with respect to Securities of a series and after the curing
or waiving of all such Events of Default with respect to
that series which may have occurred:
(i) the duties and obligations of the Trustee
shall with respect to Securities of such series be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable with
respect to Securities of such series except for the
performance of such duties and obligations as are
specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into
this Indenture against that Trustee; and
(ii) in the absence of bad faith on the part of
the Trustee, the Trustee may with respect to Securities
of such series conclusively rely, as to the truth of
the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to
the requirements of this Indenture;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
responsible officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith
in accordance with the direction of the holders of not less
than a majority in principal amount of the Securities of any
series at the time Outstanding relating to the time, method
and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture with respect
to the Securities of that series; and
(4) None of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any
of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or liability is
not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not
reasonably assured to it.
SECTION 7.02. Except as otherwise provided in
Section 7.01:
(a) The Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, security or other paper
or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) Any request, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced by a
Board Resolution or an instrument signed in the name of the
Company by the President or the Chief Financial Officer and by
the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer (unless other evidence in respect thereof is
specifically prescribed herein);
(c) The Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any
action taken or suffered or omitted hereunder in good faith and
in reliance thereon;
(d) The Trustee shall 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
Securityholders, pursuant to the provisions of this Indenture,
unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred herein or thereby; nothing
herein contained shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default with
respect to a series of the Securities (which has not been cured
or waived) to exercise with respect to Securities of that series
such of the rights and powers vested in it by this Indenture, and
to use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the
conduct of his own affairs;
(e) The Trustee shall not be liable for any action
taken or omitted to be taken by it in good faith and believed by
it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, security, or other
papers or documents, unless requested in writing so to do by the
holders of not less than a majority in principal amount of the
Outstanding Securities of the particular series affected thereby
(determined as provided in Section 8.04); provided, however, that
if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to
it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such costs, expenses or liabilities
as a condition to so proceeding. The reasonable expense of every
such examination shall be paid by the Company or, if paid by the
Trustee, shall be repaid by the Company upon demand; and
(g) The Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION 7.03. (a) The recitals contained herein and
in the Securities (other than the Certificate of Authentication
on the Securities) shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for the
correctness of the same.
(b) The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the use
by the Company of any of the Securities or the use or application
by the Company of the proceeds of such Securities, or for the use
or application of any moneys paid over by the Trustee in
accordance with any provision of this Indenture or established
pursuant to Section 2.01, or for the use or application of any
moneys received by any paying agent other than the Trustee.
SECTION 7.04. The Trustee or any paying agent or
Security Registrar, in its individual or any other capacity, may
become the owner or pledgee of Securities with the same rights it
would have if it were not Trustee, paying agent or Security
Registrar.
SECTION 7.05. Subject to the provisions of Section
11.05, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be
under no liability for interest on any moneys received by it
hereunder except such as it may agree with the Company to pay
thereon.
SECTION 7.06. (a) The Company covenants and agrees to
pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation (which shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust) for all services rendered by it in
the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the
Trustee, and the Company will pay or reimburse the Trustee upon
its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any
of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel
(including in-house counsel) and of all persons not regularly in
its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Company also
covenants to indemnify the Trustee (and its officers, agents,
directors and employees) for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad
faith on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any
claim of liability in the premises.
(b) The obligations of the Company under this Section
to compensate and indemnify the Trustee and to pay or reimburse
the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder. Such additional
indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of
the holders of particular Securities.
SECTION 7.07. Except as otherwise provided in Section
7.01, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or
omitting to take any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed)
may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by
an Officers' Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any
action taken, suffered or omitted to be taken by it under the
provisions of this Indenture upon the faith thereof.
SECTION 7.08. The Trustee shall be disqualified only
where such disqualification is required by Section 310(b) of the
Trust Indenture Act.
SECTION 7.09. There shall at all times be a Trustee
with respect to the Securities issued hereunder which shall at
all times be a corporation organized and doing business under the
laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or other
person permitted to act as trustee by the Securities and Exchange
Commission, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least
$10 million, and subject to supervision or examination by
Federal, State, Territorial, or District of Columbia authority.
If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. The
Company may not, nor may any person directly or indirectly
controlling, controlled by, or under common control with the
Company, serve as Trustee. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and
with the effect specified in Section 7.10.
SECTION 7.10. (a) The Trustee or any successor
hereafter appointed, may at any time resign with respect to the
Securities of one or more series by giving written notice thereof
to the Company and by transmitting notice of resignation by mail,
first class postage prepaid, to the Securityholders of such
series, as their names and addresses appear upon the Security
Register. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee with respect to
Securities of such series by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30
days after the mailing of such notice of resignation, the
resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee with
respect to Securities of such series, or any Securityholder of
that series who has been a bona fide holder of a Security or
Securities for at least six months may, subject to the provisions
of Section 6.08, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon after such notice,
if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall
occur--
the Trustee shall fail to comply with the
provisions of subsection (a) of Section 310 of the Trust
Indenture Act after written request therefor by the Company
or by any Securityholder who has been a bona fide holder of
a Security or Securities for at least six months, or
the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.09 and shall
fail to resign after written request therefor by the Company
or by any such Securityholder of Securities, or
the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of
the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee with
respect to all Securities and appoint a successor trustee by
written instrument, in duplicate, executed by order of the Board
of Directors, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 7.08, unless the Trustee's
duty to resign is stayed as provided herein, any Securityholder
who has been a bona fide holder of a Security or Securities for
at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint
a successor trustee.
(c) The holders of a majority in aggregate principal
amount of the Securities of any series at the time Outstanding
may at any time remove the Trustee with respect to such series
and appoint a successor trustee.
(d) Any resignation or removal of the Trustee and
appointment of a successor trustee with respect to the Securities
of a series pursuant to any of the provisions of this Section
shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this
Section may be appointed with respect to the Securities of one or
more series or all of such series, and at any time there shall be
only one Trustee with respect to the Securities of any particular
series.
SECTION 7.11. (a) In case of the appointment
hereunder of a successor trustee with respect to all Securities,
every such successor trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become
effective and such successor trustee, without any further act,
deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver
an instrument transferring to such successor trustee all the
rights, powers, and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a
successor trustee with respect to the Securities of one or more
(but not all) series, the Company, the retiring Trustee and each
successor trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto
wherein each successor trustee shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each
successor trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor trustee
relates, (2) shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees co-
trustees of the same trust, that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such
Trustee and that no Trustee shall be responsible for any act or
failure to act on the part of any other Trustee hereunder; and
upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee
shall with respect to the Securities of that or those series to
which the appointment of such successor trustee relates have no
further responsibility for the exercise of rights and powers or
for the performance of the duties and obligations vested in the
Trustee under this Indenture, and each such successor trustee,
without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to
which the appointment of such successor trustee relates; but, on
request of the Company or any successor trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor
trustee, to the extent contemplated by such supplemental
indenture, the property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series
to which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee, the
Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor trustee all
such rights, powers and trusts referred to in paragraph (a) or
(b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment
unless at the time of such acceptance such successor trustee
shall be qualified and eligible under this Article.
(e) Upon acceptance of appointment by a successor
trustee as provided in this Section, the Company shall transmit
notice of the succession of such trustee hereunder by mail, first
class postage prepaid, to the Securityholders, as their names and
addresses appear upon the Security Register. If the Company
fails to transmit such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall
cause such notice to be transmitted at the expense of the
Company.
SECTION 7.12. Any corporation into which the Trustee
may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be qualified under the provisions
of Section 7.08 and eligible under the provisions of Section
7.09, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as
if such successor Trustee had itself authenticated such
securities.
