Exhibit 4.3
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EXECUTION COPY
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CCPR SERVICES, INC.,
as Issuer
and
CELLULAR COMMUNICATIONS OF PUERTO RICO, INC.,
as Guarantor
and
THE CHASE MANHATTAN BANK,
as Trustee
________________________________________
SERIES A AND SERIES B
10% SENIOR SUBORDINATED NOTES DUE 2007
________________________________________
___________________
INDENTURE
DATED AS OF January 31, 1997
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This Indenture, dated as of January 31, 1997, is among CCPR Services, Inc.,
a Delaware corporation ("Services" or the "Issuer"), Cellular Communications of
Puerto Rico, Inc., a Delaware corporation ("CCPR" or the "Guarantor") and The
Chase Manhattan Bank, a New York corporation, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and for
the equal and ratable benefit of the holders of Services' 10% Series A Senior
Subordinated Notes due 2007 (the "Series A Notes") and Services' 10% Series B
Senior Subordinated Notes due 2007 (the "Series B Notes" and, together with the
Series A Notes, the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Administrative Headquarters Lease" means the lease and leasehold
improvement for Services' administrative headquarters that are being constructed
in Guaynabo, Puerto Rico.
"Administrative Services Agreement" means that certain Administrative
Services Agreement by and among Services, CCPR and CoreComm as in effect on the
Issue Date.
"Affiliate" means, with respect to any specified Person, (i) any other
Person directly or indirectly controlling or controlled by, or under direct or
indirect common control with, such specified Person or (ii) any officer,
director, or controlling stockholder of such other Person. For purposes of this
definition, the term "control" means (a) the power to direct the management and
policies of a Person, directly or through one or more intermediaries, whether
through the ownership of voting securities, by contract or otherwise, or (b)
without limiting the foregoing, the beneficial ownership of 10% or more of the
voting power of the voting common equity of such Person (on a fully diluted
basis) or of warrants or other rights to acquire such equity (whether or not
presently exercisable).
"Agent" means any Registrar, Paying Agent or co-registrar.
"Annualized Operating Cash Flow" on any date, means with respect to any
Person, the Operating Cash Flow for the Reference Period multiplied by four.
"Annualized Operating Cash Flow Ratio" on any date (the "Transaction Date")
means, with respect to any Person and its Subsidiaries, the ratio of (i)
consolidated Indebtedness of such Person and its Subsidiaries on the Transaction
Date (after giving pro forma effect to the incurrence of such Indebtedness)
divided by (ii) the aggregate amount of Annualized Operating Cash Flow of such
Person (determined on a pro forma basis after giving effect to all acquisitions
or dispositions of businesses made by such Person and its Subsidiaries from the
beginning of the Reference Period through the Transaction Date as if such
acquisition or disposition had occurred at the beginning of such Reference
Period); provided, that for purposes of such computation, in calculating
Annualized Operating Cash Flow and consolidated Indebtedness, (a) the
transaction giving rise to the need to calculate the Annualized Operating Cash
Flow Ratio will be assumed to have occurred (on a pro forma basis) on the first
day of the Reference Period; (b) the incurrence of any Indebtedness during the
Reference Period or subsequent thereto and on or prior to the Transaction Date
(and the application of the proceeds therefrom to the extent used to retire
Indebtedness or to acquire businesses) will be assumed to have occurred (on a
pro forma basis) on the first day of such Reference Period; (c) Consolidated
Interest Expense attributable to any Indebtedness (whether existing or being
incurred) bearing a floating interest rate shall be computed as if the rate in
effect on the Transaction Date had been
the applicable rate for the entire period; and (d) all members of the
consolidated group of such Person on the Transaction Date that were acquired
during the Reference Period shall be deemed to be members of the consolidated
group of such Person for the entire Reference Period. When the foregoing
definition is used in connection with Services, CCPR and the Restricted
Subsidiaries, references to a Person in the foregoing definition shall be deemed
to refer to CCPR and references to Subsidiaries in the foregoing definition
shall be deemed to refer to Services and the Restricted Subsidiaries.
"Applicable Procedures" means, with respect to any transfer or exchange of
or for beneficial interests in any Global Note, the rules and procedures of the
Depositary, Euroclear and Cedel that apply to such transfer or exchange.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"Board of Directors" means the Board of Directors of Services or CCPR, as
applicable, or any authorized committee of the Board of Directors.
"Business Day" means any day other than a Legal Holiday.
"Capitalized Lease Obligations" means obligations under a lease that are
required to be capitalized for financial reporting purposes in accordance with
GAAP, and the amount of Indebtedness represented by such obligations shall be
the capitalized amount of such obligations, as determined in accordance with
GAAP.
"Capital Stock" means, with respect to any Person, any capital stock of
such Person and shares, interests, participations or other ownership interests
(however designated) of any Person and any rights (other than debt securities
convertible into capital stock), warrants and options to purchase any of the
foregoing, including (without limitation) each class of common stock and
preferred stock of such Person if such Person is a corporation and each general
and limited partnership interest of such Person if such Person is a partnership.
"Cash Equivalents" means (i) Securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) in each case maturing within
one year after the date of acquisition, (ii) time deposits and certificates of
deposit and commercial paper issued by the parent corporation of any domestic
commercial bank of recognized standing having capital and surplus in excess of
$500 million and commercial paper issued by others rated at least A-2 or the
equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody's
and in each case maturing within one year after the date of acquisition and
(iii) investments in money market funds substantially all of whose assets
comprise securities of the types described in clauses (i) and (ii) above.
"Change of Control" means (i) any sale, transfer or other conveyance,
whether direct or indirect, of a majority of the fair market value of the assets
of Services or CCPR, on a consolidated basis, in one transaction or a series of
related transactions, if, immediately after giving effect to such transaction,
any "person" or "group" (as such terms are used for purposes of Sections 13 (d)
and 14 (d) of the Exchange Act, whether or not applicable), other than an
Excluded Person or Excluded Group, is or becomes the "beneficial owner" (as such
term is used in Rule 13d-3 promulgated pursuant to the Exchange Act), directly
or indirectly, of more than 50% of the equity of the transferee, (ii) any
"person" or "group" (as such terms are used for purposes of Sections 13 (d) and
14 (d) of the Exchange Act, whether or not applicable), other than an Excluded
Person or Excluded Group, is or becomes the "beneficial owner" (as such term is
used in Rule 13d-3 promulgated pursuant to the Exchange Act), directly or
indirectly, of more than 50% of the equity of Services or CCPR then outstanding
normally entitled to vote in elections of directors, or (iii) during any period
of 12 consecutive months after the Issue Date, individuals who at the beginning
of any such 12-month period constituted the Board of Directors of Services or
CCPR (together with any new directors whose election by such Board or whose
nomination for election by the shareholders of Services or CCPR was approved by
a vote of a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason, other than as a
result of an authorized reduction in the number of directors that constitute the
Board of Directors, to constitute a majority of the Board of Directors of
Services or CCPR then in office at the time of such determination.
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"Change of Control Triggering Event" shall mean the occurrence of both a
Change of Control and a Rating Decline.
"Company" means CCPR and its Subsidiaries, including Services.
"Consolidated Interest Expense" of any Person means, for any period, the
aggregate amount (without duplication and determined in each case in accordance
with GAAP) of (a) interest expensed or capitalized, paid, accrued, or scheduled
to be paid or accrued (including, in accordance with the following sentence,
interest attributable to the Capitalized Lease Obligations) of such Person and
its consolidated Subsidiaries during such period, including (i) original issue
discount and non-cash interest payments or accruals on any Indebtedness, (ii)
the interest portion of all deferred payment obligations, and (iii) all
commissions, discounts and other fees and charges owed with respect to bankers'
acceptances and letters of credit financings and currency and Interest Swap and
Hedging Obligations, in each case to the extent attributable to such period, and
(b) the amount of dividends accrued or payable by such Person or any of its
consolidated Subsidiaries in respect of preferred stock (other than by
Restricted Subsidiaries of such Person to such Person or such Person's Wholly
Owned Subsidiaries). For purposes of this definition, (x) interest on a
Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined by Services or CCPR, as the case may be, to be the rate of
interest implicit in such Capitalized Lease Obligation in accordance with GAAP
and (y) interest expense attributable to any Indebtedness represented by the
guaranty by such Person or a Subsidiary of such Person of an obligation of
another Person shall be deemed to be the interest expense attributable to the
Indebtedness guaranteed. When the foregoing definition is used in connection
with Services, CCPR and the Restricted Subsidiaries, references to a Person in
the foregoing definition shall be deemed to refer to CCPR and references to
Subsidiaries in the foregoing definition shall be deemed to refer to Services
and the Restricted Subsidiaries.
"Consolidated Net Income" of any Person for any period means the net income
(or loss) of such Person and its consolidated Subsidiaries for such period
determined (on a consolidated basis) in accordance with GAAP, adjusted to
exclude (only to the extent included in computing such net income (or loss) and
without duplication) (i) all extraordinary gains and losses and gains and losses
that are nonrecurring (including as a result of Asset Sales outside the ordinary
course of business), (ii) the net income, if positive, of any Person, that is
not a Subsidiary in which such Person or any of its Subsidiaries has an
interest, except to the extent of the amount of dividends or distributions
actually paid to such Person or a Subsidiary of such Person that both (x) are
actually paid in cash to such Person or a Subsidiary of such Person during such
period and (y) when taken together with all other dividends and distributions
paid during such period in cash to such Person or a Subsidiary of such Person,
are not in excess of such Person's pro rata share of such other Person's
aggregate net income earned during such period, (iii) except as provided in the
definition of "Annualized Operating Cash Flow Ratio," the net income (or loss)
of any Subsidiary acquired in a pooling of interests transaction for any period
prior to the date of such acquisition and (iv) the net income, if positive, of
any Subsidiary of such Person to the extent that the declaration or payment of
dividends or similar distributions is not at the time permitted by operation of
the terms of its charter or any agreement or instrument applicable to such
Subsidiary. When the foregoing definition is used in connection with Services,
CCPR and the Restricted Subsidiaries, references to a Person in the foregoing
definition shall be deemed to refer to CCPR and references to Subsidiaries in
the foregoing definition shall be deemed to refer to Services and the Restricted
Subsidiaries.
"Corporate Trust Office" shall be at the address of the Trustee specified
in Section 12.02 hereof or such other address as to which the Trustee may give
notice to Services.
"Credit Agreement" means, at any time of determination, the credit facility
or loan agreement designated by Services to be the "Credit Agreement," as
amended, modified, renewed, refunded, replaced or refinanced in whole or in part
from time to time, which at no time will exceed $75 million. There can only be
one such credit facility or loan agreement designated to be the "Credit
Agreement" at any one time.
"Cumulative Interest Expense" means Consolidated Interest Expense of the
Company for the period beginning on February 1, 1997, through and including the
end of the last fiscal quarter preceding the date of any proposed Restricted
Payment.
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"Cumulative Operating Cash Flow" means Operating Cash Flow of the Company
for the period beginning on February 1, 1997, through and including the end of
the last fiscal quarter preceding the date of any proposed Restricted Payment.
"Default" means any event or condition that is, or after notice or passage
of time or both would be, an Event of Default.
"Definitive Note" means a Note registered in the name of the Holder thereof
and issued in accordance with Section 2.06 hereof, substantially in the form of
Exhibit A-1 hereto, except that such Note shall not bear the Global Note Legend
and shall not have the "Schedule of Exchanges of Interests in the Global Note"
attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in whole
or in part in global form, the Person specified in Section 2.03 hereof as the
Depositary with respect to the Notes, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"Designated Senior Debt" means (i) any Indebtedness outstanding under the
Credit Agreement and (ii) any other Senior Debt permitted under this Indenture,
the principal amount of which is $5 million or more and that has been designated
by Services as "Designated Senior Debt."
"Disqualified Capital Stock" means, with respect to any Person, Capital
Stock of such Person that, by its terms or by the terms of any security into
which it is convertible, exercisable or exchangeable, is, or upon the happening
of any event or the passage of time would be, required to be redeemed or
repurchased (including at the option of the holder thereof) by such Person or
any of its Subsidiaries, in whole or in part, on or prior to the date that is 91
days after the Stated Maturity of the Notes; provided that Capital Stock will
not be deemed to be Disqualified Capital Stock if it may only be so redeemed or
repurchased solely in consideration of Qualified Capital Stock of Services or
CCPR.
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Group" means a "group" (as such term is used in Sections 13 (d)
and 14 (d) of the Exchange Act) that includes one or more Excluded Persons;
provided that the voting power of the Capital Stock of Services or CCPR
"beneficially owned" (as such term is used in Rule 13d-3 promulgated under the
Exchange Act) by such Excluded Persons (without attribution to such Excluded
Persons of the ownership by other members of the "group") represents a majority
of the voting power of the Capital Stock "beneficially owned" (as such term is
used in Rule 13d-3 promulgated under the Exchange Act) by such group.
"Excluded Person" means (i) Xxxxxx X. Xxxxxxxxxx, (ii) J. Xxxxxxx Xxxxx,
(iii) a Permitted Designee of Xx. Xxxxxxxxxx or Xx. Xxxxx and (iv) CoreComm and
any Subsidiary or successor thereto.
"Existing Indebtedness" means Indebtedness of Services, CCPR or the
Restricted Subsidiaries in existence and outstanding on the Issue Date.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board ("FASB") or, if FASB ceases to exist,
any successor thereto; provided, however, that for purposes of determining
compliance with covenants in this Indenture, "GAAP" means such generally
accepted accounting principles as in effect as of the Issue Date.
"Global Note" means the Rule 144A Global Note, the IAI Global Note and the
Regulation S Global Note.
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"Global Note Legend" means the legend set forth in Section 2.06(g)(ii) to
be placed on all Global Notes issued under this Indenture.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged.
"Guarantee" means CCPR's guarantee under this Indenture.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" of any Person means, without duplication, (a) all
liabilities and obligations, contingent or otherwise, of such Person, (i) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion thereof), (ii) evidenced
by bonds, notes, debentures or similar instruments, (iii) representing the
balance deferred and unpaid of the purchase price of any property or services,
except (other than accounts payable or other obligations to trade creditors
which have remained unpaid for greater than 90 days past their original due date
or to financial institutions, which obligations are not being contested in good
faith and for which appropriate reserves have been established) those incurred
in the ordinary course of its business that would constitute ordinarily a trade
payable to trade creditors, (iv) evidenced by bankers' acceptances or similar
instruments issued or accepted by banks, (v) for the payment of money relating
to a Capitalized Lease Obligation, or (vi) evidenced by a letter of credit or a
reimbursement obligation of such Person with respect to any letter of credit;
(b) all obligations of such Person under Interest Swap and Hedging Obligations;
(c) all liabilities of others of the kind described in the preceding clauses (a)
or (b) that such Person has guaranteed or that is otherwise its legal liability
or which are secured by any assets or property of such Person and all
obligations to purchase, redeem or acquire any Capital Stock; (d) all
Disqualified Capital Stock of such Person and all preferred stock of such
Person's Subsidiaries; and (e) any and all deferrals, renewals, extensions,
refinancing and refundings (whether direct or indirect) of, or amendments,
modifications or supplements to, any liability of the kind described in any of
the preceding clauses (a), (b), (c) or (d) or this clause (e), whether or not
between or among the same parties; provided that the outstanding principal
amount at any date of any Indebtedness issued with original issue discount is
the face amount of such Indebtedness less the remaining unamortized portion of
the original issue discount of such Indebtedness at such date.
"IAI Global Note" means the Global Note in the form of Exhibit A-1 hereto
bearing the Global Note Legend and the Private Placement Legend and deposited
with and registered in the name of the Depositary or its nominee that will be
issued in a denomination equal to the outstanding principal amount of the Notes
sold to Institutional Accredited Investors.
"Indirect Participant" means a Person who holds a beneficial interest in a
Global Note through a Participant.
"Initial Purchasers" means Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, Salomon Brothers Inc and Xxxxxxxxxxx Xxxxxxx & Co., Inc.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Interest Swap and Hedging Obligations" means any obligations of any Person
pursuant to any interest rate swaps, caps, collars and similar arrangements
providing protection against fluctuations in interest rates. For purposes of
this Indenture, the amount of such obligations shall be the amount determined in
respect thereof as of the end of the then most recently ended fiscal quarter of
such Person, based on the assumption that such obligation had terminated at the
end of such fiscal quarter, and in making such determination, if any agreement
relating to such obligation provides for the netting of amounts payable by and
to such Person thereunder or if any such agreement provides for the simultaneous
payment of amounts by and to such Person, then in each such case, the amount of
such obligations shall be the net amount so determined, plus any premium due
upon default by such Person.
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"Investment" by any Person in any other Person means, without duplication,
(a) the acquisition (whether by purchase, merger, consolidation or otherwise) by
such Person (whether for cash, property, services, securities or otherwise) of
capital stock, bonds, notes, debentures, partnership or other ownership
interests or other securities of such other Person or any agreement to make any
such acquisition; (b) the making by such Person of any deposit with, or advance,
loan or other extension of credit to, such other Person (including the purchase
of property from another Person subject to an understanding or agreement,
contingent or otherwise, to resell such property to such other Person) or any
commitment to make any such advance, loan or extension; (c) the entering into by
such Person of any guarantee of, or other contingent obligation with respect to,
Indebtedness or other liability of such other Person; (d) the making of any
capital contribution by such Person to such other Person; and (e) the
designation by the Board of Directors of Services or CCPR of any Person to be an
Unrestricted Subsidiary. For purposes of Section 4.05 hereof, (i) "Investment"
shall include and be valued at the fair market value of the net assets of any
Restricted Subsidiary at the time that such Restricted Subsidiary is designated
an Unrestricted Subsidiary and shall exclude the fair market value of the net
assets of any Unrestricted Subsidiary at the time that such Unrestricted
Subsidiary is designated a Restricted Subsidiary and (ii) the amount of any
Investment shall be the fair market value of such Investment plus the fair
market value of all additional Investments by Services, CCPR or any of the
Restricted Subsidiaries at the time any such Investment is made; provided that,
for purposes of this sentence, the fair market value of net assets in excess of
$5,000,000 shall be as determined by an independent appraiser of national
reputation.
"Investment Grade" means BBB or higher by S&P or Baa3 or higher by Moody's
or the equivalent of such ratings by S&P or Moody's. In the event that Services
shall be permitted to select any other Rating Agency, the equivalent of such
ratings by such Rating Agency shall be used.
"Issue Date" means the date of the first issuance of the Notes under this
Indenture.
"Junior Indebtedness" means Indebtedness of Services that (i) requires no
payment of principal prior to or on the date on which all principal of and
interest on the Notes is paid in full and (ii) is subordinate and junior in
right of payment to the Notes in all respects.
"Letter of Transmittal" means the letter of transmittal to be prepared by
Services and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
"Legal Holiday" means a Saturday, a Sunday or a day on which commercial
banks in The City of New York or at a place of payment are authorized or
required by law, regulation or executive order to remain closed.
"Lien" means any mortgage, lien, pledge, charge, security interest, or
other encumbrance of any kind, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title
retention agreement and any lease deemed to constitute a security interest and
any option or other agreement to give any security interest).
"Liquidated Damages" means all liquidated damages then owing pursuant to
Section 5 of the Registration Rights Agreement.
"Maturity Date" means, when used with respect to any Note, the date
specified on such Note as the fixed date on which the final installment of
principal of such Note is due and payable (in the absence of any acceleration
thereof pursuant to Sections 4.13, 4.14 and 6.02 hereof).
"Moody's" means Xxxxx'x Investors Service, Inc.
"Net Cash Proceeds" means the aggregate amount of cash and Cash Equivalents
received by Services, CCPR and the Restricted Subsidiaries in respect of an
Asset Sale (including upon the conversion to cash and Cash Equivalents of (A)
any note or installment receivable at any time or (B) any other property as and
when any cash and Cash Equivalents are received in respect of any property
received in an Asset Sale but only to the extent such cash and Cash Equivalents
are received within one year after such Asset Sale), less the sum of (i) all
reasonable out-of-pocket fees, commissions and other expenses incurred in
connection with such Asset Sale, including the
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amount (estimated in good faith by the Board of Directors of Services or CCPR,
as the case may be) of income, franchise, sales and other applicable taxes
required to be paid by Services, CCPR or any Restricted Subsidiary in connection
with such Asset Sale and (ii) the aggregate amount of cash so received which is
used to retire any existing Senior Debt of Services or CCPR or Indebtedness of
the Restricted Subsidiaries, as the case may be, which is required to be repaid
in connection with such Asset Sale or is secured by a Lien on the property or
assets of Services, CCPR or any of the Restricted Subsidiaries, as the case may
be.
"Net Pops" of any Person with respect to any System means the Pops of the
area served by such System multiplied by the direct and/or indirect percentage
interest of such Person in the entity licensed or designated to receive an
authorization by the Federal Communications Commission or another appropriate
governmental regulatory authority to construct or operate a System in that area.
"Net Proceeds" means the aggregate net proceeds (including the fair market
value of non-cash proceeds constituting equipment or other assets of a type
generally used in a Related Business in an amount reasonably determined by the
Board of Directors of Services or CCPR for amounts under $5,000,000 and by a
financial advisor or appraiser of national reputation for equal or greater
amounts) received by a Person from the sale of Qualified Capital Stock (other
than to a Subsidiary of such Person) after payment of out-of-pocket expenses,
commissions and discounts incurred in connection therewith.
"Non-Recourse Restricted Subsidiary" means any Person that would otherwise
be a Restricted Subsidiary of Services or CCPR but is designated as a Non-
Recourse Restricted Subsidiary in a resolution of the Board of Directors of
Services or CCPR, so long as no portion of the Indebtedness or any other
obligation (contingent or otherwise) of such Person (i) is guaranteed by
Services, CCPR or any of the Subsidiaries, (ii) is recourse to or obligates
Services, CCPR or any of the Subsidiaries in any way or (iii) subjects any
property or asset of Services, CCPR or any of the Subsidiaries, directly or
indirectly, contingently or otherwise, to the satisfaction of any portion of
such Indebtedness or other obligations.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Custodian" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"Obligation" means any principal, premium, interest (including interest
accruing subsequent to a bankruptcy or other similar proceeding whether or not
such interest is an allowed claim enforceable against Services in a bankruptcy
case under Federal bankruptcy law), penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable pursuant to the terms of
the documentation governing any Indebtedness.
"Offer" means a Change of Control Offer pursuant to Section 4.13 hereof or
an Asset Sale Offer pursuant to Section 4.14 hereof.
"Offering Memorandum" means the Offering Memorandum of Services, dated
January 28, 1997, relating to the Notes.
"Officer" means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of Services or
CCPR, as applicable, by two Officers of Services or CCPR, as applicable, one of
whom must be the principal executive officer, the principal financial officer,
the treasurer or the principal accounting officer of Services or CCPR, as
applicable, that meets the requirements of Section 12.05 hereof.
"Operating Cash Flow" of any Person means (a), with respect to any period,
the Consolidated Net Income of such Person for such period, plus (b) the sum,
without duplication (and only to the extent such amounts are deducted from net
revenues in determining such Consolidated Net Income), of (i) the provisions for
income taxes
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for such period for such Person and its consolidated Subsidiaries, (ii)
depreciation, amortization and other non-cash charges of such Person and its
consolidated Subsidiaries and (iii) Consolidated Interest Expense of such Person
for such period, determined, in each case, on a consolidated basis for such
Person and its consolidated Subsidiaries in accordance with GAAP, less (c) the
amount of all cash payments made during such period by such Person and its
Subsidiaries to the extent such payments relate to non-cash charges that were
added back in determining Operating Cash Flow for such period or for any prior
period. When the foregoing definition is used in connection with Services, CCPR
and the Restricted Subsidiaries, references to a Person in the foregoing
definition shall be deemed to refer to CCPR and references to Subsidiaries in
the foregoing definition shall be deemed to refer to Services and the Restricted
Subsidiaries.
"Opinion of Counsel" means an opinion from legal counsel who is reasonably
acceptable to the Trustee, that meets the requirements of Section 12.05 hereof.
The counsel may be an employee of or counsel to Services, CCPR, any Subsidiary
of Services or CCPR or the Trustee.
"Participant" means, with respect to DTC, Euroclear or Cedel, a Person who
has an account with DTC, Euroclear or Cedel, respectively (and, with respect to
DTC, shall include Euroclear and Cedel).
"Permitted Designee" means (i) a spouse or a child of a Permitted Holder,
(ii) trusts for the benefit of a Permitted Holder or a spouse or child of a
Permitted Holder, (iii) in the event of the death or incompetence of a Permitted
Holder, his estate, heirs, executor, administrator, committee or other personal
representative or (iv) any Person so long as a Permitted Holder owns at least
50% of the voting power of all classes of the voting stock of such Person.
"Permitted Holders" means Xxxxxx X. Xxxxxxxxxx, J. Xxxxxxx Xxxxx and their
Permitted Designees.
"Permitted Investment" means (i) Investments in Cash Equivalents; (ii)
Investments in Services, CCPR or a Restricted Subsidiary (other than a Non-
Recourse Restricted Subsidiary); (iii) Investments in a Person substantially all
of whose assets are of a type generally used in a Related Business (an "Acquired
Person") if, as a result of such Investments, (A) the Acquired Person
immediately thereupon becomes a Restricted Subsidiary (other than a Non-Recourse
Restricted Subsidiary) or (B) the Acquired Person immediately thereupon either
(1) is merged or consolidated with or into Services, CCPR or any of the
Restricted Subsidiaries (other than a Non-Recourse Restricted Subsidiary) and
the surviving Person is Services, CCPR or a Restricted Subsidiary (other than a
Non-Recourse Restricted Subsidiary) or (2) transfers or conveys all or
substantially all of its assets to, or is liquidated into, Services, CCPR or any
of the Restricted Subsidiaries (other than a Non-Recourse Restricted
Subsidiary); (iv) Investments in accounts and notes receivable acquired in the
ordinary course of business; (v) any securities received in connection with an
Asset Sale (other than those of a Non-Recourse Restricted Subsidiary) and any
investment with the Net Cash Proceeds from any Asset Sale in Capital Stock of a
Person, all or substantially all of whose assets are of a type used in a Related
Business, that complies with Section 4.14 hereof; (vi) any Investment pursuant
to the terms of the agreements described in or referred to in the Offering
Memorandum under the caption "Reorganization" or "Certain Relationships and
Related Transactions," as such agreements were in effect on the Issue Date;
(vii) any guarantee issued by a Restricted Subsidiary in respect of Senior Debt,
or in respect of Indebtedness described in Section 4.07(b)(ix), in each case
incurred in compliance with this Indenture; (viii) advances and prepayments for
asset purchases in the ordinary course of business in a Related Business of
Services, CCPR or a Restricted Subsidiary; (ix) Investments in Non-Recourse
Restricted Subsidiaries with the proceeds of contributions irrevocably and
unconditionally received without restriction by Services from CCPR; and (x)
customary loans or advances made in the ordinary course of business to officers,
directors or employees of Services, CCPR or any of the Restricted Subsidiaries
for travel, entertainment and moving and other relocation expenses.
"Permitted Junior Securities" means Equity Interests in Services or debt
securities that are subordinated to all Senior Debt (and any debt securities
issued in exchange for Senior Debt) to substantially the same extent as, or to a
greater extent than, the Notes are subordinated to Senior Debt pursuant to this
Indenture.
"Permitted Lien" means (a) Liens existing on the Issue Date; (b) Liens
imposed by governmental authorities for taxes, assessments or other charges not
yet subject to penalty or which are being contested in good faith and by
appropriate proceedings, if adequate reserves with respect thereto are
maintained on the books of Services or
8
CCPR in accordance with GAAP; (c) statutory liens of carriers, warehousemen,
mechanics, materialmen, landlords, repairmen or other like Liens arising by
operation of law in the ordinary course of business provided that (i) the
underlying obligations are not overdue for a period of more than 30 days and
(ii) such Liens are being contested in good faith and by appropriate proceedings
and adequate reserves with respect thereto are maintained on the books of
Services or CCPR in accordance with GAAP; (d) Liens securing the performance of
bids, trade contracts (other than borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of
a like nature incurred in the ordinary course of business; (e) easements,
rights-of-way, zoning, similar restrictions and other similar encumbrances or
title defects which, singly or in the aggregate, do not in any case materially
detract from the value of the property, subject thereto (as such property is
used by Services, CCPR or any of the Restricted Subsidiaries) or interfere with
the ordinary conduct of the business of Services, CCPR or any of the Restricted
Subsidiaries; (f) Liens arising by operation of law in connection with
judgments, only to the extent, for an amount and for a period not resulting in
an Event of Default with respect thereto; (g) pledges or deposits made in the
ordinary course of business in connection with worker's compensation,
unemployment insurance and other types of social security legislation; (h) Liens
in favor of the Trustee arising under this Indenture; (i) Liens securing Senior
Debt that was incurred in accordance with Section 4.07; (j) Liens securing
Indebtedness of a Person existing at the time such Person becomes a Restricted
Subsidiary or is merged with or into Services, CCPR or a Restricted Subsidiary,
provided that such Liens were in existence prior to the date of such
acquisition, merger or consolidation, were not incurred in anticipation thereof,
and do not extend to any other assets; (k) Liens arising from Purchase Money
Indebtedness permitted under this Indenture; (l) Liens securing Refinancing
Indebtedness incurred to refinance any Indebtedness that was previously so
secured in a manner no more adverse to the Holders of the Notes than the terms
of the Liens securing such refinanced Indebtedness; and (m) Liens in favor of
Services, CCPR or a Wholly Owned Restricted Subsidiary.
"Person" means any corporation, individual, joint stock company, joint
venture, partnership, limited liability company, unincorporated association,
governmental regulatory entity, country, state or political subdivision thereof,
trust, municipality or other entity.
"Pops" means the estimate of the population of an area as derived from the
most recent Rand XxXxxxx Commercial Atlas or if such statistics are no longer
printed in the Rand XxXxxxx Commercial Atlas or the Rand XxXxxxx Commercial
Atlas is not published, such other recognized source of such information.
"Private Placement Legend" means the legend set forth in Section 2.06(g)(i)
to be placed on all Notes issued under this Indenture except as otherwise
permitted by the provisions of this Indenture.
"Purchase Agreement" means that certain purchase agreement dated January
28, 1997 by and among Services, CCPR and the Initial Purchasers.
"Purchase Money Indebtedness" means Indebtedness of Services, CCPR or the
Restricted Subsidiaries incurred in connection with the purchase of property or
assets for the business of Services, CCPR or the Restricted Subsidiaries,
provided, that the recourse of the lenders with respect to such Indebtedness is
limited solely to the property or assets so purchased without further recourse
to either Services, CCPR or any of the Restricted Subsidiaries.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Qualified Capital Stock" means any Capital Stock of a Person that is not
Disqualified Capital Stock.
"Rating Agencies" means (i) S&P and (ii) Xxxxx'x and (iii) if S&P or
Xxxxx'x or both shall not make a rating of the Notes publicly available, a
nationally recognized securities rating agency or agencies, as the case may be,
selected by Services, which shall be substituted for S&P or Xxxxx'x or both, as
the case may be.
"Rating Category" means (i) with respect to S&P, any of the following
categories: BB, B, CCC, CC, C and D (or equivalent successor categories); (ii)
with respect to Xxxxx'x, any of the following categories: Ba, B, Caa, Ca, C and
D (or equivalent successor categories); and (iii) the equivalent of any such
category of S&P or Xxxxx'x used by another Rating Agency. In determining
whether the rating of the Notes has decreased by one or
9
more gradations, gradations within Rating Categories (+ and - for S&P; 1, 2 and
3 for Xxxxx'x; or the equivalent gradations for another Rating Agency) shall be
taken into account (e.g. with respect to S&P, a decline in a rating from BB to
BB-, as well as from BB- to B+, will constitute a decrease of one gradation).
"Rating Date" means that date which is 90 days prior to the earlier of (x)
a Change of Control and (y) public notice of the occurrence of a Change of
Control or the intention by Services or CCPR to effect a Change of Control.
"Rating Decline" shall mean the occurrence on, or within six months after,
the date of public notice of the occurrence of a Change of Control or the
intention by Services to effect a Change of Control (which period shall be
extended so long as the rating of the Notes is under publicly announced
consideration for possible downgrade by any of the Rating Agencies) of any of
the following events: (a) in the event the Notes are rated by both Xxxxx'x and
S&P on the Rating Date as Investment Grade, the rating of the Notes by either
Rating Agency shall be below Investment Grade, (b) in the event the Notes are
rated by either, but not both, of the Rating Agencies on the Rating Date as
Investment Grade, the rating of the Notes by such Rating Agency shall be below
Investment Grade, or (c) in the event the Notes are rated below Investment Grade
by both Rating Agencies on the Rating Date, the rating of the Notes by either
Rating Agency shall be decreased by one or more gradations (including gradations
within Rating Categories as well as between Rating Categories).
"Reference Period" with regard to any Person means the last full fiscal
quarter of such Person for which financial information (which Services and CCPR,
as the case may be, shall use their best efforts to compile in a timely manner)
in respect thereof is available ended on or immediately preceding any date upon
which any determination is to be made pursuant to the terms of the Notes or this
Indenture.
"Refinancing Indebtedness" means Indebtedness or Disqualified Capital Stock
(a) issued in exchange for, or the proceeds from the issuance and sale of which
are used substantially concurrently to repay, redeem, defease, refund,
refinance, discharge or otherwise retire for value, in whole or in part, or (b)
constituting an amendment, modification or supplement to, or a deferral or
renewal of ((a) and (b) above are, collectively, a "Refinancing"), any
Indebtedness or Disqualified Capital Stock in a principal amount or, in the case
of Disqualified Capital Stock, liquidation preference (or if such Indebtedness
or Disqualified Capital Stock does not require cash payments prior to maturity
or is otherwise issued at a discount, the original issue price of such
Indebtedness or Disqualified Capital Stock), not to exceed the sum of (x) the
lesser of (i) the principal amount or, in the case of Disqualified Capital
Stock, liquidation preference, of the Indebtedness or Disqualified Capital Stock
so Refinanced and (ii) if such Indebtedness being Refinanced was issued with an
original issue discount, the accreted value thereof (as determined in accordance
with GAAP) at the time of such Refinancing, (y) the amount of any premium
required to be paid in connection with such refinancing pursuant to the terms of
such Indebtedness and (z) all other customary fees and expenses of Services,
CCPR or such Restricted Subsidiary reasonably incurred in connection with such
refinancing; provided, that (A) Refinancing Indebtedness issued by any
Restricted Subsidiary shall only be used to Refinance outstanding Indebtedness
or Disqualified Capital Stock of such Restricted Subsidiary, (B) Refinancing
Indebtedness shall (x) not have a Weighted Average Life shorter than the
Indebtedness or Disqualified Capital Stock to be so refinanced at the time of
such Refinancing and (y) in all respects, be no less subordinated or junior, if
applicable, to the rights of Holders of the Notes than was the Indebtedness or
Disqualified Capital Stock to be refinanced and (C) such Refinancing
Indebtedness shall have no installments of principal (or redemption payment)
scheduled to come due earlier than the scheduled maturity of any installment of
principal (or redemption payment) of the Indebtedness or Disqualified Capital
Stock to be so refinanced which was scheduled to come due prior to the Stated
Maturity of the Notes.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of January 31, 1997 by and among Services, CCPR and the Initial
Purchasers, as such agreement may be amended, modified or supplemented from time
to time.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a Regulation S Temporary Global Note or
Regulation S Permanent Global Note, as appropriate.
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"Regulation S Permanent Global Note" means a permanent global note that is
deposited with and registered in the name of the Depositary or its nominee,
representing a series of Notes sold in reliance on Regulation S.
"Regulation S Temporary Global Note" means a single temporary global note
that is deposited with and registered in the name of the Depositary or its
nominee, representing a series of Notes sold in reliance on Regulation S.
"Related Business" means any business directly related to the ownership,
development, operation or acquisition of communications or media systems or
services.
"Related Person" means, with respect to any Person, (i) any Affiliate of
such Person or any spouse, immediate family member, or other relative who has
the same principal residence of any Affiliate of such Person and (ii) any trust
in which any Person described in clause (i) above have a beneficial interest.
"Representative" means the indenture trustee or other trustee, agent or
representative for any Senior Debt.
"Responsible Officer" means, when used with respect to the Trustee, any
officer within the Corporate Trust Department of the Trustee (or any successor
group of the Trustee) or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note that bears the Private
Placement Legend.
"Restricted Global Note" means the Rule 144A Global Note, the IAI Global
Note and the Regulation S Global Note, each of which shall bear the Private
Placement Legend.