SECTION 7.13. (a) Subject to the provisions of
subsection (b) of this Section, if the Trustee shall be or shall
become a creditor, directly or indirectly, secured or unsecured,
of the Company within three months prior to a default, as defined
in subsection (c) of this Section, or subsequent to such a
default, then, unless and until such default shall be cured, the
Trustee shall set apart and hold in a special account for the
benefit of the Trustee individually, the holders of the
Securities and the holders of other indenture securities (as
defined in subsection (c) of this Section)
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in
respect of principal or interest, effected after the
beginning of such three months' period and valid as against
the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this subsection, or
from the exercise of any right of set-off which the Trustee
could have exercised if a petition in bankruptcy had been
filed by or against the Company upon the date of such
default; and
(2) all property received by the Trustee in respect of
any claim as such creditor, either as security therefor, or
in satisfaction or composition thereof, or otherwise, after
the beginning of such three months' period, or an amount
equal to the proceeds of any such property, if disposed of,
subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the
right of the Trustee
(A) to retain for its own account (i) payments made on
account of any such claim by any person (other than the
Company) who is liable thereon, and (ii) the proceeds of the
bona fide sale of any such claim by the Trustee to a third
person, and (iii) distributions made in cash, securities, or
other property in respect of claims filed against the
Company in bankruptcy or receivership or in a case for
reorganization pursuant to the Federal Bankruptcy Code or
applicable State law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property
was so held prior to the beginning of such three months'
period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property
held by it as security for any such claim, if such claim was
created after the beginning of such three months' period and
such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee
shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause
to believe that a default, as defined in subsection (c) of
this Section, would occur within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property
held as security for such claim as provided in such
paragraph (B) or (C), as the case may be, to the extent of
the fair value of such property.
For the purposes of paragraphs (B), (C) and (D),
property substituted after the beginning of such three months'
period for property held as security at the time of such
substitution shall, to the extent of the fair value of the
property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such
paragraphs is created in renewal of or in substitution for or for
the purpose of repaying or refunding any pre-existing claim of
the Trustee as such creditor, such claim shall have the same
status as such pre-existing claim.
If the Trustee shall be required to account, the funds
and property held in such special account and the proceeds
thereof shall be apportioned between the Trustee, the
Securityholders and the holders of other indenture securities in
such manner that the Trustee, the Securityholders and the holders
of other indenture securities realize, as a result of payments
from such special account and payments of dividends on claims
filed against the Company in bankruptcy or receivership or in a
case for reorganization pursuant to the Federal Bankruptcy Code
or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the
funds and property in such special account and before crediting
to the respective claims of the Trustee, the Securityholders and
the holders of other indenture securities dividends on claims
filed against the Company in bankruptcy or receivership or in a
case for reorganization pursuant to the Federal Bankruptcy Code
or applicable State law, but after crediting thereon receipts on
account of the indebtedness represented by their respective
claims from all sources other than from such dividends and from
the funds and property so held in such special account. As used
in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such
claim in bankruptcy or receivership or in a case for
reorganization pursuant to the Federal Bankruptcy Code or
applicable State law, whether such distribution is made in cash,
securities, or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such
claim. The court in which such bankruptcy, receivership or case
for reorganization is pending shall have jurisdiction (i) to
apportion between the Trustee, the Securityholders and the
holders of other indenture securities, in accordance with the
provisions of this paragraph, the funds and property held in such
special account and the proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of
this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee, the Securityholders
and the holders of other indenture securities with respect to
their respective claims, in which event it shall not be necessary
to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such
claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or
otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee who has resigned or been removed after the
beginning of such three months' period shall be subject to the
provisions of this subsection (a) as though such resignation or
removal had not occurred. If any Trustee has resigned or been
removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this subsection (a) if and
only if the following conditions exist:
(i) the receipt of property or reduction of
claim which would have given rise to the obligation to
account, if such Trustee had continued as trustee, occurred
after the beginning of such three months' period; and
(ii) such receipt of property or reduction of
claim occurred within three months after such resignation or
removal.
(b) There shall be excluded from the operation of
subsection (a) of this Section a creditor relationship arising
from
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a
maturity of one year or more at the time of acquisition by
the Trustee;
(2) advances authorized by a receivership or
bankruptcy court of competent jurisdiction, or by this
Indenture, for the purpose of preserving any property other
than cash which shall at any time be subject to the lien, if
any, of this Indenture or of discharging tax liens or other
prior liens or encumbrances thereon, if notice of such
advance and of the circumstances surrounding the making
thereof is given to the Securityholders at the time and in
the manner provided in this Indenture;
(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent,
subscription agent, fiscal agent or depositary, or other
similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a
result of goods or securities sold in a cash transaction as
defined in subsection (c) of this Section;
(5) the ownership of stock or of other securities of a
Company organized under the provisions of Section 25(a) of
the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of self-
liquidating paper as defined in subsection (c) of this
Section.
(c) As used in this Section:
(1) The term "default" shall mean any failure to make
payment in full of the principal of (or premium, if any) or
interest upon any of the Securities or upon the other
indenture securities when and as such principal (or premium,
if any) or interest becomes due and payable.
(2) The term "other indenture securities" shall mean
securities upon which the Company is an obligor (as defined
in the Trust Indenture Act of 1939, as amended) outstanding
under any other indenture (A) under which the Trustee is
also trustee, (B) which contains provisions substantially
similar to the provisions of subsection (a) of this Section,
and (C) under which a default exists at the time of the
apportionment of the funds and property held in said special
account.
(3) The term "cash transaction" shall mean any
transaction in which full payment for goods or securities
sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn
upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" shall mean any
draft, bill of exchange, acceptance or obligation which is
made, drawn, negotiated or incurred by the Company for the
purpose of financing the purchase, processing, manufacture,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the
sale of the goods, wares or merchandise previously
constituting the security, provided the security is received
by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill
of exchange, acceptance or obligation.
(5) The term "Company" shall mean any obligor upon any
of the Securities.
ARTICLE 8.
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Whenever in this Indenture it is
provided that the holders of a majority or specified percentage
in aggregate principal amount of the Securities of a particular
series may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking
any such action the holders of such majority or specified
percentage of that series have joined therein may be evidenced by
any instrument or any number of instruments of similar tenor
executed by such holders of Securities of that series in person
or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders
of any series any request, demand, authorization, direction,
notice, consent, waiver or other action, the Company may, at its
option, as evidenced by an Officers' Certificate, fix in advance
a record date for such series for the determination of
Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other
action, but the Company shall have no obligation to do so. If
such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Securityholders of
record at the close of business on the record date shall be
deemed to be Securityholders for the purposes of determining
whether Securityholders of the requisite proportion of
Outstanding Securities of that series have authorized or agreed
or consented to such request, demand, authorization, direction,
notice, consent, waiver or other action, and for that purpose the
Outstanding Securities of that series shall be computed as of the
record date. Any such authorization, agreement or consent by
such Securityholders on the record date shall be deemed effective
upon receipt.
SECTION 8.02. Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Securityholder
(such proof will not require notarization) or his agent or proxy
and proof of the holding by any person of any of the Securities
shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such
person of any instrument may be proved in any reasonable manner
acceptable to the Trustee.
(b) The ownership of Securities shall be proved by the
Security Registrar of such Securities or by a certificate of the
Security Registrar thereof.
(c) The Trustee may require such additional proof of
any matter referred to in this Section as it shall deem
necessary.
SECTION 8.03. Prior to the due presentment for
registration of transfer of any Security, the Company, the
Trustee, any paying agent and any Security Registrar may deem and
treat the person in whose name such Security shall be registered
upon the books of the Company as the absolute owner of such
Security (whether or not such Security shall be overdue and
notwithstanding any notice of ownership or writing thereon made
by anyone other than the Security Registrar) for the purpose of
receiving payment of or on account of the principal of, premium,
if any, and (subject to Section 2.03) interest on such Security
and for all other purposes; and neither the Company nor the
Trustee nor any paying agent nor any Security Registrar shall be
affected by any notice to the contrary.