"Restricted Payment" means, with respect to any Person, (i) any dividend or
other distribution on shares of Capital Stock of such Person or any Subsidiary
of such Person, (ii) any payment on account of the purchase, redemption or other
acquisition or retirement for value, or any payment in respect of any amendment
(in anticipation of or in connection with any such retirement, acquisition or
defeasance) in whole or in part, of any shares of Capital Stock of such Person
or any Subsidiary of such Person held by Persons other than such Person or any
of its Restricted Subsidiaries, (iii) any defeasance, redemption, repurchase or
other acquisition or retirement for value, or any payment in respect of any
amendment (in anticipation of or in connection with any such retirement,
acquisition or defeasance) in whole or in part, of any Indebtedness of Services
or CCPR (other than the scheduled repayment thereof at maturity and any
mandatory redemption or mandatory repurchase thereof pursuant to the terms
thereof) by such Person or a Subsidiary of such Person that is subordinate in
right of payment to the Notes (other than in exchange for Refinancing
Indebtedness permitted to be incurred under this Indenture and except for any
such defeasance, redemption, repurchase, other acquisition or payment in respect
of Indebtedness held by any Restricted Subsidiary) and (iv) any Investment
(other than a Permitted Investment); provided, however, that the term
"Restricted Payment" does not include (i) any dividend, distribution or other
payment on shares of Capital Stock of Services, CCPR or any Restricted
Subsidiary solely in shares of Qualified Capital Stock, (ii) any dividend,
distribution or other payment to Services, CCPR, or any dividend to any of the
Restricted Subsidiaries by any of the Subsidiaries, (iii) any dividend,
distribution or other payment by any Restricted Subsidiary on shares of its
Capital Stock that is paid pro rata to all holders of such Capital Stock and
(iv) the purchase, redemption or other acquisition or retirement for value of
shares of Capital Stock of any Restricted Subsidiary (other than Non-Recourse
Restricted Subsidiaries) held by Persons other than Services, CCPR or any of the
Restricted Subsidiaries.
"Restricted Period" means the 40-day restricted period as defined in
Regulation S.
"Restricted Subsidiary" means any Subsidiary of CCPR or any future
subsidiary of Services which at the time of determination is not an Unrestricted
Subsidiary. The Board of Directors of CCPR or Services, as the case may be, may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary only if,
immediately before and after giving effect to such designation, there would
exist no Default or Event of Default and CCPR or Services, as
11
the case may be, could incur at least $1.00 of Indebtedness pursuant to Section
4.07(a) hereof, on a pro forma basis taking into account such designation.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 144A Global Note" means a permanent global note that is deposited
with and registered in the name of the Depositary or its nominee, representing a
series of Notes sold in reliance on Rule 144A or another exemption from the
registration requirements of the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"S&P" means Standard & Poor's Rating Group and its successors.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means all Indebtedness of Services or CCPR (including, with
respect to the Credit Agreement, all Obligations thereunder), including interest
thereon, whether outstanding on the Issue Date or thereafter incurred, other
than (a) Indebtedness that is expressly subordinated or junior in right of
payment to any Indebtedness of Services or CCPR, (b) Indebtedness represented
by Disqualified Capital Stock, (c) any liability for federal, state, local or
other taxes owed or owing by Services or CCPR, (d) Indebtedness of Services or
CCPR to any Subsidiary of Services or CCPR or any Affiliate of Services or CCPR
(other than Purchase Money Indebtedness constituting at least 75% but not more
than 100% of the cost of wireless cellular communication system equipment and
other related fixed assets, incurred in compliance with Section 4.07 hereof),
(e) trade payables and (f) Indebtedness incurred in violation of this Indenture.
"Significant Restricted Subsidiary" means one or more Restricted
Subsidiaries having an aggregate net book value of assets in excess of 5% of the
net book value of the assets of CCPR, Services and the Restricted Subsidiaries
on a consolidated basis.
"Stated Maturity" means the date fixed for the payment of any principal or
premium pursuant to this Indenture and the Notes, including the Maturity Date,
upon redemption, acceleration, Asset Sale Offer, Change of Control Offer or
otherwise.
"Strategic Equity Investor" means any company, or a controlled Affiliate of
any company, which is engaged principally in a cable or telecommunications
business; provided, however, that a Strategic Equity Investor shall not include
(x) any Subsidiary of CCPR or Services or (y) any Person that is an Affiliate of
CCPR or Services.
"Subsidiary" with respect to any Person, means (i) a corporation at least
fifty percent of whose Capital Stock with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly, owned
by such Person, by such Person and one or more Subsidiaries of such Person or by
one or more Subsidiaries of such Person, or (ii) a partnership in which such
Person or a Subsidiary of such Person is, at the time, a general partner of such
partnership, or (iii) any Person in which such Person, one or more Subsidiaries
of such Person, or such Person and one or more Subsidiaries of such Person,
directly or indirectly, at the date of determination thereof has (x) at least a
fifty percent ownership interest or (y) the power to elect or direct the
election of the directors or other governing body of such Person.
"System" means a wireless communications system.
"Tax Sharing Agreement" means that certain Tax Sharing Agreement by and
among Services, CCPR and the Restricted Subsidiaries as in effect on the Issue
Date.
12
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-
77bbbb) as in effect on the date on which this Indenture is qualified under the
TIA.
"Unrestricted Definitive Note" mean a Definitive Note that does not bear
the Private Placement Legend.
"Unrestricted Global Note" means one or more Global Notes that do not and
are not required to bear the Private Placement Legend and are deposited with and
registered in the name of the Depositary or its nominee.
"Unrestricted Subsidiary" shall mean any Subsidiary of CCPR or any future
Subsidiary of Services that, at the time of determination, shall be an
Unrestricted Subsidiary (as designated by the Board of Directors of CCPR or
Services, as the case may be, as provided below). The Board of Directors of
CCPR or Services, as the case may be, may designate any Subsidiary of CCPR or
Services, as the case may be, (including any newly acquired or newly formed
Subsidiary at or prior to the time it is so formed or acquired) to be an
Unrestricted Subsidiary if (a) no Default or Event of Default is existing or
will occur as a consequence thereof, (b) such Subsidiary does not own any
Capital Stock of, or own or hold any Lien on any property or asset of, Services,
CCPR or any Restricted Subsidiary that is not a Subsidiary of the Subsidiary to
be so designated and (c) such Subsidiary and each of its Subsidiaries has not at
the time of designation, and does not thereafter, create, incur, issue, assume,
guarantee, or otherwise become directly or indirectly liable with respect to any
Indebtedness pursuant to which the lender has recourse to any property or assets
of Services, CCPR or any of the Restricted Subsidiaries (except that such
Subsidiary and its Subsidiaries may guarantee the Notes); provided that either
(A) the Subsidiary to be so designated has total assets of $1,000 or less or (B)
if such Subsidiary has assets greater than $1,000, that such designation would
be permitted under Section 4.05 hereof. Each such designation shall be
evidenced by filing with the Trustee a certified copy of the resolution giving
effect to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing conditions.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"Weighted Average Life" means, as of the date of determination, with
respect to any debt instrument, the quotient obtained by dividing (i) the sum of
the products of the numbers of years from the date of determination to the dates
of each successive scheduled principal payment of such debt instrument
multiplied by the amount of each such respective principal payment by (ii) the
sum of all such principal payments.
"Wholly Owned" means, with respect to a Subsidiary of Services or CCPR, (i)
a Subsidiary that is a corporation, of which not less than 99% of the Capital
Stock (except for directors' qualifying shares or certain minority interests
owned by other Persons solely due to local law requirements that there be more
than one stockholder, but which interest is not in excess of what is required
for such purpose) is owned directly by such Person or through one or more other
Wholly Owned Subsidiaries of such Person, or (ii) any entity other than a
corporation in which such Person, directly or indirectly, owns not less than 99%
of the Capital Stock of such entity.
Section 1.02. Other Definitions.
Defined in
Term Section
"Acceleration Notice"............................. 6.02
"Accredited Investors"............................ 2.01
"Additional Guarantee"............................ 4.15
"Additional Guarantor"............................ 4.15
"Asset Sale"...................................... 4.14
"Asset Sale Offer"................................ 4.14
"Asset Sale Offer Amount"......................... 4.14
"Asset Sale Offer Period"......................... 3.09
"Asset Sale Offer Price".......................... 4.14
"Asset Sale Payment Date"......................... 3.09
"Asset Sale Purchase Date"........................ 3.09
"Cedel Bank"...................................... 2.01
13
"Covenant Defeasance"............................. 8.03
"Change of Control Offer"......................... 4.13
"Change of Control Payment"....................... 4.13
"Change of Control Payment Date".................. 4.13
"Custodian"....................................... 6.01
"DTC"............................................. 2.03
"Euroclear"....................................... 2.01
"Event of Default"................................ 6.01
"Global Note Holder".............................. 2.01
"Institutional Accredited Investors".............. 2.01
"Legal Defeasance"................................ 8.02
"Other Indebtedness".............................. 4.15
"Paying Agent".................................... 2.03
"Payment Blockage Notice"......................... 10.03
"Purchase Date"................................... 3.09
"Registrar"....................................... 2.03
"Related Person Transaction"...................... 4.08
"Strategic Equity Investor"....................... 3.07
"Trustee Expenses"................................ 6.08
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in, and made a part of, this Indenture. Any terms
incorporated by reference in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule under the TIA have
the meanings so assigned to them therein.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein;
(2) an accounting term not otherwise defined herein has the meaning
assigned to it under GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include
the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibits A-1 and A-2 attached hereto. The Notes
may have notations, legends or endorsements required by law, stock exchange rule
or usage. Each Note shall be dated the date of its authentication. The Notes
shall be issued in minimum denominations of $1,000 and integral multiples of
$1,000 in excess thereof. The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture and
Services, CCPR and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
14
(a) Global Notes. Series A Notes offered and sold to (i) QIBs in reliance
on Rule 144A, (ii) Institutional Accredited Investors that are not QIBs, and
(iii) accredited investors as defined in Rule 501(a)(4), (5) or (6) under the
Securities Act ("Accredited Investors"), shall be issued initially in the form
of the Rule 144A Global Note which, in each case, shall be deposited on behalf
of the purchasers of the Series A Notes represented thereby with the Depositary
or its nominee at its New York office, and registered in the name of the
Depositary or a nominee of the Depositary (the "Global Note Holder"), duly
executed by Services and authenticated by the Trustee as hereinafter provided.
The aggregate principal amount of the Rule 144A Global Notes may from time to
time be increased or decreased by adjustments made on the records of the Trustee
and the Depositary or its nominee, as the case may be, in connection with
transfers of interest as hereinafter provided.
Series A Notes offered and sold in reliance on Regulation S as provided in
the Purchase Agreement shall be issued initially in the form of the Regulation S
Temporary Global Note and shall be deposited on behalf of the purchasers of the
Notes represented thereby with the Trustee, at its New York office, as custodian
for the Depositary, and registered in the name of the Depositary or the nominee
of the Depositary for the accounts of designated agents holding on behalf of
Euroclear System ("Euroclear") or Cedel Bank, societe anonyme ("Cedel Bank")
duly executed by Services and authenticated by the Trustee as hereinafter
provided. The "40-day restricted period" (as defined in Regulation S) shall be
terminated upon the receipt by the Trustee of (i) a written certificate from the
Depositary, together with copies of certificates from Euroclear and Cedel Bank
certifying that they have received certification of non-United States beneficial
ownership of 100% of the aggregate principal amount of the Regulation S
Temporary Global Note (except to the extent of any beneficial owners thereof who
acquired an interest therein pursuant to another exemption from registration
under the Securities Act and who will take delivery of a beneficial ownership
interest in a Rule 144A Global Note, all as contemplated by Section 2.06(b)(ii)
hereof), and (ii) an Officers' Certificate from Services. Following the
termination of the 40-day restricted period, beneficial interests in the
Regulation S Temporary Global Note shall be exchanged for beneficial interests
in Regulation S Permanent Global Notes. Simultaneously with the authentication
of Regulation S Permanent Global Notes, the Trustee shall cancel the Regulation
S Temporary Global Note. The aggregate principal amount of the Regulation S
Temporary Global Note and the Regulation S Permanent Global Notes may from time
to time be increased or decreased by adjustments made on the records of the
Trustee and the Depositary or its nominee, as the case may be, in connection
with the transfer of interest as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes as shall be
specified therein and each shall provide that it shall represent the aggregate
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges, redemptions and
transfers of interest. Any endorsement of a Global Note to reflect the amount
of any increase or decrease in the amount of outstanding Notes represented
thereby shall be made by the Trustee or the Note Custodian, at the direction of
the Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.06 hereof.
The provisions of the "Operating Procedures of the Euroclear System" and
"Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall be
applicable to interests in the Regulation S Temporary Global Note and the
Regulation S Permanent Global Notes that are held by the Holders through
Euroclear or Cedel Bank.
Except as set forth in Section 2.06 hereof, the Global Notes may be
transferred, in whole and not in part, only to another nominee of the Depositary
or to a successor of the Depositary or its nominee.
(b) Book-Entry Provisions. This Section 2.01(b) shall apply only to Rule
144A Global Notes and the Regulation S Permanent Global Notes deposited with or
on behalf of the Depositary.
Services shall execute and the Trustee shall, in accordance with this
Section 2.01(b), authenticate and deliver the Global Notes that (i) shall be
registered in the name of the Depositary or the nominee of the Depositary and
(ii) shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary's instructions or held by the Trustee as custodian for the
Depositary.
15
Participants shall have no rights either under this Indenture with respect
to any Global Note held on their behalf by the Depositary or by the Trustee as
custodian for the Depositary or under such Global Note, and the Depositary may
be treated by Services, the Trustee and any agent of Services or the Trustee as
the absolute owner of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent Services, the
Trustee or any agent of Services or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Participants, the operation of
customary practices of such Depositary governing the exercise of the rights of
an owner of a beneficial interest in any Global Note.
(c) Definitive Notes. Notes issued in certificated form shall be
substantially in the form of Exhibits A-1 and A-2 attached hereto (but without
including the text referred to in footnotes 1 and 2 thereto).
Section 2.02. Execution and Authentication.
One Officer shall sign the Notes for Services by manual or facsimile
signature. Services' seal shall be reproduced on the Notes and may be in
facsimile form.
If an Officer whose signature is on a Note no longer holds that office at
the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of an
authorized signatory of the Trustee, and the Trustee's signature shall be
conclusive evidence that the Note has been authenticated under this Indenture.
The form of Trustee's certificate of authentication to be borne by the Notes
shall be substantially as set forth in Exhibits A-1 and A-2 hereto.
The Trustee shall, upon a written order of Services signed by two Officers
directing the Trustee to authenticate the Notes and certifying that all
conditions precedent to the issuance of the Notes contained herein have been
complied with, authenticate Notes for original issuance up to an aggregate
principal amount stated in paragraph 4 of the Notes (the aggregate principal
amount of outstanding Notes may not exceed that amount at any time, except as
provided in Section 2.07 hereof).
The Trustee may appoint an authenticating agent acceptable to Services to
authenticate Notes. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with Services or an Affiliate of Services.
Section 2.03. Registrar and Paying Agent.
Services shall maintain an office or agency (the "Registrar") where Notes
may be presented for registration of transfer or for exchange and an office or
agency (the "Paying Agent") where Notes may be presented for payment. The
Registrar shall keep a register of the Notes and of their transfer and exchange.
Services may appoint one or more co-registrars and one or more additional paying
agents. The term "Registrar" includes any co-registrar, and the term "Paying
Agent" includes any additional paying agent. Services may change any Paying
Agent or Registrar without prior notice to any Holder. Services shall notify in
writing the Trustee and the Trustee shall notify the Holders in writing of the
name and address of any Agent not a party to this Indenture. If Services fails
to appoint or maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. Services shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, and such agreement shall
incorporate the TIA's provisions and implement the provisions of this Indenture
that relate to such Agent.
Services initially appoints The Depository Trust Company ("DTC") to act as
Depositary with respect to the Global Notes.
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Services initially appoints the Trustee as the Registrar and Paying Agent
and to act as Note Custodian with respect to the Global Notes. Services
initially appoints the Trustee to act as the Registrar and Paying Agent with
respect to the Definitive Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
Services shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent will hold in trust for the Holders' benefit or the
Trustee all money the Paying Agent holds for redemption or purchase of the Notes
or for the payment of principal of, or premium, if any, or interest on, or
Liquidated Damages, if any, with respect to the Notes, and will promptly notify
the Trustee of any Default by Services in providing the Paying Agent with
sufficient funds to (i) purchase Notes tendered pursuant to an Offer (ii) redeem
Notes called for redemption, or (iii) make any payment of principal, premium,
interest or Liquidated Damages, if any, due on the Notes. While any such
Default continues, the Trustee may require the Paying Agent to pay all money it
holds to the Trustee and to account for any funds disbursed. Services at any
time may require the Paying Agent to pay all money it holds to the Trustee and
to account for any funds disbursed. Upon payment over to the Trustee, the
Paying Agent (if other than Services or any of its Subsidiaries) shall have no
further liability for the money it delivered to the Trustee. If Services or any
of its Subsidiaries acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the Holders' benefit or the Trustee all money it holds
as Paying Agent.
Section 2.05. Holder lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, Services shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing a list in such form and as of such date as the
Trustee may reasonably require that sets forth the names and addresses of, and
the aggregate principal amount of Notes held by, each Holder, and Services shall
otherwise comply with Section 312(a) of the TIA.
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged
by Services for Definitive Notes if (i) Services delivers to the Trustee notice
from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by
Services within 120 days after the date of such notice from the Depositary or
(ii) Services in its sole discretion determines that the Global Notes (in whole
but not in part) should be exchanged for Definitive Notes and delivers a written
notice to such effect to the Trustee; provided that in no event shall the
Regulation S Temporary Global Note be exchanged by Services for Definitive Notes
prior to (x) the expiration of the Restricted Period and (y) the receipt by the
Registrar of any certificates required pursuant to Rule 903. Upon the
occurrence of either of the preceding events in (i) or (ii) above, Definitive
Notes shall be issued in such names as the Depositary shall instruct the Trustee
in writing. Global Notes also may be exchanged or replaced, in whole or in
part, as provided in Sections 2.07 and 2.11 hereof. Every Note authenticated
and delivered in exchange for, or in lieu of, a Global Note or any portion
thereof, pursuant to Section 2.07 or 2.11 hereof, shall in the form of, and
shall be, a Global Note of like tenor. A Global Note may not be exchanged for
another Note other than as provided in this Section 2.06(a), however beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes.
The transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the procedures of the Depositary therefor. Beneficial interests in
the Restricted Global Notes shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. The Trustee shall have no obligation to ascertain the Depositary's
compliance with any such restrictions on transfer or exchange. Transfers and
exchanges of beneficial interests in the Global Notes also shall
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require compliance with either subparagraph (i) or (ii) below, as applicable, as
well as one or more of the other following subparagraphs as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred only
to Persons who take delivery thereof in the form of a beneficial interest
in the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided, however,
that prior to the expiration of the Restricted Period transfers of
beneficial interests in the Regulation S Temporary Global Note may not be
made to a U.S. Person or for the account or benefit of a U.S. Person (other
than an Initial Purchaser). Beneficial interests in any Unrestricted
Global Note may be transferred only to Persons who take delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note. No
written orders or instructions shall be required to be delivered to the
Registrar to effect the transfers described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests (other than transfers of beneficial interests in a Global Note to
Persons who take delivery thereof in the form of a beneficial interest in
the same Global Note), the transferor of such beneficial interest must
deliver to the Registrar either (A) (1) a written order from a Participant
or an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in the specified Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such
increase or (B) (1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to cause to be issued a Definitive Note
in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such Definitive
Note shall be registered to effect the transfer or exchange referred to in
(B) (1) above; provided that in no event shall Definitive Notes be issued
upon the transfer or exchange of beneficial interests in the Regulation S
Temporary Global Note prior to (x) the expiration of the Restricted Period
and (y) the receipt by the Registrar of any certificates required pursuant
to Rule 903 under the Securities Act. Upon an Exchange Offer by Services
in accordance with Section 2.06(f) hereof, the requirements of this Section
2.06(b)(ii) shall be deemed to have been satisfied upon receipt by the
Registrar of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted
Global Notes. Upon satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained in this
Indenture, the Notes and otherwise applicable under the Securities Act, the
Trustee shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted Global
Note. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the Registrar
receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the Rule 144A Global Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including
the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Note or the
Regulation S Permanent Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Note, then the transferor must
deliver (x) a certificate in the form of Exhibit B hereto, including
the certifications in item (3)(d) thereof, (y) to the extent required
by item (3)(d) of Exhibit B hereto, an Opinion of Counsel from the
transferee or the transferor in form reasonably acceptable to Services
and the Registrar to the effect that such transfer is in compliance
with the
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Securities Act and such beneficial interest is being transferred in
compliance with any applicable blue sky securities laws of any State
of the United States and (z) if the transfer is being made to an
Institutional Accredited Investor and effected pursuant to an
exemption from the registration requirements of the Securities Act
other than Rule 144A, Rule 144 under the Securities Act or Rule 904 a
certificate from the transferee in the form of Exhibit D hereto.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in the Unrestricted Global Note.
Beneficial interests in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in the Unrestricted Global Note or
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder, in the case of an exchange, or the transferee, in the
case of a transfer, is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144 under the
Securities Act) of Services;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement (as defined in the Registration Rights
Agreement).
(C) any such transfer is effected by a Participating Broker-
Dealer (as defined in the Registration Rights Agreement) pursuant to
the Exchange Offer Registration Statement (as defined in the
Registration Rights Agreement) in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the following (all of which may be
submitted by facsimile):
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest
for a beneficial interest in the Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(a) thereof;
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial interest
to a Person who shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note, a certificate
from such transferor in the form of Exhibit B hereto, including the
certifications in item (4) thereof; and
(3) in each such case set forth in this subparagraph (D),
an Opinion of Counsel in form reasonably acceptable to the Registrar
to the effect that such exchange or transfer is in compliance with the
Securities Act, that the restrictions on exchange or transfer
contained herein and in the Private Placement Legend are not required
in order to maintain compliance with the Securities Act, and such
beneficial interest is being exchanged or transferred in compliance
with any applicable blue sky securities laws of any State of the
United States.
If any such transfer or exchange is effected pursuant to
subparagraph (B) or (D) above at a time when an Unrestricted Global Note
has not yet been issued, Services shall issue and, upon receipt of an
authentication order in accordance with Section 2.02 hereof, Services shall
execute and the Trustee shall authenticate and deliver to the Depositary
one or more Unrestricted Global Notes in an aggregate principal amount
equal to the principal amount of beneficial interests transferred pursuant
to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the
form of, a beneficial interest in any Restricted Global Note.
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(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(i) If any holder of a beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a Definitive Note or
to transfer such beneficial interest to a Person who takes delivery thereof
in the form of a Definitive Note, then, upon receipt by the Registrar of
the following documentation (all of which may be submitted by facsimile):
(A) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Definitive Note, a certificate from such holder in the form of Exhibit
C hereto, including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A under the Securities Act, a certificate
from such transferor in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a Non-
U.S. Person in an offshore transaction in accordance with Rule 904, a
certificate from such transferor in the form of Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant
to an exemption from the registration requirements of the Securities
Act in accordance with Rule 144 under the Securities Act, a
certificate from such transferor in the form of Exhibit B hereto,
including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, (1) a certificate from
such transferor in the form of Exhibit B hereto, including the
certifications in item (3)(d) thereof, (2) a certificate from the
transferee to the effect set forth in Exhibit D hereof and, (3) to the
extent required by item (3)(d) of Exhibit B hereto, an Opinion of
Counsel from the transferee or the transferor reasonably acceptable to
Services and the Registrar to the effect that such transfer is in
compliance with the Securities Act and such beneficial interest is
being transferred in compliance with any applicable blue sky
securities laws of any State of the United States;
(F) if such beneficial interest is being transferred to
Services or any of its Subsidiaries, a certificate from such
transferor in the form of Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred pursuant
to an effective registration statement under the Securities Act, a
certificate from such transferor in the form of Exhibit B hereto,
including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and Services shall execute and the Trustee shall authenticate and deliver
to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Definitive Notes issued in exchange for
beneficial interests in a Restricted Global Note pursuant to this Section
2.06(c)(i) shall be registered in such names and in such authorized
denominations as the Holder shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. Definitive Notes issued in exchange for a beneficial interest
in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall bear
the Private Placement Legend and shall be subject to all restrictions on
transfer contained therein.
(ii) Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a
beneficial interest in the Regulation S Temporary Global Note may not be
(A) exchanged for a Definitive Note prior to (x) the expiration of the
Restricted Period and (y) the receipt by the Registrar of any certificates
required pursuant
20
to Rule 903 or (B) transferred to a Person who takes delivery thereof in
the form of a Definitive Note prior to the conditions set forth in clause
(A) above or unless the transfer is pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 903 or Rule
904.
(iii) Notwithstanding Section 2.06(c)(i), a holder of a beneficial
interest in a Restricted Global Note may exchange such beneficial interest
for an Unrestricted Definitive Note or may transfer such beneficial
interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder, in the case of an exchange, or the transferee, in the
case of a transfer, is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144 under the
Securities Act) of Services;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following (all of which may be
submitted by facsimile):
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest
for a Definitive Note that does not bear the Private Placement Legend,
a certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(b) thereof;
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial interest
to a Person who shall take delivery thereof in the form of a
Definitive Note that does not bear the Private Placement Legend, a
certificate from such transferor in the form of Exhibit B hereto,
including the certifications in item (4) thereof; and
(3) in each such case set forth in this subparagraph (D),
an Opinion of Counsel in form reasonably acceptable to Services and
the Registrar, to the effect that such exchange or transfer is in
compliance with the Securities Act, that the restrictions on exchange
transfer contained herein and in the Private Placement Legend are not
required in order to maintain compliance with the Securities Act, and
such beneficial interest in a Restricted Global Note is being
exchanged or transferred in compliance with any applicable blue sky
securities laws of any State of the United States.
Upon satisfaction of the conditions of any of the subparagraphs of
this Section 2.06(c)(iii), the Trustee shall cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly pursuant to
Section 2.06(h) hereof, and Services shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions an
Unrestricted Definitive Note in the appropriate principal amount.
(iv) If any holder of a beneficial interest in an Unrestricted
Global Note proposes to exchange such beneficial interest for a Definitive
Note or to transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Definitive Note, then, upon satisfaction of the
conditions set forth in Section 2.06(b)(ii), the Trustee shall cause the
aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and Services shall execute
and the Trustee shall authenticate and deliver to the Person designated in
the instructions a Definitive Note in the appropriate principal amount.
Definitive Notes issued in exchange for a beneficial interest pursuant to
this Section 2.06(c)(iv) and 2.06(c)(iii) shall be registered in such names
and in such authorized denominations
21
as the Holder shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. Definitive Notes
issued in exchange for a beneficial interest pursuant to this Section
2.06(c)(iv) and Section 2.06(c)(iii) shall not bear the Private Placement
Legend. Beneficial interests in an Unrestricted Global Note cannot be
exchanged for a Definitive Note bearing the Private Placement Legend or
transferred to a Person who takes delivery thereof in the form of a
Definitive Note bearing the Private Placement Legend.
(d) Transfer or Exchange of Definitive Notes for Beneficial Interests in
Global Notes.
(i) If any Holder of Restricted Definitive Notes proposes to
exchange such Notes for a beneficial interest in a Restricted Global Note
or to transfer such Definitive Notes to a Person who takes delivery thereof
in the form of a beneficial interest in a Restricted Global Note, then,
upon receipt by the Registrar of the following documentation (all of which
may be submitted by facsimile):
(A) if the Holder of such Restricted Definitive Notes proposes
to exchange such Notes for a beneficial interest in a Restricted
Global Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Notes are being transferred
to a QIB in accordance with Rule 144A, a certificate from such
transferor in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such Restricted Definitive Notes are being transferred
to a Non-U.S. Person in an offshore transaction in accordance with
Rule 904, a certificate from such transferor in the form of Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Notes are being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate from such transferor in the form of Exhibit B hereto,
including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Notes are being transferred
to an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other than
those listed in subparagraphs (B) through (D) above, (1) a certificate
from such transferor in the form of Exhibit B hereto, including the
certifications in item (3)(d) thereof, (2) a certificate from the
transferee in the form of Exhibit D hereto and, (3) to the extent
required by item (3)(d) of Exhibit B, an Opinion of Counsel from the
transferee or the transferor reasonably acceptable to Services and the
Registrar to the effect that such transfer is in compliance with the
Securities Act and such Definitive Notes are being transferred in
compliance with any applicable blue sky securities laws of any State
of the United States;
(F) if such Restricted Definitive Notes are being transferred
to Services or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(G) if such Restricted Definitive Notes are being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Notes, increase or cause
to be increased the aggregate principal amount of, in the case of clause
(A) above, the appropriate Restricted Global Note, in the case of clause
(B) above, the Rule 144A Global Note, in the case of clause (C) above, the
appropriate Regulation S Global Note, and in all other cases, the IAI
Global Note.
22
(ii) A Holder of Restricted Definitive Notes may exchange such Notes
for a beneficial interest in the Unrestricted Global Note or transfer such
Restricted Definitive Notes to a Person who takes delivery thereof in the
form of a beneficial interest in the Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes (as defined in
the Registration Rights Agreement) or (3) a Person who is an affiliate
(as defined in Rule 144 of the Securities Act) of Services;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following (all of which may be
submitted by facsimile):
(1) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in the form
of Exhibit C hereto, including the certifications in item (1)(c)
thereof;
(2) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take delivery
thereof in the form of a beneficial interest in the Unrestricted
Global Note, a certificate from such transferor in the form of Exhibit
B hereto, including the certifications in item (4) thereof; and
(3) in each such case set forth in this subparagraph (D),
an Opinion of Counsel in form reasonably acceptable to Services and
the Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act, that the restrictions on exchange
or transfer contained herein and in the Private Placement Legend are
not required in order to maintain compliance with the Securities Act,
and such Restricted Definitive Notes are being exchanged or
transferred in compliance with any applicable blue sky securities laws
of any State of the United States.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Note.
(iii) A Holder of Unrestricted Definitive Notes may exchange such
Notes for a beneficial interest in the Unrestricted Global Note or transfer
such Definitive Notes to a Person who takes delivery thereof in the form of
a beneficial interest in the Unrestricted Global Note. Upon receipt of a
written request for such an exchange or transfer, the Trustee shall cancel
the Unrestricted Definitive Notes and increase or cause to be increased the
aggregate principal amount of the Unrestricted Global Note.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Note has not yet been issued,
Services shall issue and, upon receipt of an authentication order in accordance
with Section 2.02 hereof, Services shall execute and the Trustee shall
authenticate and deliver to the Depositary one or more Unrestricted Global Notes
in an aggregate principal amount equal to the principal amount of beneficial
interests transferred pursuant to subparagraphs (ii)(B), (ii)(D) or (iii) above.
(e) Transfer and Exchange of Definitive Notes. Upon request by a Holder
of Definitive Notes and such Holder's compliance with the provisions of this
Section 2.06(e), the Registrar shall register the transfer or exchange of
Definitive Notes. Prior to such registration of transfer or exchange, the
requesting Holder shall present
23
or surrender to the Registrar the Definitive Notes duly endorsed or accompanied
by a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney, duly authorized in writing. In
addition, the requesting Holder shall provide any additional certifications,
documents and information, as applicable, pursuant to the provisions of this
Section 2.06(e).
(i) Restricted Definitive Notes may be transferred to and
registered in the name of Persons who take delivery thereof if the
Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A, then
the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 904, then
the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act,
then the transferor must deliver (x) a certificate in the form of
Exhibit B hereto, including the certifications in item (3)(d) thereof,
(y) to the extent required by item (3)(d) of Exhibit B hereto, an
Opinion of Counsel in form reasonably acceptable to Services and the
Registrar to the effect that such transfer is in compliance with the
Securities Act and such beneficial interest is being transferred in
compliance with any applicable blue sky securities laws of any State
of the United States and (z) if the transfer is being made to an
Institutional Accredited Investor and effected pursuant to an
exemption from the registration requirements of the Securities Act
other than Rule 144A, Rule 144 under the Securities Act or Rule 904, a
certificate from the transferee in the form of Exhibit D hereto.
(ii) Restricted Definitive Notes may be exchanged by any Holder
thereof for an Unrestricted Definitive Note or transferred to Persons who
take delivery thereof in the form of an Unrestricted Definitive Note only
if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder, in the case of an exchange, or the transferee, in the
case of a transfer, is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144 under the
Securities Act) of Services;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following (all of which may be
submitted by facsimile):
(1) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted Definitive Note, a
certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(d) thereof;
(2) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take delivery
thereof in the form of an Unrestricted Definitive Note, a certificate
from such transferor in the form of Exhibit B hereto, including the
certifications in item (4) thereof; and
(3) in each such case set forth in this subparagraph (D),
an Opinion of Counsel in form reasonably acceptable to Services to the
effect that such exchange or transfer is
24
in compliance with the Securities Act, that the restrictions on
exchange or transfer contained herein and in the Private Placement
Legend are not required in order to maintain compliance with the
Securities Act, and such Restricted Definitive Note is being exchanged
or transferred in compliance with any applicable blue sky securities
laws of any State of the United States.
(iii) A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note. Upon receipt of a request for such a transfer, the
Registrar shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof. Unrestricted Definitive Notes cannot
be exchanged for or transferred to Persons who take delivery thereof in the
form of a Restricted Definitive Note.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, Services shall issue and,
upon receipt of an authentication order in accordance with Section 2.02, the
Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by persons that
are not (x) broker-dealers, (y) Persons participating in the distribution of the
Exchange Notes or (z) Persons who are affiliates (as defined in Rule 144 under
the Securities Act) of Services and accepted for exchange in the Exchange Offer
and (ii) Definitive Notes in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted for exchange in the
Exchange Offer. Concurrent with the issuance of such Notes, the Trustee shall
cause the aggregate principal amount of the applicable Restricted Global Notes
to be reduced accordingly, and Services shall execute and the Trustee shall
authenticate and deliver to the Persons designated by the Holders of Restricted
Definitive Notes so accepted Definitive Notes in the appropriate principal
amount.
(g) Legends. The following legends shall appear on the face of all Global
Notes and Definitive Notes issued under this Indenture unless specifically
stated otherwise in the applicable provisions of this Indenture:
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global
Note and each Definitive Note (and all Notes issued in exchange
therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY
STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION AND SUBJECT TO COMPLIANCE WITH OTHER APPLICABLE LAWS. THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS THREE YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH SERVICES OR ANY AFFILIATE OF SERVICES WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF THIS SECURITY) (THE "RESALE RESTRICTION TERMINATION
DATE"), ONLY (A) TO SERVICES OR TO THE GUARANTOR, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1),(2),(3) OR (7) OF RULE
501 UNDER THE SECURITIES ACT THAT IS
25
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
OTHERWISE IN COMPLIANCE WITH OTHER APPLICABLE LAWS, SUBJECT TO SERVICES'
AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT
TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND
DELIVERY BY THE TRANSFEROR TO THE COMPANY AND THE TRUSTEE OF A TRANSFER
NOTICE, THE FORM OF WHICH MAY BE OBTAINED FROM THE TRUSTEE, AND, IN THE
CASE OF THE FOREGOING CLAUSE (E), DELIVERY BY THE TRANSFEROR OF A LETTER OF
REPRESENTATION SIGNED BY SUCH TRANSFEREE, THE FORM OF WHICH MAY BE OBTAINED
FROM THE TRUSTEE. THE LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(iv), (c)(iii),
(c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) of this Section
2.06 (and all Notes issued in exchange therefor or substitution
thereof) shall not bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY
OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. THE DEPOSITORY TRUST COMPANY SHALL ACT AS THE
DEPOSITARY UNTIL A SUCCESSOR SHALL BE APPOINTED BY SERVICES AND THE
REGISTRAR. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX,
XXX XXXX) ("XXX"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN."
(iii) Regulation S Temporary Global Note Legend. The Regulation S
Temporary Global Note shall bear a legend in substantially the following
form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE
AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR
THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE
ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed,
26
repurchased or cancelled in whole and not in part, each such Global Note shall
be returned to or retained and cancelled by the Trustee in accordance with
Section 2.11 hereof. At any time prior to such cancellation, if any beneficial
interest in a Global Note is exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global
Note or for Definitive Notes, the principal amount of Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on
such Global Note, by the Trustee or by the Depositary at the direction of the
Trustee, to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note, by the Trustee or by the Depositary at the direction of the Trustee, to
reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, Services
shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon Services' order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but Services may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to
Sections 2.10, 3.06, 4.13, 4.14 and 9.05 hereof).
(iii) The Registrar shall not be required to register the transfer of
or exchange any Note selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of Services, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Global Notes or
Definitive Notes surrendered upon such registration of transfer or
exchange.
(v) Services shall not be required (A) to issue, to register the
transfer of or to exchange Notes during a period beginning at the opening
of business 15 days before the day of any selection of Notes for redemption
under Section 3.02 hereof and ending at the close of business on the day of
selection, (B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion
of any Note being redeemed in part or (C) to register the transfer of or to
exchange a Note between a record date and the next succeeding Interest
Payment Date as defined in paragraph 1 of the Notes.
(vi) Prior to due presentment for the registration of a transfer or
exchange of any Note, the Trustee, any Agent and Services may deem and
treat the Person in whose name any Note is registered as the absolute owner
of such Note for the purpose of receiving payment of principal of and
interest on such Notes and for all other purposes, and none of the Trustee,
any Agent or Services shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02 hereof.
Section 2.07. Replacement Notes.
If any mutilated Note is surrendered by the Holder to the Trustee or
Services, or the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, Services shall issue and the Trustee,
upon the receipt of an Officers' Certificate, shall authenticate a replacement
Note if the Trustee's requirements are met. If the Trustee or Services requires
it, the Holder must supply an indemnity bond that is sufficient in the judgment
of the Trustee and Services to protect Services, the Trustee, any Agent or any
authenticating agent from any loss
27
that any of them may suffer if a Note is replaced. Services and the Trustee may
charge for their expenses in replacing a Note. Every replacement Note is an
additional Obligation of Services and shall be entitled to all benefits of this
Indenture equally and ratably with other Notes duly issued hereunder.