SECTION 8.04. In determining whether the holders of
the requisite aggregate principal amount of Securities of a
particular series have concurred in any direction, consent or
waiver under this Indenture, Securities of that series which are
owned by the Company or any other obligor on the Securities of
that series or by any Affiliate of the Company or any other
obligor on the Securities of that series shall be disregarded and
deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction,
consent or waiver only Securities of such series which the
Trustee actually knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be
regarded as Outstanding for the purposes of this Section, if the
pledgee shall establish to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and
that the pledgee is not a person directly or indirectly
controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In case of a
dispute as to such right, any decision by the Trustee taken upon
the advice of counsel shall be full protection to the Trustee.
SECTION 8.05. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the
taking of any action by the holders of the majority or percentage
in aggregate principal amount of the Securities of a particular
series specified in this Indenture in connection with such
action, any holder of a Security of that series which is shown by
the evidence to be included in the Securities the holders of
which have consented to such action may, by filing written notice
with the Trustee, and upon proof of holding as provided in
Section 8.02, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the
holder of any Security shall be conclusive and binding upon such
holder and upon all future holders and owners of such Security,
and of any Security issued in exchange therefor, on registration
of transfer thereof or in place thereof, irrespective of whether
or not any notation in regard thereto is made upon such Security.
Any action taken by the holders of a majority or percentage in
aggregate principal amount of the Securities of a particular
series specified in this Indenture in connection with such action
shall be conclusively binding upon the Company, the Trustee and
the holders of all the Securities of that series.
ARTICLE 9.
SUPPLEMENTAL INDENTURES
SECTION 9.01. In addition to any supplemental
indenture otherwise authorized by this Indenture, the Company,
when authorized by a Board Resolution, and the Trustee may from
time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as then in effect),
without the consent of the Securityholders, for one or more of
the following purposes;
(a) to evidence the succession of another corporation
to the Company, and the assumption by any such successor of the
covenants of the Company contained herein or otherwise
established with respect to the Securities; or
(b) to add to the covenants of the Company such
further covenants, restrictions, conditions or provisions for the
protection of the holders of the Securities of all or any series
as the Board of Directors and the Trustee shall consider to be
for the protection of the holders of Securities of all or any
series, and to make the occurrence, or the occurrence and
continuance, of a default in any of such additional covenants,
restrictions, conditions or provisions a default or an Event of
Default with respect to such series permitting the enforcement of
all or any of the several remedies provided in this Indenture as
herein set forth; provided, however, that in respect of any such
additional covenant, restriction, condition or provision such
supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than
that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right
of the holders of a majority in aggregate principal amount of the
Securities of such series to waive such default; or
(c) to cure any ambiguity or to correct or supplement
any provision contained herein or in any supplemental indenture
which may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture, or to make
such other provisions in regard to matters or questions arising
under this indenture as shall not be inconsistent with the
provisions of this Indenture and shall not adversely affect the
interests of the holders of the Securities of any series; or
(d) to change or eliminate any of the provisions of
this Indenture, provided that any such change or elimination
shall become effective only when there is no Security Outstanding
of any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision.
The Trustee is hereby authorized to join with the
Company in the execution of any such supplemental indenture, and
to make any further appropriate agreements and stipulations which
may be therein contained, but the Trustee shall not be obligated
to enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture
or otherwise.
Any supplemental indenture authorized by the provisions
of this Section may be executed by the Company and the Trustee
without the consent of the holders of any of the Securities at
the time Outstanding, notwithstanding any of the provisions of
Section 9.02.
SECTION 9.02. With the consent (evidenced as provided
in Section 8.01) of the holders of not less than a majority in
aggregate principal amount of the Securities of each series
affected by such supplemental indenture or indentures at the time
Outstanding, the Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act of 1939 as
then in effect) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying
in any manner the rights of the holders of the Securities of such
series under this Indenture; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of any
Securities of any series, or reduce the principal amount thereof,
or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption
thereof, without the consent of the holder of each Security so
affected, or (ii) reduce the aforesaid percentage of Securities,
the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of
each Security then Outstanding and affected thereby.
Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of
the consent of Securityholders required to consent thereto as
aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may
in its discretion but shall not be obligated to enter into such
supplemental indenture.
It shall not be necessary for the consent of the
Securityholders of any series affected thereby under this Section
to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
Promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to the provisions
of this Section, the Trustee shall transmit by mail, first class
postage prepaid, a notice, setting forth in general terms the
substance of such supplemental indenture, to the Securityholders
of all series affected thereby as their names and addresses
appear upon the Security Register. Any failure of the Trustee to
mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.03. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article or of
Section 10.01, this Indenture shall, with respect to such series,
be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the
Trustee, the Company and the holders of Securities of the series
affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.04. Securities of any series, affected by a
supplemental indenture, authenticated and delivered after the
execution of such supplemental indenture pursuant to the
provisions of this Article or of Section 10.01, may bear a
notation in form approved by the Trustee, provided such form
meets the requirements of any exchange upon which such series may
be listed, as to any matter provided for in such supplemental
indenture. If the Company or the Trustee shall so determine, new
Securities of that series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental
indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Securities of that
series then Outstanding.
SECTION 9.05. The Trustee, subject to the provisions
of Section 7.01, may receive an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to
this Article is authorized or permitted by, and conforms to, the
terms of this Article and that it is proper for the Trustee under
the provisions of this Article to join in the execution thereof.
ARTICLE 10.
CONSOLIDATION, MERGER AND SALE
SECTION 10.01. Nothing contained in this Indenture or
in any of the Securities shall prevent any consolidation or
merger of the Company with or into any other corporation or
corporations (whether or not affiliated with the Company), or
successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall
prevent any sale, conveyance, transfer or other disposition of
the property of the Company or its successor or successors as an
entirety, or substantially as an entirety, to any other
corporation (whether or not affiliated with the Company or its
successor or successors) authorized to acquire and operate the
same; provided, however, the Company hereby covenants and agrees
that, upon any such consolidation, merger, sale, conveyance,
transfer or other disposition, (a) the due and punctual payment
of the principal of (premium, if any) and interest on all of the
Securities of all series in accordance with the terms of each
series, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of
this Indenture with respect to each series or established with
respect to such series pursuant to Section 2.01 to be kept or
performed by the Company, shall be expressly assumed, by
supplemental indenture (which shall conform to the provisions of
the Trust Indenture Act of 1939 as then in effect) satisfactory
in form to the Trustee executed and delivered to the Trustee by
the Company formed by such consolidation, or into which the
Company shall have been merged, or by the corporation which shall
have acquired such property and (b) the corporation or
corporations formed by such consolidation or into which the
Company is merged or the Person or Persons which acquire by
conveyance or transfer, or which lease, the properties and assets
of the Company substantially as an entirety shall be a Person or
Persons organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia.
SECTION 10.02. (a) In case of any such consolidation,
merger, sale, conveyance, transfer or other disposition and upon
the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the due and punctual payment of the
principal of, premium, if any, and interest on all of the
Securities of all series Outstanding and the due and punctual
performance of all of the covenants and conditions of this
Indenture or established with respect to each series of the
Securities pursuant to Section 2.01 to be performed by the
Company with respect to each series, such successor corporation
shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the party of the
first part, and thereupon the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture
and the Securities. Such successor corporation thereupon may
cause to be signed, and may issue either in its own name or in
the name of the Company or any other predecessor obligor on the
Securities, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor
company, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any securities which
previously shall have been signed and delivered by the officers
of the predecessor Company to the Trustee for authentication, and
any Securities which such successor corporation thereafter shall
cause to be signed and delivered to the Trustee for that purpose.
All the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued
at the date of the execution hereof.
(b) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition such changes in
phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
(c) Nothing contained in this Indenture or in any of
the Securities shall prevent the Company from merging into itself
or acquiring by purchase or otherwise all or any part of the
property of any other corporation (whether or not affiliated with
the Company).