Section 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes the Trustee has
authenticated except for those it has cancelled, those delivered to it for
cancellation, those representing reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.08 as not outstanding.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that a bona
fide purchaser holds the replaced Note.
If the entire principal of, and premium, if any, and accrued interest on,
and Liquidated Damages, if any, with respect to any Note is considered paid
under Section 4.01 hereof, it ceases to be outstanding and interest and
Liquidated Damages, if any, on it cease to accrue.
Subject to Section 2.09 hereof, a Note does not cease to be outstanding
because Services or an Affiliate of Services holds the Note.
Section 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by
Services or an Affiliate shall be considered as though not outstanding, except
that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes that a Responsible
Officer of the Trustee knows are so owned shall be so disregarded.
Notwithstanding the foregoing, Notes that Services or an Affiliate offers to
purchase or acquires pursuant to an Offer, exchange offer, tender offer or
otherwise shall not be deemed to be owned by Services or an Affiliate until
legal title to such Notes passes to Services or such Affiliate, as the case may
be.
Section 2.10. Temporary Notes.
Until Definitive Notes are ready for delivery, Services may prepare and
execute and the Trustee shall authenticate and deliver temporary Notes.
Temporary Notes shall be substantially in the form of Definitive Notes but may
have variations that Services considers appropriate for temporary Notes.
Without unreasonable delay, Services shall prepare and the Trustee, upon receipt
of Services' written order signed by two Officers which shall specify the amount
of temporary Notes to be authenticated and the date on which the temporary Notes
are to be authenticated, shall authenticate Definitive Notes and deliver them in
exchange for temporary Notes. Until such exchange, Holders of temporary Notes
shall be entitled to the same rights, benefits and privileges as Definitive
Notes.
Section 2.11. Cancellation.
Services at any time may deliver Notes to the Trustee for cancellation.
The Registrar and the Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange, replacement, payment
(including all Notes called for redemption and all Notes accepted for payment
pursuant to an Offer) or cancellation, and the Trustee shall cancel all such
Notes and shall destroy all cancelled Notes (subject to the Exchange Act's
record retention requirements) and deliver a certificate of their destruction to
Services unless by written order, signed by two Officers of Services, Services
shall direct that cancelled Notes be returned to it. Services may not issue new
Notes to replace any Notes that have been paid or that have been cancelled by
the Trustee or that have been delivered to the Trustee for cancellation. If
Services or an Affiliate acquires any Notes (other than by redemption or
pursuant to an Offer), such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Notes unless and until such
Notes are delivered to the Trustee for cancellation.
28
Section 2.12. Defaulted Interest.
If Services defaults in a payment of interest on the Notes, it shall pay
the defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to Holders on a subsequent special record
date, in each case at the rate provided in the Notes and in Section 4.01 hereof.
Services shall fix or cause to be fixed each such special record date and
payment date. As early as practicable but at least 15 days prior to the special
record date, Services (or the Trustee, in the name of and at the expense of
Services) shall mail to Holders a notice that states the special record date,
the related payment date and the amount of interest to be paid.
Section 2.13. Record Date.
The record date for purposes of determining the identity of Holders of
Notes entitled to vote or consent to any action by vote or consent authorized or
permitted under this Indenture shall be determined as provided for in Section
316(c) of the TIA.
Section 2.14. Cusip Number.
A "CUSIP" number shall be printed on the Notes, and the Trustee shall use
the CUSIP number in notices of redemption, purchase or exchange as a convenience
to Holders, 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 Notes and that reliance may be placed only on the other identification
numbers printed on the Notes. Services shall promptly notify the Trustee of any
change in the CUSIP number.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
If Services elects to redeem Notes pursuant to Section 3.07 hereof, it
shall furnish to the Trustee, at least 30 days prior to the redemption date and
at least 60 days prior to the date that notice of the redemption is to be mailed
by Services to Holders (or such shorter time as may be acceptable to the
Trustee), an Officers' Certificate stating that Services has elected to redeem
Notes pursuant to Section 3.07(a) or 3.07(b) hereof, as the case may be, the
date notice of redemption is to be mailed to Holders, the redemption date, the
aggregate principal amount of Notes to be redeemed, the redemption price for
such Notes and the amount of accrued and unpaid interest on and Liquidated
Damages, if any, with respect to such Notes as of the redemption date. If the
Trustee is not the Registrar, Services shall, concurrently with delivery of its
notice to the Trustee of a redemption, cause the Registrar to deliver to the
Trustee a certificate (upon which the Trustee may rely) setting forth the name
of, and the aggregate principal amount of Notes held by, each Holder.
If Services is required to offer to purchase Notes pursuant to Section 4.13
or 4.14 hereof, it shall furnish to the Trustee, at least ten Business Days
before notice of the Offer is to be mailed to Holders (or such shorter time as
may be acceptable to the Trustee), an Officers' Certificate setting forth that
the Offer is being made pursuant to Section 4.13 or 4.14 hereof, as the case may
be, the date upon which such purchase will occur (the "Purchase Date"), the
maximum principal amount of Notes Services is offering to purchase pursuant to
the Offer, the purchase price for such Notes, and the amount of accrued and
unpaid interest on and Liquidated Damages, if any, with respect to such Notes as
of the Purchase Date.
Services will also provide the Trustee with any additional information that
the Trustee reasonably requests in connection with any redemption or Offer.
29
Section 3.02. Selection of Notes to be Redeemed or Purchased.
If less than all Notes are to be redeemed or if less than all Notes
tendered pursuant to an Offer are to be accepted at any time, selection of Notes
for redemption or acceptance shall be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot
or by such other method as the Trustee deems fair and appropriate, provided that
no Notes with a principal amount of $1,000 or less shall be redeemed or
purchased in part. Notes and portions thereof selected by the Trustee shall be
in amounts of $1,000 or whole multiples of $1,000. If any Note is to be
redeemed or purchased in part only, the notice of redemption or Offer that
relates to such Note shall state the portion of the principal amount thereof to
be redeemed or purchased. A new Note in principal amount equal to the
unredeemed or unaccepted portion thereof shall be issued in the name of the
Holder thereof upon cancellation of the original Note. On and after the
redemption date, interest shall cease to accrue on Notes or portions thereof
called for redemption.
Section 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date,
Services shall mail by first class mail a notice of redemption to each Holder of
Notes or portions thereof that are to be redeemed.
The notice shall identify the Notes or portions thereof to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price for the Notes and separately stating the
amount of unpaid and accrued interest on, and Liquidated Damages,
if any, with respect to, such Notes as of the date of redemption;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Notes to be redeemed and that, after the
redemption date, upon surrender of such Note, a new Note or Notes
in principal amount equal to the unredeemed portion will be
issued upon cancellation of the original Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent before the close of business on the redemption date
to collect the redemption price for, and any accrued and unpaid
interest on, and Liquidated Damages, if any, with respect to such
Notes;
(6) that, unless Services defaults in making such redemption payment,
interest (including Liquidated Damages, if any) on Notes called
for redemption ceases to accrue on and after the redemption date;
(7) the paragraph of the Notes and section of this Indenture pursuant
to which the Notes called for redemption are being redeemed; and
(8) the CUSIP number; provided that no representation is made as to
the correctness or accuracy of the CUSIP number listed in such
notice and printed on the Notes.
At Services' request, the Trustee shall (at Services' expense) give the
notice of redemption in Services' name at least 30 but not more than 60 days
before a redemption; provided, however, that Services shall deliver to the
Trustee, at least 45 days prior to the redemption date and at least 10 days
prior to the date that notice of the redemption is to be mailed to Holders, an
Officers' Certificate that (i) requests the Trustee to give notice of the
redemption to Holders (or such shorter time as may be acceptable to the
Trustee), (ii) sets forth the information to be provided to Holders in the
notice of redemption, as set forth in the preceding paragraph, (iii) states that
Services
30
has elected to redeem Notes pursuant to Section 3.07(a) or 3.07(b) hereof, as
the case may be, and (iv) sets forth the aggregate principal amount of Notes to
be redeemed and the amount of accrued and unpaid interest and Liquidated
Damages, if any, thereon as of the redemption date. If the Trustee is not the
Registrar, Services shall, concurrently with any such request, cause the
Registrar to deliver to the Trustee a certificate (upon which the Trustee may
rely) setting forth the name of, the address of, and the aggregate principal
amount of Notes held by, each Holder.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes called for redemption become due
and payable on the redemption date at the redemption price set forth in the
Note. Upon surrender to the Trustee or Paying Agent, such Notes called for
redemption shall be paid at the redemption price (which shall include accrued
interest thereon and Liquidated Damages, if any, to the redemption date) but
installments of interest, the maturity of which is on or prior to the redemption
date, shall be payable to Holders of record at the close of business on the
relevant record dates.
Section 3.05. Deposit of Redemption Price.
On or prior to any redemption date, Services shall deposit with the Trustee
or with the Paying Agent money sufficient to pay the redemption price of, and
accrued interest on, and Liquidated Damages, if any, with respect to all Notes
to be redeemed on that date. The Trustee or the Paying Agent shall return to
Services any money that Services deposited with the Trustee or the Paying Agent
in excess of the amounts necessary to pay the redemption price of, and accrued
interest on, and Liquidated Damages, if any, with respect to all Notes to be
redeemed.
If Services complies with the preceding paragraph, interest and Liquidated
Damages, if any, on the Notes to be redeemed will cease to accrue on such Notes
on the applicable redemption date, whether or not such Notes are presented for
payment. If a Note is redeemed on or after an interest record date but on or
prior to the related interest payment date, then any accrued and unpaid interest
and Liquidated Damages, if any, shall be paid to the Person in whose name such
Note was registered at the close of business on such record date. If any Note
called for redemption shall not be so paid upon surrender for redemption because
of the failure of Services to comply with the preceding paragraph, interest will
be paid on the unpaid principal, premium, if any, interest and Liquidated
Damages, if any, from the redemption date until such principal, premium,
interest and Liquidated Damages, if any, is paid, at the rate of interest
provided in the Notes and Section 4.01 hereof.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, Services shall issue and
the Trustee shall authenticate for the Holder at Services' expense a new Note
equal in principal amount to the unredeemed portion of the Note surrendered.
Section 3.07. Optional Redemption Provisions.
(a) Except as provided below, Services shall not have the right to redeem
any Notes prior to February 1, 2002. On or after February 1, 2002, Services
will have the right to redeem all or any part of the Notes in cash at the
redemption prices (expressed as a percentage of the aggregate principal amount
thereof) set forth below, in each case plus accrued and unpaid interest and
Liquidated Damages, if any, to the applicable redemption date (subject to the
right of Holders of record on the relevant record date to receive interest due
on an Interest Payment Date that is on or prior to the redemption date) if
redeemed during the 12-month period beginning February 1, of the years indicated
below:
Year Redemption Price
---- ----------------
2002 105.000%
2003 103.333%
2004 101.667%
2005 and thereafter 100.000%
31
(b) In addition, in the event of the first to occur prior to February 1,
2000 of (i) a public offering by Services or CCPR of Capital Stock (other than
Disqualified Stock) for gross proceeds of $50 million or more or (ii) a sale or
series of related sales by Services or CCPR of its Common Stock to one or more
Strategic Equity Investors in a transaction not involving a Change of Control
for an aggregate purchase price of $35 million or more (a "Strategic Equity
Investor Sale"), Services may, at its option, use all or any portion of the net
proceeds thereof to redeem up to a maximum of 33-1/3% of the original aggregate
principal amount at maturity of the Notes at a redemption price equal to 109% of
the principal amount of the Notes plus accrued and unpaid interest and
Liquidated Damages, if any (determined at the date of redemption); provided,
however, that such redemption may be effected only to the extent that not less
than 66-2/3% of the original aggregate principal amount at maturity of the Notes
shall remain outstanding immediately after such redemption. Any such redemption
may be effected only once and must be effected upon not less than 30 nor more
than 60 days notice given within 30 days following such public equity offering
or the most recent such sale to a Strategic Equity Investor, as the case may be,
provided, however, that if as a result of the same transaction, Services is
required to make an Asset Sale Offer, pursuant to Section 4.14 hereof,
concurrently with its making of a Strategic Equity Investor Sale, Services shall
make the Asset Sale Offer no later than 30 days following such Strategic Equity
Investor Sale and, if such Asset Sale Offer is made, any redemption from the
Strategic Equity Investor Sale must be effected upon not less than 30 nor more
than 60 days' notice given within 30 days following the consummation of the
Asset Sale Offer.
Section 3.08. Mandatory Purchase Provisions.
Except as set forth under Sections 4.13 and 4.14 hereof, Services shall not
be required to make mandatory redemption or sinking fund payments with respect
to the Notes.
Section 3.09. Offer to Purchase by Application of Net Cash Proceeds From an
Asset Sale.
(a) In the event that, pursuant to Section 4.14(a)(1)(A) hereof, or until
the accumulated Net Cash Proceeds from an Asset Sales, that are not applied in
accordance with Section 4.14(a)(1)(B) hereof exceeds $5 million, Services shall
be required to commence an Asset Sale Offer and it shall follow the procedures
specified below.
(b) The Asset Sale Offer shall remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "Asset Sale Offer Period").
Not later than five Business Days after the termination of the Asset Sale Offer
Period (the "Asset Sale Purchase Date"), Services shall apply the Asset Sale
Offer Amount, plus an amount equal to accrued and unpaid interest to purchase
the principal amount of Notes properly tendered pursuant to this Section 3.09
or, if less than the Asset Sale Offer Amount has been tendered, all Notes
tendered in response to the Asset Sale Offer at the Asset Sale Offer Price.
Payment for any Notes so purchased shall be made in the same manner as interest
payments are made.
(c) Services shall comply with any tender offer rules under the Exchange
Act which may then be applicable, including, to the extent applicable, Section
14(e) and Rule 14e-1, in connection with any offer required to be made by
Services to repurchase the Notes as a result of an Asset Sale Offer. To the
extent that the provisions of any securities laws or regulations conflict with
provisions of this Section 3.09, Services shall comply with the applicable
securities laws or regulations and shall not be deemed to have breached its
obligations hereunder by virtue thereof.
(d) If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest shall
be paid to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
(e) Upon the commencement of an Asset Sale Offer, Services shall send, by
first class mail, a notice to the Trustee and each of the Holders. The notice
shall contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be
made to all Holders. The notice, which shall govern the terms of the Asset Sale
Offer, shall state:
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(i) that the Asset Sale Offer is being made pursuant to Section
3.09 and Section 4.14 hereof and that all Notes validly tendered will be
accepted for payment on a pro rata basis;
(ii) the Asset Sale Offer Price and the date of purchase which shall
be a Business Day no earlier than 30 days nor later than 60 days from the
date such notice is mailed (the "Asset Sale Payment Date");
(iii) that any Note not tendered will continue to accrete or accrue
interest, as the case may be, pursuant to its terms;
(iv) that, unless Services defaults in the payment of the Asset Sale
Offer Price, any Note accepted for payment pursuant to the Asset Sale Offer
shall cease to accrue interest, on and after the Asset Sale Payment Date;
(v) that Holders electing to have a Note purchased pursuant to the
Asset Sale Offer will be required to surrender the Note, with the form
entitled "Option of the Holder to Elect Purchase" on the reverse side of
the Note completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the Business Day immediately
preceding the Asset Sale Payment Date;
(vi) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the third
Business Day immediately preceding the Asset Sale Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Notes delivered for purchase and a
statement that such Holder is withdrawing his election to have such Notes
purchased; and
(vii) that Holders whose Notes are being purchased only in part will
be issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered; provided, however, that each Note purchased and each
new Note issued shall be in a principal amount at maturity of $1,000 or
integral multiple thereof.
(f) On or prior to the Asset Sale Payment Date, Services shall (i) accept
for payment on a pro rata basis Notes or portions thereof tendered pursuant to
the Asset Sale Offer, (ii) deposit with the Paying Agent money sufficient to pay
the Asset Sale Offer Price of all Notes or portions thereof so accepted and
(iii) deliver, or cause to be delivered, to the Trustee all Notes or portions
thereof so accepted together with an Officers' Certificate specifying the Notes
or portions thereof accepted for payment by Services in accordance with the
terms of this Section 3.09. The Paying Agent shall promptly mail to Holders of
Notes so accepted, payment in an amount equal to the Asset Sale Offer Price and
the Trustee shall promptly authenticate and mail or deliver to such Holder a new
Note in a principal amount equal to any unpurchased portion of the Note
surrendered; provided, however, that each Note purchased and each new Note
issued shall be in a principal amount at maturity of $1,000 or integral multiple
thereof. Services will notify the Holders of the Notes of the results of the
Asset Sale Offer as soon as practicable after the Asset Sale Payment Date. Any
Note not so accepted shall be promptly mailed or delivered by Services to the
Holder thereof. For purposes of this Section 3.09, the Trustee shall act as the
Paying Agent.
(g) Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof. No repurchase of Notes under this Section
3.09 shall be deemed to be a redemption of Notes.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
Services shall pay the principal of, and premium, if any, and accrued and
unpaid interest on and Liquidated Damages, if any, with respect to the Notes on
the dates and in the manner provided in the Notes. Holders of Notes
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must surrender their Notes to the Paying Agent to collect principal payments.
Principal of, premium, if any, and accrued and unpaid interest, and Liquidated
Damages, if any, shall be considered paid on the date due if the Paying Agent
(other than Services, CCPR or any of the Subsidiaries), the Global Note Holder
or each Holder that has specified an account, holds, as of 12:00 noon New York
City time, money Services deposited in immediately available funds designated
for and sufficient to pay in cash all principal of, premium, if any, and accrued
and unpaid interest on, and Liquidated Damages, if any, then due; provided that,
to the extent that the Holders have not specified accounts, such amounts shall
be considered paid on the date due if Services mails a check for such amounts on
such date. The Paying Agent shall return to Services, no later than five days
following the date of payment, any money (including accrued interest) that
exceeds the amount of principal, premium, if any, accrued and unpaid interest,
and Liquidated Damages, if any, paid on the Notes. Services shall pay all
Liquidated Damages, if any, in the same manner on the dates and in the amounts
set forth in the Registration Rights Agreement. If any Liquidated Damages become
payable, Services shall not later than 3 Business Days prior to the date that
any payment of Liquidated Damages is due, (i) deliver an Officers' Certificate
to the Trustee setting forth the amount of Liquidated Damages payable to Holders
and (ii) instruct the Paying Agent to pay such amount of Liquidated Damages to
Holders entitled to receive such Liquidated Damages.
To the extent lawful, Services shall pay interest (including post-petition
interest) on (i) overdue principal and premium at the rate equal to 1% per annum
in excess of the then applicable interest rate on the Notes, compounded semi-
annually and (ii) overdue installments of interest and Liquidated Damages
(without regard to any applicable grace period) at the same rate as set forth in
clause (i), compounded semi-annually.
Section 4.02. Reports.