SECTION 10.03. The Trustee, subject to the provisions of
Section 7.01, may receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, complies
with the provisions of this Article.
ARTICLE 11.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 11.01. If at any time: (a) the Company shall
have delivered to the Trustee for cancellation all Securities of
a series theretofore authenticated (other than any Securities
which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.07) and
Securities for whose payment money or Governmental Obligations
has theretofore been deposited in trust or segregated and held in
trust by the Company (and thereupon repaid to the Company or
discharged from such trust, as provided in Section 11.05) or (b)
all such Securities of a particular series not theretofore
delivered to the Trustee for cancellation shall have become due
and payable, or are by their terms to become due and payable
within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the
giving of notice of redemption, and the Company shall deposit or
cause to be deposited with the Trustee as trust funds the entire
amount in moneys or Governmental Obligations sufficient or a
combination thereof, sufficient, without reinvestment, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay at maturity or upon redemption
all Securities of that series not theretofore delivered to the
Trustee for cancellation, including principal (and premium, if
any) and interest due or to become due to such date of maturity
or date fixed for redemption, as the case may be, and if the
Company shall also pay or cause to be paid all other sums payable
hereunder with respect to such series by the Company, then this
Indenture shall thereupon cease to be of further effect with
respect to such series except for the provisions of Sections
2.05, 2.07, 4.02 and 7.10, which shall survive until the date of
maturity or redemption date, as the case may be, and Sections
7.06 and 11.05 which shall survive to such date and thereafter,
and the Trustee, on demand of the Company and at the cost and
expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with
respect to such series.
SECTION 11.02. If at any time all such Securities of a
particular series not heretofore delivered to the Trustee for
cancellation or which have not become due and payable as
described in Section 11.01 shall have been paid by the Company by
depositing irrevocably with the Trustee as trust funds moneys or
an amount of Governmental Obligations sufficient to pay at
maturity or upon redemption all such Securities of that series
not theretofore delivered to the Trustee for cancellation,
including principal (and premium, if any) and interest due or to
become due to such date of maturity or date fixed for redemption,
as the case may be, and if the Company shall also pay or cause to
be paid all other sums payable hereunder by the Company with
respect to such series, then after the date such moneys or
Governmental Obligations, as the case may be, are deposited with
the Trustee the obligations of the Company under this Indenture
with respect to such series shall cease to be of further effect
except for the provisions of Sections 2.05, 2.07, 4.02, 7.06,
7.10 and 11.05 hereof which shall survive until such Securities
shall mature and be paid. Thereafter, Sections 7.06 and 11.05
shall survive.
SECTION 11.03. All moneys or Governmental Obligations
deposited with the Trustee pursuant to Sections 11.01 or 11.02
shall be held in trust and shall be available for payment as due,
either directly or through any paying agent (including the
Company acting as its own paying agent), to the holders of the
particular series of Securities for the payment or redemption of
which such moneys or Governmental Obligations have been deposited
with the Trustee.
SECTION 11.04. In connection with the satisfaction and
discharge of this Indenture all moneys or Governmental
Obligations then held by any paying agent under the provisions of
this Indenture shall, upon demand of the Company, be paid to the
Trustee and thereupon such paying agent shall be released from
all further liability with respect to such moneys or Governmental
Obligations.
SECTION 11.05. Any moneys or Governmental Obligations
deposited with any paying agent or the Trustee, or then held by
the Company, in trust for payment of principal of or premium or
interest on the Securities of a particular series that are not
applied but remain unclaimed by the holders of such Securities
for two years after the date upon which the principal of (and
premium, if any) or interest on such Securities shall have
respectively become due and payable, shall be repaid to the
Company on May 31 of each year or (if then held by the Company)
shall be discharged from such trust; and thereupon the paying
agent and the Trustee shall be released from all further
liability with respect to such moneys or Governmental
Obligations, and the holder of any of the Securities entitled to
receive such payment shall thereafter, as an unsecured general
creditor, look only to the Company for the payment thereof.
ARTICLE 12.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01. No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Security, or
for any claim based thereon or otherwise in respect thereof,
shall be had against any incorporator, stockholder, officer or
director, past, present or future as such, of the Company or of
any predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty
or otherwise; it being expressly understood that this Indenture
and the obligations issued hereunder are solely corporate
obligations, and that no such personal liability whatever shall
attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of
any predecessor or successor corporation, or any of them, because
of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or
implied therefrom; and that any and all such personal liability
of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or
director as such, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom, are hereby expressly waived
and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of such Securities.
ARTICLE 13.
SUNDRY PROVISIONS
SECTION 13.01. All the covenants, stipulations, promises
and agreements in this Indenture contained by or on behalf of the
Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 13.02. Any act or proceeding by any provision of
this Indenture authorized or required to be done or performed by
any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the
corresponding board, committee or officer of any corporation that
shall at the time be the lawful sole successor of the Company.
SECTION 13.03. The Company by instrument in writing
executed by authority of its Board of Directors and delivered to
the Trustee may surrender any of the powers reserved to the
Company and thereupon such power so surrendered shall terminate
both as to the Company and as to any successor corporation.
SECTION 13.04. Except as otherwise expressly provided
herein any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the
Trustee or by the holders of Securities to or on the Company may
be given or served by being deposited first class postage prepaid
in a post office letterbox addressed (until another address is
filed in writing by the Company with the Trustee), as follows:
Century Telephone Enterprises, Inc., 100 Century Park Drive,
Monroe, Louisiana 71203, Attention: R. Stewart Ewing, Jr. Such
notice shall be deemed effective upon dispatch. Any notice,
election, request or demand by the Company or any Securityholder
to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made in writing at
the Corporate Trust Office of the Trustee, Attention: Corporate
Trust Administration.
SECTION 13.05. This Indenture and each Security shall
be deemed to be a contract made under the laws of the State of
Louisiana, and for all purposes shall be construed in accordance
with the laws of said State.
SECTION 13.06. (a) Upon any application or demand by
the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent
have been complied with, except that in the case of any such
application or demand as to which the furnishing of no such
documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant in this Indenture shall include (1)
a statement that the person making such certificate or opinion
has read such covenant or condition; (2) a brief statement as to
the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or
opinion are based; (3) a statement that, in the opinion of such
person, such person has made such examination or investigation as
is necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 13.07. In any case where the date of maturity,
of interest payment or principal payment of any Security or the date
of redemption of any Security shall not be a Business Day, then
payment of interest or principal (and premium, if any) may be
made on the next succeeding business day with the same force and
effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal
date.
SECTION 13.08. If and to the extent that any provision
of this Indenture limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture
Act of 1939, as amended, such imposed duties shall control.
SECTION 13.09. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but
such counterparts shall together constitute but one and the same
instrument.
SECTION 13.10. In case any one or more of the
provisions contained in this Indenture or in the Securities of
any series shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this
Indenture or of such Securities, but this Indenture and such
Securities shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or
therein.
First American Bank & Trust of Louisiana hereby accepts
the trusts in this Indenture declared and provided, upon the
terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
CENTURY TELEPHONE ENTERPRISES, INC.
By _______________________________
Attest:
By _______________________
Secretary
FIRST AMERICAN BANK & TRUST OF LOUISIANA
as Trustee
By ________________________________
Attest:
By _______________________
<PAGE>
STATE OF LOUISIANA )
)ss.:
PARISH OF OUACHITA )
On the __ day of _____________ 1994, before me
personally came R. Stewart Ewing, Jr., to me known, who, being by
me duly sworn, did depose and say that he is the Senior Vice
President and Chief financial Officer of Century Telephone
Enterprises, Inc., one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board
of Directors of said corporation, and that he signed his name
thereto by like authority.
_______________________
Notary Public
[Notarial Seal]
STATE OF LOUISIANA )
) ss.:
PARISH OF OUACHITA )
On the __ day of ___________ 1994, before me
personally came ________________, to me know, who, being by me
duly so sworn, did depose and say that he is the ____________ and
_____________ of First American Bank & Trust of Louisiana, one of
the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it
was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
_______________________
Notary Public
[Notarial Seal]
Exhibit 4.2
to Registration Statement
CENTURY TELEPHONE ENTERPRISES, INC.
_______________________
Form of Resolution to be Adopted by Executive Committee
(to be used in connection with authorizing the
issuance of any series of senior debt securities
under the below-mentioned Indenture)
_______________________
WHEREAS, the Board of Directors of Century Telephone
Enterprises, Inc. (the "Company") has previously authorized (i)
the appropriate officers of the Company to take various actions
necessary to permit the Company to register, issue and sell
senior debt securities with an aggregate initial offering price
not to exceed $400 million and (ii) the Executive Committee of
the Board of the Directors to establish the specific terms and
conditions of any senior debt securities to be issued and sold
from time to time in one or more series;
NOW, THEREFORE, BE IT RESOLVED:
(1) The Company shall create and issue $___,000,000
aggregate principal amount of its senior debt securities,
consisting of $___,000,000 aggregate principal amount of senior
notes designated as the "Century Telephone Enterprises, Inc.
_____% Senior Notes, Series __, Due ____" (the "New Senior
Notes"), with the sales price and terms set forth in the proposal
of the purchasers dated _____________ (referred to hereinafter as
the "Proposal" and which are attached to and made a part of these
minutes) and in accordance with the Indenture dated as of _, 1994
("Indenture"), between the Company and First American Bank &
Trust of Louisiana, as Trustee ("Trustee"), to wit:
(a) The New Senior Notes will mature on _____________.
(b) The New Senior Notes shall bear interest from
_____________, 199__, until the principal thereof becomes due and
payable at the rate of ____% per annum, payable semi-annually on
_____________ and _____________ in each year commencing
_____________, and any overdue principal and (to the extent that
the payment of such interest is enforceable under applicable law)
any overdue installment of interest thereon shall bear interest
at the same rate per annum; the principal of and the interest on
the New Senior Notes shall be payable in any coin or currency of
the United States of America which at the time of payment is
legal tender for the payment of public and private debts, at the
office or agency of the Company in the City of Monroe, and State
of Louisiana. The regular record date with respect to any
interest payment date for the New Senior Notes shall mean the
_____________ or _____________, as the case may be, immediately
preceding such interest payment date, whether or not such date is
a business day.
(c) The New Senior Notes will not be redeemable prior
to maturity.
OR
The New Senior Notes may not be redeemed prior to
__________. The New Senior Notes may be redeemed from time to
time on not less than 30 nor more than 60 days' prior notice
given as provided in the Indenture, as a whole or in part, at the
option of the Company, on any date or dates on or after ________,
and prior to maturity, at the applicable percentage of the
principal amount thereof to be redeemed as set forth below under
the heading "Redemption Price" during the respective twelve month
periods beginning ____ of the years shown below:
Year Redemption Price
%
together, in each case, with accrued interest to the date fixed
for redemption (but if the date fixed for redemption is an
interest payment date, the interest installment payable on such
date shall be payable to the registered holder at the close of
business on the applicable record date).
None of the New Senior Notes may be called for
redemption at the option of the Company prior to _____________ if
such redemption is for the purpose or in anticipation of
refunding any New Senior Notes by the application, directly or
indirectly, of funds borrowed by the Company at an annual cost of
money (calculated in accordance with generally accepted financial
practice) less than the annual cost of money to the Company
resulting from the sale of the New Senior Notes to the Purchaser.
(If Applicable)
(d) The New Senior Notes and the Trustee's Certificate
of Authentication to be endorsed thereon are to be substantially
in the following form:
(FORM OF FACE OF SECURITY)
No._____________ $_____________
CUSIP NO.________________
Century Telephone Enterprises, Inc.
____% Senior Notes, Series __, Due ____
Century Telephone Enterprises, Inc. a corporation duly
organized and existing under the laws of the State of
Louisiana (herein referred to as the "Company"), for value
received, hereby promises to pay to _____________ or
registered assigns, the principal sum of _____________
Dollars on _____________ and to pay interest on said
principal sum from _____________, or from the most recent
interest payment date to which interest has been paid or
duly provided for, semi-annually on _____________ and
_____________ in each year, commencing _____________, at the
rate of ____% per annum until the principal hereof shall
have become due and payable, and on any overdue principal
and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment
of interest at the same rate per annum. The interest
installment so payable, and punctually paid or duly provided
for, on any interest payment date will, as provided in the
Indenture hereinafter referred to, be paid to the person in
whose name this Security (or one or more Predecessor
Securities, as defined in said Indenture) is registered at
the close of business on the regular record date for such
interest installment, which shall be the _____________ or
_____________, as the case may be (whether or not a business
day), immediately preceding such interest payment date. Any
such interest installment not so punctually paid or duly
provided for shall forthwith cease to be payable to the
registered holder on such regular record date, and may be
paid to the person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of
business on a special record date to be fixed by the Trustee
for the payment of such defaulted interest, notice of which
shall be given to the registered holders of this series of
Securities not more than 15 days and not less than 10 days
prior to such special record date, or may be paid at any
time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the
Indenture hereinafter referred to. The principal of and the
interest on this Security shall be payable at the office or
agency of the Company maintained for that purpose in the
City of Monroe and State of Louisiana in any coin or
currency of the United States of America which at the time
of payment is legal tender for payment of public and private
debt.
This Security shall not be entitled to any benefit
under the Indenture hereinafter referred to, or be valid or
become obligatory for any purpose, until the Certificate of
Authentication hereon shall have been signed by or on behalf
of the Trustee.
The provisions of this Security are continued on the
reverse side hereof and such continued provisions shall for
all purposes have the same effect as though fully set forth
at this place.
IN WITNESS WHEREOF, the Company has caused this
instrument to be executed.
Dated ____________________________
CENTURY TELEPHONE ENTERPRISES, INC.
By ________________________________
[President/Vice President]
Attest:
By ________________________________
[Secretary/Assistant Secretary]
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the above-designated
series therein referred to in the within-mentioned
Indenture.
First American Bank & Trust of Louisiana
as Trustee, Authenticating Agent and
Security Registrar
By _________________________
Authorized Officer
(FORM OF REVERSE OF SECURITY)
This Security is one of a duly authorized series of
Securities of the Company (herein sometimes referred to as
the "Securities"), all issued or to be issued in one or more
series under and pursuant to an Indenture dated as of
_____________, 1994 duly executed and delivered between the
Company and First American Bank & Trust of Louisiana, a
Louisiana banking corporation organized and existing under
the laws of the State of Louisiana, as Trustee (herein
referred to as the "Trustee") (said Indenture hereinafter
referred to as the "Indenture"), to which Indenture
reference is hereby made for a description of the rights,
limitation of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the holders of
the Securities. By the terms of the Indenture, the
Securities are issuable in series which may vary as to
amount, date of maturity, rate of interest and in other
respects as in the Indenture provided. This Security
(herein called the "Security") is one of the series
designated on the face hereof (herein called the "Series")
limited in aggregate principal amount to $___,000,000.