Whether or not required by the rules and regulations of the SEC, so long as
any Notes are outstanding, Services and CCPR shall deliver to each Holder,
within 15 days after they are or would have been required to file such with the
SEC, annual and quarterly financial statements substantially equivalent to
financial statements that would have been included in reports filed with the
SEC, if Services or CCPR were subject to the requirements of Section 13 or 15(d)
of the Exchange Act, including, with respect to annual information only, a
report thereon by Services and CCPR, or Services' or CCPR's certified
independent public accountants as such would be required in such reports to the
SEC, and in each case, together with a management's discussion and analysis of
financial condition and results of operations which would be so required. In
addition, whether or not required by the rules and regulations of the SEC,
Services and CCPR will file a copy of all such information and reports with the
SEC for public availability (unless the SEC will not accept such a filing) and
make such information available to securities analysts and prospective investors
upon request. In addition, Services and CCPR have agreed that, for so long as
any Notes remain outstanding, they will furnish to the Holders and to securities
analysts and prospective investors, upon their request, the information required
to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. Services
also shall comply with the other provisions of TIA Section 314(a).
The financial information to be distributed to Holders of Notes shall be
filed with the Trustee and mailed to the Holders at their addresses appearing in
the register of Notes maintained by the Registrar.
Services and the Guarantor shall provide the Trustee with a sufficient
number of copies of all reports and other documents and information that the
Trustee may be required to deliver to the Holders under this Section 4.02.
So long as not contrary to the then current recommendations of the American
Institute of Certified Public Accountants, the financial statements delivered
pursuant to Section 4.02 hereof shall be accompanied by a written statement of
Services' and CCPR's independent public accountants (who shall be a firm of
established national reputation reasonably satisfactory to the Trustee) that in
making the examination necessary for certification of such financial statements
nothing has come to their attention that would lead them to believe that either
Services or CCPR has violated Section 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11,
4.13, 4.14, 4.17 or any provisions of Article 5 hereof or, if any such violation
has occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
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Section 4.03. Compliance Certificate.
(a) Services and CCPR shall deliver to the Trustee, within 120 days after
the end of each fiscal year of Services and CCPR, an Officers' Certificate
stating that (i) a review of the activities of Services, CCPR and their
respective Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether Services
and CCPR have kept, observed, performed and fulfilled their obligations under
this Indenture, (ii) further stating, as to each such Officer signing such
certificate, that, to the best of his or her knowledge, Services and CCPR have,
in all material respects, kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and are not in default in the performance
or observance of any of the terms, provisions and conditions hereof (or, if a
Default or Event of Default shall have occurred, describing all such Defaults or
Events of Default of which he or she may have knowledge and what action Services
or CCPR has taken or proposes to take with respect thereto) and (iii) to the
best of his or her knowledge, no event has occurred and remains in existence by
reason of which payments on account of the principal of, premium, if any, and
accrued and unpaid interest on, and Liquidated Damages, if any, with respect to
the Notes are prohibited or if such event has occurred, a description of the
event and what action Services or CCPR is taking or proposes to take with
respect thereto.
(b) Services and CCPR shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action Services and CCPR is taking or proposes to take with
respect thereto.
Section 4.04. Stay, Extension and Usury Laws.
Services and CCPR covenant (to the extent that it may lawfully do so) that
they will not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that might affect the covenants
or the performance of this Indenture and the Notes; and Services and CCPR (to
the extent they may lawfully do so) hereby expressly waive all benefit or
advantage of any such law, and covenant that they will not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law has been enacted.
Section 4.05. Restricted Payments.
After the Issue Date, Services and CCPR shall not, and shall not permit any
of the Restricted Subsidiaries to, directly or indirectly, make any Restricted
Payment, if, immediately prior or after giving effect thereto:
(a) a Default or an Event of Default would exist;
(b) CCPR could not incur at least $1.00 of additional Indebtedness
pursuant to the Annualized Operating Cash Flow Ratio provision set forth in
the second paragraph of Section 4.07 hereof; or
(c) the aggregate amount of all Restricted Payments made by
Services, CCPR and the Restricted Subsidiaries, including such proposed
Restricted Payment (if not made in cash, then the fair market value of any
property used therefor) from and after the Issue Date and on or prior to
the date of such Restricted Payment, shall exceed the sum of (i) the excess
of (A) Cumulative Operating Cash Flow over (B) the product of 1.5 times
Cumulative Interest Expense, plus (ii) the aggregate Net Proceeds received
by Services or CCPR from the sale (other than to a Subsidiary of Services
or CCPR) of its Qualified Capital Stock after the Issue Date and on or
prior to the date of such Restricted Payment, plus (iii) the amount by
which Indebtedness of Services, CCPR or any Restricted Subsidiary is
reduced on CCPR's balance sheet upon the conversion or exchange (other than
by a Subsidiary) subsequent to the Issue Date of any Indebtedness of
Services, CCPR or any Restricted Subsidiary convertible or exchangeable for
Capital Stock (other than Capital Stock that is redeemable) of Services or
CCPR (less the amount of any cash or other property distributed by
Services, CCPR or any Restricted Subsidiary upon conversion or exchange),
plus (iv) to the extent not otherwise included in clauses (i), (ii) or
(iii) above, an amount equal
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to the net reduction in Investments in Unrestricted Subsidiaries resulting
from payments of dividends, repayment of loans or advances, or other
transfers of assets, in each case to Services, CCPR or any Wholly Owned
Restricted Subsidiary of Services or CCPR from Unrestricted Subsidiaries,
or from redesignations of Unrestricted Subsidiaries as Restricted
Subsidiaries (valued in each case as provided in the definition of
"Investments"), not to exceed, in the case of any Unrestricted Subsidiary,
the amount of Investments previously made by Services, CCPR and any
Restricted Subsidiary in such Unrestricted Subsidiary.
Notwithstanding the foregoing, the provisions set forth in clause (b) or
(c) of the immediately preceding paragraph shall not prohibit (i) the use of an
aggregate of up to $100 million to be used for Restricted Payments made to
CoreComm not otherwise permitted by this Section 4.05, (ii) the payment of any
dividend within 60 days after the date of its declaration if such dividend could
have been made on the date of its declaration in compliance with the provision
of this Indenture, (iii) the redemption, defeasance, repurchase or other
acquisition or retirement of any Indebtedness or Capital Stock of Services, CCPR
or the Restricted Subsidiaries either in exchange for or out of the Net Proceeds
of the substantially concurrent sale (other than to a Subsidiary of Services or
CCPR) of Qualified Capital Stock (in the case of any redemption, defeasance,
repurchase or other acquisition or retirement of any Junior Indebtedness or
Capital Stock of Services, CCPR or the Restricted Subsidiaries) or Junior
Indebtedness (in the case of any redemption, defeasance, repurchase or other
acquisition or retirement of any Indebtedness of Services, CCPR or the
Restricted Subsidiaries) of Services or CCPR, (iv) any payments to CoreComm made
pursuant to the Administrative Services Agreement and (v) any payments made
pursuant to the Tax Sharing Agreement.
In determining the aggregate amount expended for Restricted Payments in
accordance with clause (c) of the first paragraph of this Section 4.05, 100% of
the amounts expended under clauses (i) through (v) of the immediately preceding
paragraph shall be deducted.
Section 4.06. Line of Business.
Neither Services, CCPR nor any of the Restricted Subsidiaries shall
directly or indirectly engage in any line or lines of business activity other
than that which, in the reasonable, good faith judgment of the Board of
Directors of Services or CCPR, is a Related Business.
Section 4.07. Incurrence of Additional Indebtedness.
(a) After the Issue Date, Services and CCPR shall not, and shall not
permit any of the Restricted Subsidiaries to, directly or indirectly, issue,
create, incur, assume, guaranty or otherwise become directly or indirectly
liable, for (including, as a result of an acquisition or otherwise, become
responsible for contingently or otherwise, individually or collectively, to
"incur" or as appropriate an "incurrence") any Indebtedness. Neither the accrual
of interest (including the issuance of "pay in kind" securities or similar
instruments in respect of such accrued interest) pursuant to the terms of
Indebtedness incurred in compliance with this Section 4.07, nor the accretion of
original issue discount, nor the mere extension of the maturity of any
Indebtedness shall be deemed to be an incurrence of Indebtedness.
Notwithstanding the foregoing, if there exists no Default or Event of
Default immediately prior and subsequent thereto, Services, CCPR and the
Restricted Subsidiaries may incur Indebtedness if CCPR's Annualized Operating
Cash Flow Ratio, after giving effect to the incurrence of such Indebtedness,
would have been less than 6.5 to 1.
(b) If there exists no Default or Event of Default immediately prior and
subsequent thereto, the provisions of Section 4.07(a) hereof shall not apply to
the incurrence of (i) Senior Debt by Services, CCPR or any of the Restricted
Subsidiaries pursuant to the Credit Agreement, (ii) guarantees of the Senior
Debt permitted under or required by the Credit Agreement and the Guarantees
permitted under or required by this Indenture, (iii) Indebtedness by Services,
CCPR or any of the Restricted Subsidiaries constituting Existing Indebtedness,
reduced by repayments of and permanent reductions in commitments in satisfaction
of the Net Cash Proceeds application requirement set forth in Section 4.14
hereof and by repayments and permanent reductions in amounts outstanding
pursuant to scheduled amortizations and mandatory prepayments in accordance with
the terms thereof, (iv)
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Indebtedness of Services evidenced by the Notes and Indebtedness of CCPR
evidenced by the Guarantee, (v) Indebtedness between Services, CCPR and any
Restricted Subsidiary or between Restricted Subsidiaries, (vi) Indebtedness
under the Administrative Headquarters Lease, (vii) Capitalized Lease Obligations
and Purchase Money Indebtedness in an aggregate amount or aggregate principal
amount, as the case may be, outstanding at any time not to exceed in the
aggregate $10 million, provided that in the case of Purchase Money Indebtedness,
such Indebtedness shall not constitute less than 75% nor more than 100% of the
cost (determined in accordance with GAAP) to Services, CCPR or such Restricted
Subsidiary of the property purchased or leased with the proceeds thereof, (viii)
Indebtedness of Services, CCPR or any Restricted Subsidiary arising from
agreements providing for indemnification, adjustment of purchase price or
similar obligations, or from guarantees or letters of credit, surety bonds or
performance bonds securing any obligations of Services, CCPR or the Restricted
Subsidiaries pursuant to such agreements, in any case incurred in connection
with the acquisition or disposition of any business, assets or Restricted
Subsidiary to the extent none of the foregoing results in the obligation to
repay an obligation for money borrowed by any Person and are limited in
aggregate amount to no greater than 10% of the fair market value of such
business, assets or Restricted Subsidiary so acquired or disposed of, (ix) any
guarantee by any Restricted Subsidiary of any (A) Senior Debt incurred in
compliance with this Section 4.07 or (B) Indebtedness incurred pursuant to
clause (xi) of this paragraph, (x) Indebtedness of Services, CCPR or any
Restricted Subsidiary under standby letters of credit or reimbursement
obligations with respect thereto incurred in the ordinary course of business and
consistent with industry practices limited in aggregate amount to $2.5 million
at any one time outstanding, (xi) Indebtedness of Services or CCPR (other than
Indebtedness permitted by clauses (i) through (x) or (xii) hereof) not to exceed
$10 million at any one time outstanding and (xii) Refinancing Indebtedness
incurred to extend, renew, replace or refund Indebtedness permitted under
clauses (i), (iii) (as so reduced in amount), (iv) and (xi) of this paragraph.
(c) Indebtedness of any Person that is not a Restricted Subsidiary (or
that is a Non-Recourse Restricted Subsidiary designated to be a Restricted
Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which
Indebtedness is outstanding at the time such Person becomes such a Restricted
Subsidiary or is merged with or into or consolidated with Services, CCPR or a
Restricted Subsidiary shall be deemed to have been incurred, as the case may be,
at the time such Person becomes such a Restricted Subsidiary or is merged with
or into or consolidated with Services, CCPR or a Restricted Subsidiary.
(d) For purposes of determining compliance with this Section 4.07, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories described in Section 4.07(b) hereof or is entitled to be incurred
pursuant to Section 4.07(a) hereof, Services and CCPR shall, in their sole
discretion, classify such item of Indebtedness in any manner that complies with
this Section 4.07 and such item of Indebtedness will be treated as having been
incurred pursuant to only one of such clauses or pursuant to the first paragraph
hereof.
Section 4.08. Transactions With Related Persons.
After the Issue Date, Services and CCPR shall not, and shall not permit any
of the Restricted Subsidiaries or Unrestricted Subsidiaries to, enter into any
contract, agreement, arrangement or transaction with any Related Person (each a
"Related Person Transaction"), or any series of Related Person Transactions,
except for transactions made in good faith, the terms of which are (i) fair and
reasonable to Services, CCPR or such Subsidiary, as the case may be, and (ii) at
least as favorable as the terms which could be obtained by Services, CCPR or
such Subsidiary, as the case may be, in a comparable transaction made on an
arm's length basis with Persons who are not Related Persons.
Without limiting the foregoing, (a) any Related Person Transaction or
series of Related Person Transactions with an aggregate value in excess of $1
million must first be approved by a majority of the Board of Directors of
Services or CCPR, as the case may be, who are disinterested in the subject
matter of the transaction pursuant to a resolution of the Board of Directors, or
(b) with respect to any Related Person Transaction or series of Related Person
Transactions (i) where there are no members of the Board of Directors who are
disinterested in the subject matter of a transaction otherwise subject to clause
(a) hereof or (ii) with an aggregate value in excess of $5 million, Services or
CCPR, as the case may be, must first obtain a favorable written opinion from a
financial advisor of national reputation who is not an Affiliate of Services,
CCPR or the Subsidiaries as to the fairness from a financial point of view of
such transaction to Services, CCPR or such Subsidiary, as the case may be.
37
Notwithstanding the foregoing, the following shall not constitute Related
Person Transactions: (i) reasonable and customary payments on behalf of
directors, officers or employees of Services, CCPR or any of the Restricted
Subsidiaries, or in reimbursement of reasonable and customary payments or
reasonable and customary expenditures made or incurred by such Persons as
directors, officers or employees, (ii) any contract, agreement, arrangement, or
transaction solely between or among Services, CCPR and any of the Restricted
Subsidiaries or between or among Restricted Subsidiaries, (iii) any Restricted
Payment of the type described by clauses (i) and (ii) of the definition thereof
made to all stockholders on a pro rata basis and not prohibited by Section 4.05
hereof, (iv) any payment made pursuant to the Tax Sharing Agreement, (v) any
payment made pursuant to the Administrative Services Agreement and (vi) any
transaction pursuant to an agreement described in or referred to in the Offering
Memorandum under the caption "The Restructuring" as in effect on the Issue Date.
Section 4.09. Liens.
Services and CCPR shall not, and shall not permit any Restricted
Subsidiary, directly or indirectly, to incur or suffer to exist any Lien (other
than Permitted Liens) upon any of their property or assets, whether now owned or
hereafter acquired.
Section 4.10. Compliance With Laws, Taxes.
Services and CCPR shall, and shall cause each of the Restricted
Subsidiaries to, comply with all statutes, laws, ordinances, or government rules
and regulations to which it is subject, the non-compliance with which would
materially adversely affect the business, earnings, properties, assets or
condition, financial or otherwise, of Services, CCPR and the Restricted
Subsidiaries taken as a whole.
Services and CCPR shall, and shall cause each of the Restricted
Subsidiaries to, pay prior to delinquency all material taxes, assessments and
governmental levies, except those contested in good faith by appropriate
proceedings.
Section 4.11. Restrictions On Subsidiary Dividends.
(a) So long as any of the Notes are outstanding, Services and CCPR shall
not, and shall not permit any of the Restricted Subsidiaries to, directly or
indirectly, create, assume or suffer to exist any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary to pay dividends or make
other distributions on the Capital Stock of any Restricted Subsidiary or pay or
satisfy any obligation to Services, CCPR or any of the Restricted Subsidiaries
or otherwise transfer assets or make or pay loans or advances to Services, CCPR
or any of the Restricted Subsidiaries.
(b) The foregoing provisions shall not restrict encumbrances and
restrictions existing as of the date of determination under (i) this Indenture,
the Guarantee and the Notes, (ii) any Existing Indebtedness, (iii) the Credit
Agreement, (iv) any applicable law or any governmental or administrative
regulation or order, (v) Refinancing Indebtedness permitted under this
Indenture, provided that the restrictions contained in the instruments governing
such Refinancing Indebtedness are no more restrictive in the aggregate than
those contained in the instruments governing the Indebtedness being refinanced
immediately prior to such refinancing, (vi) restrictions with respect solely to
a Restricted Subsidiary imposed pursuant to a binding agreement which has been
entered into for the sale or disposition of all or substantially all of the
Capital Stock or assets of such Restricted Subsidiary, provided such
restrictions apply solely to the Capital Stock or assets being sold of such
Restricted Subsidiary, (vii) restrictions contained in any agreement relating to
the financing of the acquisition of a Person or real or tangible personal
property after the Issue Date which are not applicable to any Person or
property, other than the Person or property so acquired and which were not put
in place in anticipation of or in connection with such acquisition or (viii) any
agreement (other than those referred to in clause (vii)) of a Person acquired by
Services, CCPR or a Restricted Subsidiary, which restrictions existed at the
time of acquisition.
Notwithstanding the foregoing, neither (a) customary provisions restricting
subletting or assignment of any lease entered into the ordinary course of
business, consistent with past practices nor (b) Liens on assets securing
38
Senior Debt, shall in and of themselves be considered a restriction on the
ability of the applicable Restricted Subsidiary to transfer such agreement or
assets, as the case may be.
Section 4.12. Maintenance of Office or Agencies.
Services shall maintain in The City of New York an office or an agency
(which may be an office of any Agent) where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
Services in respect of the Notes and this Indenture may be served. Services
shall give prompt written notice to the Trustee of any change in the location of
such office or agency. If at any time Services shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office.
Services may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any matter relieve Services of
its obligation to maintain an office or agency in The City of New York for such
purposes. Services shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Services hereby designates the Corporate Trust Office of the Trustee
located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as one such office or
agency of Services in accordance with this Section 4.12 and Section 2.03 hereof.
Section 4.13. Offer to Repurchase Upon Change of Control Triggering Event.
(a) Upon the occurrence of a Change of Control Triggering Event, each
Holder shall have the right to require Services to repurchase its Notes in cash
pursuant to the offer described in this Section 4.13 (the "Change of Control
Offer") at a purchase price equal to 101% of the principal amount thereof, plus
accrued and unpaid interest thereon and Liquidated Damages, if any, to the date
of purchase (the "Change of Control Payment").
(b) Services is not required to make a Change of Control Offer following a
Change of Control Triggering Event if a third party makes a Change of Control
Offer that would be in compliance with the provisions described in this Section
4.13 if such offer were made by Services and such third party purchases the
Notes validly tendered and not withdrawn. Services' Board of Directors shall
not have the ability unilaterally to waive Services' obligation to repurchase
the Notes in the event of a highly leveraged transaction.