In case an Event of Default, as defined in the
Indenture, with respect to the Series shall have occurred
and be continuing, the principal of all of the Securities of
the Series may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the
Company and the Trustee, with the consent of the holders of
not less than a majority in aggregate principal amount of
the Securities of each series affected at the time
Outstanding, as defined in the Indenture, to execute
supplemental indentures for the purpose of adding any
provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental
indenture or of modifying in any manner the rights of the
holders of the Securities; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity
of any Securities or any series, or reduce the principal
amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any premium payable
upon the redemption thereof, without the consent of the
holder of each Security so affected or (ii) reduce the
aforesaid percentage of Securities, the holders of which are
required to consent to any such supplemental indenture,
without the consent of the holders of each Security then
Outstanding and affected thereby. The Indenture also
contains provisions permitting the holders of a majority in
aggregate principal amount of the Securities of any series
at the time Outstanding, on behalf of the holders of
Securities of such series, to waive any past default in the
performance of any of the covenants contained in the
Indenture, or establish pursuant to the Indenture with
respect to such series, and its consequences, except a
default in the payment of the principal of, or premium, if
any, or interest on any of the Securities of such series.
Any such consent or waiver by the registered holder of this
Security (unless revoked as provided in the Indenture) shall
be conclusive and binding upon such holder and upon all
future holders and owners of this Security and of any
Security issued in exchange hereof or in place hereof
(whether by registration of transfer or otherwise),
irrespective of whether or not any notation of such consent
or waiver is made upon this Security.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair
the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this
Security at the times and place and at the rate and in the
currency herein prescribed.
The Securities are issuable as registered Securities
without coupons in denominations of $1,000 or any integral
multiple thereof. Securities may be exchanged, upon
presentation thereof for that purpose, at the office or
agency of the Company in the City of Monroe and State of
Louisiana, for other Securities of authorized denominations,
and for a like aggregate principal amount and series, and
upon payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto.
The Securities will not be redeemable prior to
maturity.
OR
The Securities may not be redeemed prior to __________.
The Securities may be redeemed from time to time on not less
than 30 nor more than 60 days' prior notice given as
provided in the Indenture, as a whole or in part, at the
option of the Company, on any date or dates on or after
________, and prior to maturity, at the applicable
percentage of the principal amount thereof to be redeemed as
set forth below under the heading "Redemption Price" during
the respective twelve month periods beginning ____ of the
years shown below:
Year Redemption Price
%
together, in each case, with accrued interest to the date
fixed for redemption (but if the date fixed for redemption
is an interest payment date, the interest installment
payable on such date shall be payable to the registered
holder at the close of business on the applicable record
date).
As provided in the Indenture and subject to certain
limitations therein set forth, this Security is transferable
by the registered holder hereof on the Security Register of
the Company, upon surrender of this Security for
registration of transfer at the office or agency of the
Company in the City of Monroe and State of Louisiana
accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company or the Security
Registrar duly executed by the registered holder hereof or
his attorney duly authorized in writing, and thereupon one
or more new Securities of authorized denominations and for
the same aggregate principal amount and series will be
issued to the designated transferee or transferees. No
service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer
of this Security the Company, the Trustee, any paying agent
and any Security Registrar may deem and treat the registered
holder hereof as the absolute owner hereof (whether or not
this Security shall be overdue and notwithstanding any
notice of ownership or writing hereon made by anyone other
than the Security Registrar) for the purpose of receiving
payment of or on account of the principal hereof and
interest due hereon and for all other purposes, and neither
the Company nor the Trustee nor any paying agent nor any
Security Registrar shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the
principal of or the interest on this Security, or for any
claim based hereon, or otherwise in respect hereof, or based
on or in respect of the Indenture, against any incorporator,
stockholder, affiliate, officer or director, past, present
or future, as such, of the Company or of any predecessor or
successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the
consideration for the issuance hereof, expressly waived and
released.
Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings set forth in the
Indenture.
The Indenture and this Security shall be governed by and
construed in accordance with the laws of the State of
Louisiana.
(2) The office of First American Bank & Trust of
Louisiana is hereby designated and created as the agency of the
Company in the City of Monroe and State of Louisiana at which (i)
both the principal and the interest on the New Senior Notes are
payable and notices, presentations and demands to or upon the
Company in respect the New Senior Notes may be given or made,
(ii) the New Senior Notes may be surrendered for transfer or
exchange and transferred or exchanged in accordance with the
terms of the Indenture and (iii) books for the registration and
transfer of the New Senior Notes shall be kept;
(3) The office of First American Bank & Trust of
Louisiana is hereby designated and created as Security Registrar
of the Company in the City of Monroe and State of Louisiana at
which (i) the Company shall register the New Senior Notes, (ii)
the New Senior Notes may be surrendered for transfer or exchange
and transferred or exchanged in accordance with the terms of the
Indenture, and (iii) books for the registration and transfer of
the New Senior Notes shall be kept;
(4) The New Senior Notes hereby authorized by these
resolutions shall be in substantially the forms and shall have
the characteristics provided in the Indenture, and the forms of
the New Senior Notes of each such series set forth in these
resolutions is hereby approved and adopted;
FURTHER RESOLVED:
(1) The President or any Vice President is hereby
authorized to execute and deliver on behalf of the Company an
Underwriting Agreement in substantially the form of the
Underwriting Agreement provided as an exhibit to the registration
statement filed with respect to the New Senior Notes (the
"Registration Statement"), reflecting the terms of the New Senior
Notes approved hereby, along with any accompanying price
determination agreement or similar instrument that confirms that
the sale prices proposed in the Proposal will be the actual sale
prices at which the New Senior Notes will be sold to the
Underwriters specified therein and to the public;
(2) The President or any Vice President and the
Secretary or any Assistant Secretary are hereby authorized and
directed to deliver to the Trustee a certified record of these
resolutions setting forth the terms of the New Senior Notes as
required by Section 2.01 of the Indenture;
(3) The President or any Vice President is hereby
authorized to execute $___,000,000 aggregate principal amount of
New Senior Notes on behalf of the Company under its corporate
seal or a facsimile attested by the Secretary or any Assistant
Secretary, and the signature of the President, or any Vice
President, may be in the form of a facsimile signature of the
present or any future President or Vice President and/or the
signature of the Secretary or any Assistant Secretary in
attestation of the corporate seal may be in the form of a
facsimile signature of the present or any future Secretary or
Assistant Secretary, and should any officer who signs, or whose
facsimile signature appears upon, any of the New Senior Notes
cease to be such an officer prior to their issuance, the New
Senior Notes so signed or bearing such facsimile signature shall
still be valid, and without prejudice to the use of the facsimile
signature of any other officer as hereinabove authorized, the
facsimile signature of Glen F. Post III, President, and the
facsimile signature of Harvey P. Perry, Secretary, are hereby
expressly approved and adopted;
(4) The officers are hereby authorized to cause the
New Senior Notes to be delivered to the Trustee for
authentication and delivery by it in accordance with the
provisions of the Indenture, and the Trustee is hereby authorized
and requested to authenticate the New Senior Notes upon
compliance by the Company with the provisions of the Indenture
and to deliver the same to or upon the written order of the
President or any Vice President, and the President or any Vice
President is hereby authorized and directed to apply to the
Trustee for the authentication and delivery of New Senior Notes;
(5) The President or any Vice President and the
Treasurer or any Assistant Treasurer are hereby authorized and
empowered to endorse, in the name and on behalf or the Company,
any and all checks received in connection with the sales of the
New Senior Notes for application as set forth in the "Use of
Proceeds" section of the Registration Statement, or for deposit
to the account of the Company in any bank, and that any such
endorsement be sufficient to bind the Company;
(6) The officers are hereby authorized to issue and
sell to the purchasers the aggregate principal amounts of the New
Senior Notes at the price and upon the terms and conditions set
forth in the Underwriting Agreement covering the sale of the New
Senior Notes; and
(7) The officers are authorized to execute and deliver
all such instruments and documents, to incur on behalf of the
Company all such expenses and obligations, to make all such
payments, and to do all such other acts and things as they may
consider necessary or desirable in connection with the
accomplishment of the intent and purposes of the foregoing
resolutions.
Exhibit 5
to Registration Statement
[Letterhead intentionally deleted]
March 30, 1994
Century Telephone Enterprises, Inc.