(c) Within 30 days following the Change of Control Triggering Event,
Services shall mail a notice to the Trustee and each Holder stating: (i) that a
Change of Control Triggering Event has occurred, that the Change of Control
Offer is being made pursuant to Section 4.13 hereof and that all Notes validly
tendered will be accepted for payment; (ii) the purchase price and the date of
purchase (which shall be a Business Day no earlier than 30 days nor later than
60 days from the date such notice is mailed) (the "Change of Control Payment
Date"); (iii) that any Note not tendered will continue to accrue interest
pursuant to its terms; (iv) that unless Services defaults in the payment of the
Change of Control Payment, any Note accepted for payment pursuant to the Change
of Control Offer shall cease to accrue interest on and after the Change of
Control Payment Date; (v) that Holders electing to have any Note or portion
thereof purchased pursuant to the Change of Control Offer will be required to
surrender such Note, together with the form entitled "Option of the Holder to
Elect Purchase" on the reverse side of such Note completed, to the Paying Agent
at the address specified in the notice prior to the close of business on the
Business Day immediately preceding the Change of Control Payment Date; (vi) that
Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the third Business Day
immediately preceding the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of such Holder, the
principal amount of Notes delivered for purchase and a statement that such
Holder is withdrawing his election to have such Notes purchased; and (vii) that
Holders whose Notes are being purchased only in part will be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered;
provided, however, that each Note purchased and each new Note issued shall be in
a principal amount of $1,000 or integral multiples thereof.
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(d) On the Change of Control Payment Date, Services shall, to the extent
lawful: (i) accept for payment Notes or portions thereof properly tendered
pursuant to the Change of Control Offer; (ii) deposit with the Paying Agent
money sufficient to pay the purchase price of all Notes or portions thereof so
accepted; and (iii) deliver, or cause to be delivered to the Trustee, all Notes
or portions thereof so accepted together with an Officers' Certificate
specifying the Notes or portions thereof accepted for payment by Services. The
Paying Agent shall promptly mail, to the Holders of Notes so accepted, payment
in an amount equal to the purchase price, and the Trustee shall promptly
authenticate and mail to such Holders a new Note equal in principal amount to
any unpurchased portion of the Notes surrendered; provided, however, that each
Note purchased and each new Note issued shall be in a principal amount of $1,000
or integral multiples thereof. Services will notify the Holders of the Notes of
the results of the Change of Control Offer on or as soon as practicable after
the Change of Control Payment Date. For purposes of this Section 4.13, the
Trustee shall act as Paying Agent.
(e) Services shall comply with all applicable laws, rules and regulations
including, if applicable, Regulation 14E under the Exchange Act and the rules
thereunder and all other applicable Federal and state securities laws in the
event that a Change of Control Triggering Event occurs and Services is required
to repurchase the Notes pursuant to this Section 4.13, and Services and CCPR may
modify a Change of Control Offer to the extent necessary to effect such
compliance.
Section 4.14. Asset Sales and Sales of Restricted Subsidiary Stock.
(a) After the Issue Date, Services and CCPR shall not, and shall not
permit any of the Restricted Subsidiaries to, in one or a series of related
transactions, convey, sell, transfer, assign or otherwise dispose of, directly
or indirectly, any of their property, businesses or assets, including by merger
or consolidation, and including any sale or other transfer or issuance of any
Capital Stock of any Restricted Subsidiary, whether by Services, CCPR or a
Restricted Subsidiary (an "Asset Sale"), unless:
(1) (A) within 360 days after the date of such Asset Sale, an amount
equal to the Net Cash Proceeds therefrom (the "Asset Sale Offer
Amount") are applied to make the Asset Sale Offer (as defined below)
in accordance with the terms of this Indenture and to the redemption
of other Indebtedness of Services and CCPR ranking on a parity with
the Notes from time to time outstanding with similar provisions
requiring Services and CCPR to make an offer to purchase or to redeem
such Indebtedness with the proceeds from asset sales, pro rata in
proportion to the respective principal amounts (or accreted values in
the case of Indebtedness issued with an original issue discount) of
the Notes and such other Indebtedness then outstanding or to the
repurchase of the Notes and such other Indebtedness pursuant to an
irrevocable, unconditional offer (the "Asset Sale Offer") to
repurchase such Indebtedness at a purchase price (the "Asset Sale
Offer Price") of 100% of the principal amount thereof in the case of
the Notes or 100% of the principal amount (or accreted value in the
case of Indebtedness issued with an original issue discount) plus, in
each case, accrued interest and Liquidated Damages, if any, to the
date of payment, or
(B) within 330 days of such Asset Sale, the Asset Sale Offer Amount
is (i) invested (or committed, pursuant to a binding commitment
subject only to reasonable, customary closing conditions, to be
invested, and in fact is so invested, within an additional 120 days)
in tangible assets and property (other than notes, obligations or
securities), which in the good faith, reasonable judgment of the Board
of Directors of Services or CCPR, as the case may be, are of a type
used in a Related Business, or Capital Stock of a Person (which, if
such Person becomes a Subsidiary of Services or CCPR, by virtue of
such Asset Sale, shall initially be designated a Restricted
Subsidiary) all or substantially all of whose assets and property (in
the good faith, reasonable judgment of the Board of Directors of
Services or CCPR, as the case may be) are of a type used in a Related
Business (provided that, with respect to such Capital Stock, all of
the requirements of the last proviso of clause (v) of the following
paragraph (b) shall have been satisfied) or (ii) used to retire Senior
Debt,
(2) with respect to any transaction or related series of transactions of
securities, property or assets with an aggregate fair market value in
excess of $1,000,000, at least 75% of the value of consideration for the
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assets disposed of in such Asset Sale, excluding (a) Senior Debt (and any
Refinancing Indebtedness issued to refinance any such Indebtedness) assumed
by a transferee which assumption permanently reduces the amount of
Indebtedness outstanding on the Issue Date and permitted to have been
incurred pursuant to Section 4.07 hereof (including that in the case of a
revolver or similar arrangement that makes credit available, such
commitment is permanently reduced by such amount), (b) Purchase Money
Indebtedness secured exclusively by the assets subject to such Asset Sale
which is assumed by a transferee and (c) marketable securities that are
promptly converted into cash or Cash Equivalents, consists of cash or Cash
Equivalents, provided that any cash or Cash Equivalents received within 12
months following any such Asset Sale upon conversion of any property or
assets (other than in the form of cash or Cash Equivalents) received in
consideration of such Asset Sale shall be applied promptly in the manner
required of Net Cash Proceeds of any such Asset Sale as set forth above,
(3) no Default or Event of Default shall occur or be continuing after
giving effect to, on a pro forma basis, such Asset Sale, and
(4) the Board of Directors of Services or CCPR, as the case may be,
determines in good faith that Services, CCPR or such Restricted Subsidiary,
as applicable, would receive fair market value in consideration of such
Asset Sale.
(b) Notwithstanding the foregoing provisions of the prior paragraph:
(i) Services, CCPR and the Restricted Subsidiaries may, in the
ordinary course of business, convey, sell, lease, transfer, assign or
otherwise dispose of assets acquired and held for resale in the ordinary
course of business;
(ii) Services, CCPR and the Restricted Subsidiaries may convey,
sell, lease, transfer, assign or otherwise dispose of assets pursuant to
and in accordance with Article 5 hereof;
(iii) Services, CCPR and the Restricted Subsidiaries may sell or
dispose of damaged, worn out or other obsolete property in the ordinary
course of business so long as such property is no longer necessary for the
proper conduct of the business of Services, CCPR or such Restricted
Subsidiary, as applicable;
(iv) Services, CCPR and the Restricted Subsidiaries may convey,
sell, lease, transfer, assign or otherwise dispose of assets to Services,
CCPR or any of the Restricted Subsidiaries; and
(v) Services, CCPR and the Restricted Subsidiaries may, in the
ordinary course of business (or, if otherwise than in the ordinary course
of business upon receipt of a favorable written opinion by a financial
advisor of national reputation who is not an Affiliate of Services, CCPR or
any of the Subsidiaries as to the fairness from a financial point of view
to Services, CCPR or such Restricted Subsidiary of the proposed
transaction), exchange all or a portion of its property, businesses or
assets that are outside the Commonwealth of Puerto Rico and represent not
more than 5.0% of the aggregate Net Pops of Services, CCPR and the
Restricted Subsidiaries as of the Issue Date for property, business or
assets which, or Capital Stock of a Person all or substantially all of
whose assets, are of a type used in a wireless communications business
(provided that such Person shall initially be designated a Restricted
Subsidiary if such Person becomes a Subsidiary of Services or CCPR by
virtue of such Asset Sale), or a combination of any such property,
businesses or assets, or Capital Stock of such a Person and cash or Cash
Equivalents; provided that (i) there shall not exist immediately prior or
subsequent thereto a Default or an Event of Default, (ii) a majority of the
independent directors of the Board of Directors of Services or CCPR, as the
case may be, shall have approved a resolution of the Board of Directors
that such exchange is fair to Services, CCPR or such Restricted Subsidiary,
as the case may be, and (iii) any cash or Cash Equivalents received
pursuant to any such exchange shall be applied in the manner applicable to
Net Cash Proceeds from an Asset Sale as set forth pursuant to the
provisions of the immediately preceding paragraph of this Section 4.14, and
(iv) the Net Pops so received in the exchange should be at least equal to
the Net Pops so exchanged; provided, further that any Capital Stock of a
Person received in an Asset Sale pursuant to
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this clause (iv) shall be owned directly by Services, CCPR or a Restricted
Subsidiary and, when combined with the Capital Stock of such Person already
owned by Services, CCPR and the Restricted Subsidiaries, shall constitute a
majority of the voting power and Capital Stock of such Person, unless
Services or CCPR has received a binding commitment from such Person (or the
direct or indirect parent of such Person) that such Person (or the direct
or indirect parent of such Person) will distribute to Services or CCPR in
cash an amount equal to CCPR's Annualized Operating Cash Flow (determined
as of the date of such Asset Sale) attributable to the property, business
or assets of Services, CCPR and the Restricted Subsidiaries exchanged in
connection with such Asset Sale during each consecutive 12-month period
subsequent to such Asset Sale (unless and until Services or CCPR shall have
sold of such Capital Stock).
Restricted Payments that are made in compliance with, and are counted
against amounts available to be made as Restricted Payments pursuant to Section
4.05 hereof, without giving effect to clause (i) of the second paragraph
thereof, shall not be deemed to be Asset Sales.
Section 4.15. Guarantees of Services' Indebtedness by Restricted Subsidiaries.
In the event that any Restricted Subsidiary, directly or indirectly,
guarantees any Indebtedness of Services other than the Notes (the "Other
Indebtedness"), Services and CCPR shall cause such Restricted Subsidiary to
deliver to the Trustee a supplemental indenture (in substantially the same form
of Exhibit F, hereto) pursuant to which such Restricted Subsidiary (the
"Additional Guarantor") shall concurrently guarantee Services' Obligations under
this Indenture and the Notes (the "Additional Guarantee") to the same extent
that such Restricted Subsidiary guaranteed Services' Obligations under the Other
Indebtedness (including waiver of subrogation, if any), provided that if such
Other Indebtedness is Senior Debt, the Additional Guarantee shall be
subordinated in right of payment to the guarantee of such Other Indebtedness, as
provided by Article 10 hereof, and such Additional Guarantee shall be on the
same terms and subject to the same conditions as the initial Guarantee given by
CCPR under this Indenture. Each Additional Guarantee shall by its terms provide
that the Additional Guarantor making such Additional Guarantee will be
automatically and unconditionally released and discharged from its obligations
under such Additional Guarantee upon the release or discharge of the guarantee
of the other Indebtedness that resulted in the creation of such Additional
Guarantee, except a discharge or release by, or as a result of, any payment
under the guarantee of such Other Indebtedness by such Additional Guarantor.
Section 4.16. No Senior Subordinated Indebtedness.
Services shall not incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that is subordinated or junior in
right of payment to any Senior Debt of Services and senior in any respect in
right of payment to the Notes, and CCPR shall not incur, create, issue, assume,
guarantee or otherwise become liable for any Indebtedness that is subordinated
or junior in right of payment to its Senior Debt and senior in any respect in
right of payment to the Guarantee.
Section 4.17. Status As Investment Company.
Services, CCPR and the Restricted Subsidiaries shall not become
"investment companies" (as that term is defined in the Investment Company Act of
1940, as amended), or otherwise become subject to regulation under the
Investment Company Act.
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets.
Services and CCPR shall not consolidate with or merge with or into another
Person, or sell, lease, convey, transfer or otherwise dispose of all or
substantially all of its assets (computed on a consolidated basis), whether in a
single transaction or a series of related transactions, to another Person or
group of affiliated Persons, unless (i) either (a) Services or CCPR, as
applicable, is the continuing entity or (b) the resulting, surviving or
transferee entity is a corporation organized under the laws of the United
States, any state thereof, the District of Columbia or the
42
Commonwealth of Puerto Rico and expressly assumes by supplemental indenture all
of the obligations of Services or CCPR in connection with the Notes, the
Guarantee and this Indenture, as applicable; (ii) no Default or Event of Default
shall exist or shall occur immediately after giving effect on a pro forma basis
to such transaction; (iii) except in a case of a merger of Services or CCPR with
or into one or more Wholly Owned Restricted Subsidiaries of Services or CCPR,
immediately after giving effect to such transaction on a pro forma basis, the
consolidated resulting surviving or transferee entity would immediately
thereafter be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Annualized Operating Cash Flow Ratio provision set forth in
Section 4.07 hereof and (iv) Services or CCPR shall have delivered to the
Trustee an Officers' Certificate confirming compliance with the requirements of
this Section 5.01, provided, however, that this Section 5.01 shall not prohibit
any merger or consolidation between Services and CCPR.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer, lease,
conveyance or other disposition of all or substantially all of the assets of
Services or CCPR in accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or with which or into Services or CCPR
is merged or to which such sale, assignment, transfer, lease, conveyance or
other disposition is made shall succeed to, and be substituted for, and may
exercise every right and power of, Services or CCPR under this Indenture with
the same effect as if such successor has been named as Services or CCPR herein;
provided, however, that neither Services, CCPR nor any such successor
corporation shall be released from its Obligation to pay the principal of,
premium, if any, and accrued and unpaid interest on, and Liquidated Damages, if
any, with respect to the Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if:
(i) the failure by Services to pay any installment of interest or
Liquidated Damages, if any, on the Notes as and when the same
becomes due and payable and the continuance of any such failure
for 30 days, whether or not prohibited by Article 10 hereof;
(ii) the failure by Services to pay all or any part of the principal
of, or premium on, if any, the Notes when and as the same
becomes due and payable at maturity, redemption, by
acceleration or otherwise, including, without limitation,
payment of the Change of Control Payment or the Asset Sale
Offer Price, whether or not prohibited by Article 10 hereof;
(iii) the failure by Services or CCPR to observe or perform any other
covenant or agreement contained in the Notes, the Guarantee or
this Indenture and, subject to certain exceptions, the
continuance of such failure for a period of 30 days after
written notice is given to Services or CCPR, as the case may
be, by the Trustee or to Services or CCPR, as the case may be,
and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Notes outstanding;
(iv) in existence when Services, CCPR or any Significant Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
(C) consents to the appointment of a Custodian (as
hereinafter defined) of it or for all or substantially
all of its property, or
43
(D) makes a general assignment for the benefit of its
creditors;
(v) in existence when a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(A) is for relief against Services, CCPR or any Significant
Subsidiary in an involuntary case,
(B) appoints a Custodian of Services, CCPR or any Significant
Subsidiary or for all or substantially all of the
property Services, CCPR or any Significant Subsidiary, or
(C) orders the liquidation of Services, CCPR or any
Significant Subsidiary,
and any such order or decree remains unstayed and in effect for
60 days;
(vi) (A) a default in any Indebtedness (other than the Credit
Agreement) of Services, CCPR or any of the Restricted
Subsidiaries with an aggregate principal amount in excess of $5
million (1) resulting from the failure to pay principal or
interest (in the case of an interest default or a default in
the payment of principal other than at its stated maturity,
after the expiration of the applicable grace period) when due
or (2) as a result of which the maturity of such Indebtedness
has been accelerated prior to its stated maturity, or (B) a
default in the Credit Agreement (with an aggregate principal
amount in excess of $5 million outstanding with respect
thereto) (1) resulting from the failure to pay principal at
maturity or (2) as a result of which the maturity of such
Indebtedness has been accelerated prior to its stated maturity;
(vii) final unsatisfied judgments not covered by insurance
aggregating in excess of $5 million, at any one time rendered
against Services, CCPR or any of the Restricted Subsidiaries
and not stayed, fully bonded, discharged, paid or vacated
within 60 days; and
(viii) except as permitted by this Indenture, the Guarantee shall be
held in any final judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and
effect or CCPR, or any Person acting on behalf of CCPR, shall
deny or disaffirm its obligations under its Guarantee.
The term "Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
Section 6.02. Acceleration.
(a) If an Event of Default occurs and is continuing (other than an Event
of Default specified in Sections 6.01(iv) and (v) hereof, relating to Services,
CCPR or any Restricted Subsidiary, then in every such case, unless the principal
of all of the Notes shall have already become due and payable, either the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding, by notice in writing to Services (and to the Trustee if
given by Holders) specifying the respective Event of Default and that it is a
"notice of acceleration" (the "Acceleration Notice"), may declare the principal
of, premium, accrued and unpaid interest and Liquidated Damages, if any, on all
of the Notes to be due and payable, and the same (i) shall become immediately
due and payable or (ii) if there are any amounts outstanding under the Credit
Agreement, shall become immediately due and payable upon the first to occur of
an acceleration under the Credit Agreement or five Business Days after receipt
by Services and the Representative under the Credit Agreement of such
Acceleration Notice but only if such Event of Default is then continuing. If an
Event of Default specified in Sections 6.01(iv) and (v) above, relating to
Services, CCPR or any Significant Restricted Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a Significant
Restricted Subsidiary occurs, all principal and accrued interest thereon shall
be
44
immediately due and payable on all outstanding Notes without any declaration or
other act on the part of the Trustee or the Holders.
(b) In the event of a declaration of acceleration of the Notes because an
Event of Default has occurred and is continuing as a result of the acceleration
of any Indebtedness described in Section 6.01(vi) hereof, the declaration of
acceleration of the Notes shall be automatically annulled if holders of
Indebtedness described in Section 6.01(vi) hereof have rescinded the declaration
of acceleration in respect of such Indebtedness within 30 days of the date of
such declaration and if (i) the annulment of the acceleration of the Notes would
not conflict with any judgment or decree of a court of competent jurisdiction,
and (ii) all existing Events of Default, except nonpayment of principal or
interest on the Notes that became due solely because of the acceleration of the
Notes, have been cured or waived. The Holders of a majority in aggregate
principal amount of Notes by notice to the Trustee may rescind such acceleration
and its consequences if all existing Events of Default, other than the non-
payment of the principal of, premium, interest and Liquidated Damages, if any,
on the Notes which have become due solely by such acceleration, have been cured
or waived.