100 Century Park Drive
Monroe, Louisiana 71203
RE: Registration Statement on Form S-3
Century Telephone Enterprises, Inc. ("Century")
Our File No. 6207/62214-00
Gentlemen:
We have acted as Century's special counsel in connection with
the preparation of the registration statement on Form S-3 (the
"Registration Statement") filed by Century with the Securities
and Exchange Commission (the "Commission") on the date hereof
relating to the registration of senior unsecured debt securities
("Senior Debt Securities") which may be issued from time to time
in one or more series under an Indenture (the "Indenture") to be
entered into between Century and First American Bank & Trust of
Louisiana, Monroe, Louisiana, as Trustee (the "Trustee").
In connection with rendering the opinions expressed below, we
have examined original, photostatic or certified copies of (i)
the resolutions adopted by the Board of Directors of Century on
February 22, 1994 (the "February Resolutions") and (ii) such
other records of Century, certificates of Century's officers and
public officials, and such other documents as we have deemed
relevant. In our examination, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and
the authenticity of the originals of such documents.
Based upon the foregoing and subject to the following
qualifications and comments, we are of the opinion that:
1. Century is a corporation duly organized, validly existing
and in good standing under the laws of the State of Louisiana,
and has all requisite corporate power to issue the Senior Debt
Securities.
2. The proposed issuance of the Senior Debt Securities has
been duly authorized by Century's Board of Directors and the
Senior Debt Securities will, when issued in accordance with the
terms and conditions of the February Resolutions, the Indenture
and the Registration Statement, be validly issued.
3. The Senior Debt Securities of each series to be issued
under the Indenture will be valid and binding obligations of
Century (except to the extent the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws affecting
the enforcement of creditors' rights generally and that the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefore may
be brought), when (i) the Registration Statement, as finally
amended, shall have become effective under the Securities Act of
1933, as amended, and the Indenture shall have been qualified under
the Trust Indenture Act of 1939, as amended, and duly executed and
delivered by Century and the Trustee, (ii) Century's Board of
Directors or the Executive Committee thereof shall have duly
adopted final resolutions authorizing the issuance of such series
of Senior Debt Securities and establishing the terms and
conditions thereof, and (iii) the Senior Debt Securities of such
series shall have been duly executed by Century and authenticated
by the Trustee as provided in the Indenture and shall have been
duly delivered to the purchasers thereof against payment of the
agreed consideration therefor as described in the Indenture and
Registration Statement.
The opinions rendered herein are specifically limited to
currently applicable United States federal law and the laws of
the State of Louisiana as they relate to the opinions expressed
herein. We are members of the bar of the State of Louisiana and
have neither been admitted to nor purport to be experts on the
laws of any other jurisdiction. We express no opinion as to the
application of the securities or blue sky laws of the various
states to the sale of any Senior Debt Securities.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us in the
prospectus forming a part thereof under the caption "Legal
Matters." In giving this consent, we do not admit that we are
within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the
general rules and regulations of the Commission.
Yours very truly,
JONES, WALKER, WAECHTER,
POITEVENT, CARRERE & DENEGRE, L.L.P.
By: /s/ Kenneth J. Najder
_________________________
Kenneth J. Najder
Exhibit 12
to Registration Statement
RATIO OF EARNINGS TO FIXED CHARGES
FOR EACH OF THE FIVE YEARS ENDED DECEMBER 31
(unaudited)
<TABLE>
<CAPTION>
1989 1990 1991 1992 1993
_________ ________ ________ ________ ________
<S> <C> <C> <C> <C> <C>
Income before the
cumulative effect of
changes in accounting
principles $ 22,164 $ 31, 098 $ 37,419 $ 59,973 $ 69,004
Income taxes 10,740 17,396 20,070 32,599 37,252
_________ __________ _________ _________ _________
Pretax income 32,904 48,494 57,489 92,572 106,256
_________ __________ _________ _________ _________
Adjustments to Earnings:
Fixed charges 22,649 24,351 22,693 27,220 30,150
Capitalized interest (508) (412) (91) (547) (76)
Gross earnings from
unconsolidated cellular
partnerships (469) (517) (1,793) (2,526) (7,167)
Distributed earnings
from unconsolidated
cellular partnerships 0 416 82 395 1,587
Gross losses from
unconsolidated cellular
partnerhips 352 585 1,096 834 541
Minority losses
from majority-owned
subsidiaries (808) (405) (478) (315) (625)
__________ __________ __________ _________ _________
Earnings as adjusted 54,120 72,512 78,998 117,633 130,666
__________ __________ __________ _________ _________
Fixed charges:
Interest expense 22,417 24,132 22,504 27,166 30,149
Preferred dividends
of subsidiaries paid
to ouside parties 232 219 189 54 1
__________ __________ ___________ _________ __________
22,649 24,351 22,693 27,220 30,150
__________ __________ __________ __________ __________
Ratio of earnings to
fixed charges 2.39 2.98 3.48 4.32 4.33
========== ========== ========== ========== ==========
</TABLE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Century Telephone Enterprises, Inc.
We consent to the use of our report dated February 4, 1994,
incorporated herein by reference and to the references to our
firm under the headings "Selected Financial Data" and "Experts"
in the Prospectus. Our report refers to changes in the methods
of accounting for income taxes and post-retirement benefits other
than pensions in 1992.
/s/ KPMG Peat Marwick
KPMG PEAT MARWICK
Shreveport, Louisiana
March 29, 1994
Exhibit 23.2
to the Registration Statement
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference of our report on the
consolidated balance sheets of Celutel, Inc. and Subsidiaries as of
April 30, 1993 and 1992, and the consolidated statements of operations,
changes in shareholders' deficit and cash flows for the years ended April
30, 1993, 1992 and 1991, included in the report on Form 8-K of Century
Telephone Enterprises, Inc. (Century), dated October 8, 1993, into the
registration statement on Form S-3 of Century dated March 30, 1994. We
also consent to the reference to our firm under the caption "Experts."
/s/ Coopers & Lybrand
Coopers & Lybrand
Washington, D.C.
March 30, 1994
Registration No.33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) X
FIRST AMERICAN BANK & TRUST OF LOUISIANA
(Exact names of trustees as specified in its charter)
72-0579712
(I.R.S. Employer
Identification No.)
1500 North Eighteenth Street
Monroe, Louisiana 71201
(Address of principal executive offices) (Zip Code)
CENTURY TELEPHONE ENTERPRISES, INC.
(Exact names of obligors as specified in their charters)
LOUISIANA 72-0651161
(States or other jurisdictions of (I.R.S. Employer
incorporation or organization) Identification Nos.)
100 Century Park Drive
Monroe, Louisiana 71203
(Addresses of principal executive offices) (Zip Code)
ALL SENIOR DEBT SECURITIES
(Title of the indenture securities)
Item 1. General Information
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
FEDERAL DEPOSIT INSURANCE CORPORATION
MEMPHIS, TENNESSEE
LOUISIANA OFFICE OF FINANCIAL INSTITUTIONS
BATON ROUGE, LOUISIANA
(b) Whether it is authorized to exercise corporate trust
powers.
YES
Item 2. Affiliations with the obligors.
If any of the obligors is an affiliate of the trustee,
describe each such affiliation.
NONE OF THE OBLIGORS IS AN AFFILIATE OF THE TRUSTEE
Item 3. Voting securities of the trustee.
Furnish the following information as to each class of
voting securities of the trustee:
Col. A Col. B
Title of Class Amount outstanding
NOT APPLICABLE BY VIRTUE OF FORM T-1 GENERAL INSTRUCTION B
AND RESPONSE TO ITEM 13.
Item 4. Trusteeships under other indentures.
If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligors are
outstanding furnish the following information:
(a) Title of the securities outstanding under each such other
indenture.
NOT APPLICABLE BY VIRTUE OF FORM T-1 GENERAL INSTRUCTION B
AND RESPONSE TO ITEM 13.
(b) A brief statement of the facts relied upon as a basis for
the claim that no conflicting interest within the meaning of
Section 310(b)(1) of the Act arises as a result of the
trusteeship under any such other indenture, including a
statement as to how the indenture securities will rank as
compared with the securities issued under such other
indenture.
NOT APPLICABLE BY VIRTUE OF FORM T-1 GENERAL INSTRUCTION B
AND RESPONSE TO ITEM 13.
Item 5. Interlocking directorates and similar relationships
with the obligors or underwriters.
If the trustee or any of the directors or executive officers of the
trustee is a director, officer, partner, employee, appointee or
representative of any of the obligors or of any underwriter for the
obligors, identify each such person having any such connection and
state the nature of each such connection.
NOT APPLICABLE BY VIRTUE OF FORM T-1 GENERAL INSTRUCTION B
AND RESPONSE TO ITEM 13.
Item 6. Voting securities of the trustee owned by the
obligors or their officials.
Furnish the following information as to the voting securities of
the trustee owned beneficially by the obligors and each director,
partner and executive officer of the obligors.
Col. A Col. B Col. C Col. D
Percentage of
voting securities
represented by
Amount owned amount given
Name of owner Title of Class beneficially in Col. C
_____________ ______________ _____________ _________________
NOT APPLICABLE BY VIRTUE OF FORM T-1 GENERAL INSTRUCTION B
AND RESPONSE TO ITEM 13.
Item 7. Voting securities of the trustee owned by underwriters or their
officials.
Furnish the following information as to the voting securities
of the trustee owned beneficially by each underwriter for the
obligors and each director, partner and executive officer of each
such underwriter.
Col. A Col. B Col. C Col. D
Percentage of
voting securities
represented by
Amount owned amount given
Name of owner Title of Class beneficially in Col. C
_____________ ______________ ____________ _________________
NOT APPLICABLE BY VIRTUE OF FORM T-1 GENERAL INSTRUCTION B
AND RESPONSE TO ITEM 13.
Item 8. Securities of the obligors owned or held by the
trustee.
Furnish the following information as to securities of the
obligors owned beneficially or held as collateral security for
obligations in default by the trustee.
Col. A Col. B Col. C Col. D
Whether the Amount owned
securities beneficially or held Percent of class
are voting as collateral security represented by
or nonvoting for obligations amount given
Title of Class securities in default in Col. C
______________ ____________ ______________________ _________________
NOT APPLICABLE BY VIRTUE OF FORM T-1 GENERAL INSTRUCTION B
AND RESPONSE TO ITEM 13.
Item 9. Securities of underwriters owned or held by the
trustee.
If the trustee owns beneficially or holds as collateral
security for obligations in default any securities of an
underwriter for the obligors, furnish the following information
as to each class of securities of such underwriter any of which
are so owned or held by the trustee.
Col. A Col. B Col. C Col. D
Amount owned
beneficially or held Percent of class
as collateral security represented by
Name of issuer and Amount for obligations in amount given
title of class outstanding default by trustee in Col. C
__________________ ____________ ______________________ _________________
NOT APPLICABLE BY VIRTUE OF FORM T-1 GENERAL INSTRUCTION B
AND RESPONSE TO ITEM 13.
Item 10. Ownership or holdings by the trustee of voting securities of
certain affiliates or security holders of the obligors.
If the trustee owns beneficially or holds as collateral security
for obligations in default voting securities of a person who, to
the knowledge of the trustee (1) owns 10 percent or more of the
voting securities of any of the obligors or (2) is an affiliate,
other than a subsidiary, or any of the obligors, furnish the
following information as to the voting securities of such person:
Col. A Col. B Col. C Col. D
Amount owned
beneficially or held Percent of class
as collateral security represented by
Name of issuer and Amount for obligations in amount given
title of class outstanding default by trustee in Col. C
__________________ ___________ ______________________ _________________
NOT APPLICABLE BY VIRTUE OF FORM T-1 GENERAL INSTRUCTION B
AND RESPONSE TO ITEM 13.
Item 11. Ownership or holdings by the trustee of any securities of a person
owning 50 percent or more of the voting securities of the obligors.
If the trustee owns beneficially or holds as collateral security
for obligations in default any securities of a person who, to the
knowledge of the trustee owns 50 percent or more of the voting
securities of any of the obligors, furnish the following
information as to each class of securities of such person any of
which are so owned or held by the trustee.
Col. A Col. B Col. C Col. D
Amount owned
beneficially or held Percent of class
as collateral security represented by
Name of issuer and Amount for obligations in amount given
title of class outstanding default by trustee in Col C.
__________________ ___________ ______________________ _________________
NOT APPLICABLE BY VIRTUE OF FORM T-1 GENERAL INSTRUCTION B
AND RESPONSE TO ITEM 13.
Item 12. Indebtedness of the obligors to the trustee.
Except as noted in the instructions, if any of the obligors is
indebted to the trustee, furnish the following information:
Col. A Col. B Col. C
Nature of Amount
Indebtedness Outstanding Date Due
____________ ____________ _________
NOT APPLICABLE BY VIRTUE OF FORM T-1 GENERAL INSTRUCTION B
AND RESPONSE TO ITEM 13.
Item 13. Defaults by the obligors.
(a) State whether there is or has been a default with respect
to the securities under this indenture. Explain the nature of
any such default.
THERE IS NOT, NOR HAS THERE BEEN, A DEFAULT WITH RESPECT TO
THE SECURITIES UNDER THIS INDENTURE.
(b) If the trustee is a trustee under another indenture
under which any other securities, or certificates of
interest or participation in any other securities, of the
obligors are outstanding, or is trustee for more than one
outstanding series of securities under the indenture,
state whether there has been a default under any such
indenture or series, identify the indenture or series
affected, and explain the nature of any such default.
THERE HAS NOT BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR
SERIES.
Item 14. Affiliations with the underwriters.
If any underwriter is an affiliate of the trustee, describe each
such affiliation.
NOT APPLICABLE BY VIRTUE OF FORM T-1 GENERAL INSTRUCTION B
AND RESPONSE TO ITEM 13.
Item 15. Foreign trustee.
Identify the order or rule pursuant to which the foreign
trustee is authorized to act as sole trustee under indentures
qualified or to be qualified under the Act.
NOT APPLICABLE.
Item 16. List of exhibits.
List below all exhibits filed as a part of this statement
of eligibility.
1. A copy of the articles of incorporation of the trustee as
now in effect.
2. A copy of the certificate of authority of the trustee to
commence business.
3. Authorization of the trustee to exercise corporate trust
powers contained in Exhibit 2.
4. A copy of the existing by-laws of the trustee.
5. Not applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not applicable.
9. Not applicable.
<PAGE>
SIGNATURE
Pursuant to the requirement of the Trust Indenture Act of 1939
the trustee, First American Bank & Trust of Louisiana, a state
banking corporation organized and existing under the laws of the
State of Louisiana, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Monroe and State of Louisiana, on
the 17th day of March, 1994.
FIRST AMERICAN BANK & TRUST OF LOUISIANA
By: /s/ William W. Keith
____________________
WILLIAM W. KEITH
EXECUTIVE VICE PRESIDENT
and TRUST OFFICER
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Exhibit
1. A copy of the articles of incorporation
of the trustee as now in effect................ P
2. A copy of the certificate of authority
of the trustee to commence business............ P
3. Authorization of the trustee to exercise
corporate trust powers contained in
Exhibit 2...................................... P
4. A copy of the existing by-laws of the
trustee........................................ P
5. Not applicable.................................. P
6. The consent of the trustee required by
Section 321(b) of the Act...................... P
7. A copy of the latest report of condition
of the trustee published pursuant to law
or the requirements of its supervising
or examining authority......................... P
8. Not applicable.................................. P
9. Not applicable.................................. P