(c) In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of Services with the
intention of avoiding payment of the premium that Services would have had to pay
if Services then had elected to redeem the Notes pursuant to Section 3.07
hereof, an equivalent premium shall also become and be immediately due and
payable to the extent permitted by law upon the acceleration of the Notes. If
an Event of Default occurs prior to February 1, 2002, by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of Services with the
intention of avoiding the prohibition on redemption of the Notes prior to
February 1, 2002, then the premium payable for purposes of this paragraph for
each of the years beginning on February 1 of the years set forth below shall be
as set forth in the following table, expressed as a percentage of the amount
that would otherwise be due but for the provisions of this paragraph, plus
accrued interest, if any, to the date of payment:
Year Percentage
---- ----------
1997..................................................... 110.00%
1998..................................................... 109.00%
1999..................................................... 108.00%
2000..................................................... 107.00%
2001..................................................... 106.00%
2002..................................................... 105.00%
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal of, premium, if any, or any
accrued and unpaid interest on, or Liquidated Damages, if any, with respect to
the Notes or to enforce the performance of any provision of the Notes, the
Guarantee or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies are cumulative
to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount of
the Notes then outstanding by notice to the Trustee may on behalf of all Holders
of all of the Notes waive any existing Default or Event of Default and its
consequences under this Indenture, except a continuing Default or Event of
Default in the payment of the principal of, premium, if any, interest on, and
Liquidated Damages, if any, with respect to, such Notes, or a Default with
respect to any covenant or provision of this Indenture or the Notes which cannot
be modified or amended without the consent of each Holder of each outstanding
Note affected. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
45
purpose of this Indenture; provided that no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
Section 6.05. Control by Majority.
The Holders of a majority in aggregate principal amount of the then
outstanding Notes may 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 it by this Indenture. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of other Holders or would
involve the Trustee in personal liability.
Section 6.06. Limitation on Suits.
A Holder may pursue a remedy with respect to this Indenture or the Notes
only if:
(a) the Holder gives to the Trustee written notice of a continuing Event
of Default;
(b) the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holder or Holders offer and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or
expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(e) during such 60-day period the Holders of a majority in aggregate
principal amount of the then outstanding Notes do not give the Trustee
a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
Holders may not enforce this Indenture, except as provided herein.
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of, premium, if any, and any accrued and
unpaid interest on, and Liquidated Damages, if any, with respect to a Note, on
or after a respective due date expressed in the Note, or to bring suit for the
enforcement of any such payment on or after such respective date, shall not be
impaired or affected without the consent of the Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(i) or (ii) hereof occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against Services for (i) the principal,
premium and Liquidated Damages, if any, and interest remaining unpaid on the
Notes, (ii) interest on overdue principal and premium, if any, and, to the
extent lawful, interest, and (iii) such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel ("Trustee Expenses").
Section 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for Trustee Expenses) and the Holders allowed in any
judicial proceeding relative to Services (or any other obligor upon the Notes),
its creditors or its property and
46
shall be entitled and empowered to collect, receive and distribute to Holders
any money or other property payable or deliverable on any such claims and each
Holder authorizes any Custodian in any such judicial proceeding to make such
payments to the Trustee, and if the Trustee shall consent to the making of such
payments directly to the Holders any such Custodian is hereby authorized to make
such payments directly to the Holders, and to pay to the Trustee any amount due
to it hereunder for Trustee Expenses, and any other amounts due the Trustee
under Section 7.07 hereof. To the extent that the payment of any such Trustee
Expenses, and any other amounts due the Trustee under Section 7.07 hereof out of
the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties which the
Holders may be entitled to receive in such proceeding, whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order:
First: to the Trustee for amounts due under Section 7.07 hereof;
Second: to holders of Senior Debt to the extent required by Article 10
hereof;
Third: to Holders for amounts due and unpaid on the Notes for principal,
premium and Liquidated Damages, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Notes for principal, premium and Liquidated Damages, if any, and interest,
respectively; and
Fourth: to Services or to such party as a court of competent jurisdiction
shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders.
Section 6.11. Undertaking for Costs.
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 a
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section does
not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07
hereof, or a suit by Holders of more than 10% in aggregate principal amount of
the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default occurs and is continuing, the Trustee shall (i)
exercise the rights and powers vested in it by this Indenture, and (ii) use the
same degree of care and skill in exercising such rights and powers as a prudent
man would exercise or use under the circumstances in the conduct of his own
affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this
Indenture against the Trustee; and
47
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own wilful misconduct, except
that:
(i) this paragraph does not limit the effect of Section 7.01(b)
hereof;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a
direction it receives pursuant to Sections 6.02, 6.04 and 6.05
hereof.
(d) Whether or not expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), (c) and (e) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture unless
the Trustee receives indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money it receives
except as the Trustee may agree in writing with Services. Money the Trustee
holds in trust need not be segregated from other funds except to the extent
required by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may rely on any document it believes to be genuine and to
have been signed or presented by the proper Person. The Trustee shall not be
obligated to investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may reasonably
require an Officers' Certificate or an Opinion of Counsel, or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(c) The Trustee may act through agents or attorneys and shall not be
responsible for any misconduct or negligence of any agent or attorney appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with Services, CCPR or an Affiliate of
Services or CCPR with the same rights it would have if it were not Trustee.
However, if the Trustee acquires any conflicting interest it must eliminate such
conflict within 90 days, apply to the SEC for permission to continue as Trustee
or resign, all in accordance with the TIA. Any Agent may do the same with like
rights. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
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Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture, the Guarantee or the Notes, it shall
not be accountable for Services' use of the proceeds from the Notes or for any
money paid to Services or upon Services' direction under any provisions hereof,
it shall not be responsible for the use or application of any money any Paying
Agent other than the Trustee receives, and it shall not be responsible for any
statement or recital herein or any statement in the Notes, the Guarantee or any
other document furnished or issued in connection with the sale of the Notes or
pursuant to this Indenture, other than its certificate of authentication.
Section 7.05. Notice to Holders of Defaults and Events of Default.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders a notice of the Default
or Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment of principal of or premium, if any or
interest on any Note (including any failure to redeem Notes called for
redemption or any failure to purchase Notes tendered pursuant to an Offer that
are required to be purchased by the terms of this Indenture), the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the Holders' interests.
Section 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with May 15, 1997, the Trustee
shall mail to all Holders a brief report dated as of such reporting date that
complies with, and to the extent is required under, Section 313 of the TIA.
Commencing at the time this Indenture is qualified under the TIA, a copy of
each report at the time of its mailing to Holders shall be filed with the SEC
and each national securities exchange on which the Notes are listed. Services
shall notify the Trustee when and if the Notes are listed on any national
securities exchange.
Section 7.07. Compensation and Indemnity.
Services shall pay to the Trustee (in its capacities as Trustee, Paying
Agent and/or Registrar) from time to time reasonable compensation for its
services hereunder. The Trustee's compensation shall not be limited by any law
on compensation of a trustee of an express trust. Services shall reimburse the
Trustee upon request for all reasonable disbursements, advances, fees and
expenses it incurs or makes in addition to the compensation for its services.
Such expenses shall include the reasonable compensation, disbursements and
expenses of the Trustee's agents and counsel.
Services shall indemnify and hold harmless the Trustee (in its capacities
as Trustee, Paying Agent and/or Registrar) against any and all losses,
liabilities or expenses the Trustee incurs arising out of or in connection with
the acceptance or administration of its duties under this Indenture, except for
any expense or indemnity against any loss or liability the Trustee incurs
through negligence or bad faith. The Trustee shall notify Services promptly of
any claim for which it may seek indemnity. Failure by the Trustee to so notify
Services shall not relieve Services of its Obligations hereunder. Services
shall defend the claim and the Trustee shall reasonably cooperate in the
defense. The Trustee may have one separate counsel and Services shall pay the
reasonable fees and expenses of such counsel. Services need not pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld.
Services' Obligations under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.
To secure Services' payment of its Obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Notes on all money or property the
Trustee holds or collects, except such money or property held in trust to
49
pay principal of, premium, if any, and any accrued and unpaid interest on, and
Liquidated Damages, if any, with respect to particular Notes. Such Lien shall
survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(iv) or (v) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute administrative expenses under any Bankruptcy
Law.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign and be discharged from the trust hereby created by
so notifying Services in writing. The Holders of a majority in principal amount
of the then outstanding Notes may remove the Trustee by so notifying the Trustee
and Services in writing. Services may remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10 hereof;
(ii) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy
Law;
(iii) a Custodian or public officer takes charge of the Trustee or its
property; or
(iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, Services shall promptly appoint a successor Trustee,
provided that the Holders of a majority in aggregate principal amount of the
then outstanding Notes may appoint a successor Trustee to replace any successor
Trustee appointed by Services.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, Services or the
Holders of at least 10% in aggregate principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to Services. Thereupon, the resignation or removal
of the retiring Trustee shall become effective and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its appointment to Holders. The
retiring Trustee shall promptly transfer all property it holds as Trustee to the
successor Trustee, provided all sums owing to the retiring Trustee hereunder
have been paid and subject to the Lien provided for in Section 7.07 hereof.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
Services' Obligations under Section 7.07 hereof shall continue for the retiring
Trustee's benefit with respect to expenses and liabilities it incurred prior to
being replaced.
Section 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee.
50
Section 7.10. Eligibility; Disqualification.
The Trustee shall at all times (i) be a corporation organized and doing
business under the laws of the United States of America, of any state thereof,
or the District of Columbia authorized under such laws to exercise corporate
trustee power, (ii) be subject to supervision or examination by federal or state
authority, (iii) have a combined capital and surplus of at least $10,000,000 as
set forth in its most recent published annual report of condition, and (iv)
satisfy the requirements of Sections 310(a)(1), (2) and (5) of the TIA. The
Trustee is subject to section 310(b) of the TIA.
Section 7.11. Preferential Collection of Claims Against Services.
The Trustee is subject to section 311(a) of the TIA, excluding any creditor
relationship listed in section 311(b) of the TIA. A Trustee who has resigned or
been removed shall be subject to section 311(a) of the TIA to the extent
indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
Services may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes and the
Guarantee upon compliance with the conditions set forth below in this Article 8.
Section 8.02. Legal Defeasance and Discharge.
Upon Services' exercise under Section 8.01 hereof of the option applicable
to this Section 8.02, each of Services and the Guarantor shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding Notes
and the Guarantee on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means
that Services and the Guarantor shall be deemed to have paid and discharged the
entire Indebtedness represented by the outstanding Notes and the Guarantee,
which shall thereafter be deemed to be "outstanding" only for the purposes of
Section 8.05 hereof and the other Sections of this Indenture referred to in (a)
and (b) below of this Section 8.02, and to have satisfied all its other
obligations under such Notes and the Guarantee and this Indenture (and the
Trustee, on demand of and at the expense of Services, shall execute proper
instruments acknowledging the same), except for the following provisions which
shall survive until otherwise terminated or discharged hereunder: (a) the
rights of Holders of outstanding Notes to receive payments in respect of the
principal of, premium, if any, and interest and Liquidated Damages, if any, on
such Notes when such payments are due or on the redemption date, as the case may
be, from the trust referred to in Section 8.04(a) hereof, (b) Services'
obligations with respect to such Notes under Article 2 and Section 4.12 hereof,
(c) the rights, powers, trusts, duties and immunities of the Trustee under this
Indenture and Services' obligations in connection therewith, (d) Services'
rights to redeem Notes under Section 3.07 hereof and (e) the provisions of this
Article 8. Subject to compliance with this Article 8, Services may exercise its
option under this Section 8.02 notwithstanding the prior exercise of its option
under Section 8.03 hereof. Services' Obligations in Sections 7.07, 8.05 and
8.06 shall survive.
Section 8.03. Covenant Defeasance.
Upon Services' exercise under Section 8.01 hereof of the option applicable
to this Section 8.03, Services and Guarantor shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Sections 4.05, 4.06, 4.07, 4.08,
4.09, 4.10, 4.11, 4.13, 4.14, 4.15, 4.16, 4.17, 5.01 and 11.01 hereof and any
future covenant added to this Indenture with respect to the outstanding Notes
and the Guarantee on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes and the Guarantee
shall thereafter be deemed not "outstanding" for the purposes of
51
any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes and the Guarantee shall not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Notes and the Guarantee, Services, CCPR or the
Subsidiaries may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.01 hereof, but,
except as specified above, the remainder of this Indenture and such Notes and
Guarantee shall be unaffected thereby. In addition, upon Services' exercise
under Section 8.01 hereof of the option applicable to this Section 8.03 hereof,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
Sections 6.01(iii), (vi) through (viii) hereof shall not constitute Events of
Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section
8.02 or 8.03 hereof to the outstanding Notes and the Guarantee:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) Services must irrevocably deposit with the Trustee, in trust, for
the benefit of the Holders of the Notes, (i) cash in United
States dollars, (ii) non-callable Government Securities which
through the scheduled payment of principal, premium, if any,
interest and liquidated damages, if any, in respect thereof in
accordance with their terms will provide, not later than one day
before the due date of payment, cash in United States dollars or
(iii) a combination thereof, in such amounts as shall be
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge the principal of, premium, if any, and interest and
Liquidated Damages, if any, on the outstanding Notes on the
stated maturity or on the applicable redemption date, as the case
may be, and Services must specify whether the Notes are being
defeased to maturity or to a particular redemption date;
(b) in the case of an election under Section 8.02 hereof, Services
shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming
that (A) Services has received from, or there has been published
by, the Internal Revenue Service a ruling or (B) since the date
hereof, there has been a change in the applicable federal income
tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the Holders of the
outstanding Notes shall not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance
and shall be subject to federal income tax on the same amounts,
in the same manner and at the same time as would have been the
case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, Services
shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming
that the Holders of the outstanding Notes shall not recognize
income, gain or loss for federal income tax purposes as a result
of such Covenant Defeasance and shall be subject to federal
income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Covenant
Defeasance had not occurred;
(d) no Default or Event of Default has occurred and is continuing on
the date of such deposit or insofar as Sections 6.01(iv) and (v)
hereof are concerned, at any time in the period ending on the
91st day after the date of deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of
such period);
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(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under this
Indenture or any other material agreement or instrument
including, without limitation, the Credit Agreement to which
Services, CCPR or any of the Subsidiaries is a party or by which
Services, CCPR or any of the Subsidiaries is bound;
(f) Services shall have delivered to the Trustee an Opinion of
Counsel to the effect that after the 91st day after the date of
the deposit, the trust funds shall not be subject to the effect
of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally;
(g) Services shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by Services
with the intent of preferring the Holders of Notes over the other
creditors of Services with the intent of defeating, hindering,
delaying or defrauding any other creditors of Services or others;
(h) Services shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the Legal
Defeasance or the Covenant Defeasance have been complied with;
and
(i) the Trustee shall have received such other documents and
assurances as the Trustee shall have reasonably required.
Section 8.05. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including Services acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, interest and
Liquidated Damages, if any, but such money need not be segregated from other
funds except to the extent required by applicable law.
Services shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the Trustee
shall deliver or pay to Services from time to time upon the written request of
Services and be relieved of all liability with respect to any money or non-
callable Government Securities held by it as provided in Section 8.04 hereof
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 8.04(a) hereof), are
in excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06. Repayment to Services.
Any money deposited with the Trustee or any Paying Agent, or then held by
Services, in trust for the payment of the principal of, premium, if any,
interest or Liquidated Damages, if any, on any Note and remaining unclaimed for
one year after such principal, and premium, if any, or interest or Liquidated
Damages, if any, has become due and payable shall be paid to Services on its
written request or (if then held by Services) shall be discharged from such
trust; and the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to Services for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust
53
money, and all liability of Services as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of Services cause to be published
once, in the New York Times and The Wall Street Journal (national edition),
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such notification
or publication, any unclaimed balance of such money then remaining shall be
repaid to Services.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States dollars
or non-callable Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations of Services and the Guarantor under this
Indenture, the Notes and the Guarantee shall be revived and reinstated as though
no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time
as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided,
however, that, if Services or the Guarantor makes any payment of principal of,
premium, if any, interest or Liquidated Damages, if any, on any Note following
the reinstatement of its obligations, Services or the Guarantor shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
Section 9.01. Amendments and Supplements Permitted Without Consent of Holders.
Notwithstanding Section 9.02 hereof, Services, CCPR and the Trustee may
amend or supplement this Indenture or the Notes without the consent of any
Holder (a) to cure any ambiguity, defect or inconsistency; (b) to provide for
uncertificated Notes in addition to or in place of certificated Notes; (c) to
provide for the assumption by a successor corporation of Services' Obligations
to the Holders in the event of a merger, consolidation or disposition pursuant
to Article 5 hereof; (d) to comply with SEC's requirements to effect or maintain
the qualification of this Indenture under the TIA; (e) to provide for additional
guarantee with respect to the Notes; or (f) to make any change that does not
materially adversely affect any Holder's legal rights under this Indenture.
No amendment may be made to any provision of Article 10 that would
adversely affect the rights of any holder of Senior Debt then outstanding unless
the holders of such Senior Debt (or their Representative) consent to such
change.
Upon Services' request, after receipt by the Trustee of a resolution of the
Board of Directors authorizing the execution of any amended or supplemental
indenture and the documents described in Section 9.06 hereof, the Trustee shall
join with Services and CCPR in the execution of any amended or supplemental
indenture authorized or permitted by the terms of this Indenture and to make any
further appropriate agreements and stipulations that may be contained in any
such amended or supplemental indenture, but the Trustee shall not be obligated
to enter into an amended or supplemental indenture that affects its own rights,
duties or immunities under this Indenture or otherwise.
Section 9.02. Amendments and Supplements Requiring Consent of Holders.
Subject to Section 6.07 hereof and Section 10.13, Services, CCPR and the
Trustee may amend or supplement this Indenture or the Notes with the consent of
the Holders of at least a majority in principal amount of the Notes then
outstanding (including, without limitation, consents obtained in connection with
a purchase of, or tender offer or exchange offer for Notes), and any existing
Default or Event of Default (other than a payment Default) or compliance with
any provision of this Indenture or the Notes may be waived with the consent of
the holders of a majority in principal amount of the then outstanding Notes
(including consents obtained in connection with a tender offer or exchange offer
for Notes).
54
Upon Services' request and after receipt by the Trustee of a resolution of
the Board of Directors authorizing the execution of any supplemental indenture,
evidence of the Holders' consent, and the documents described in Section 9.06
hereof, the Trustee shall join with Services and CCPR in the execution of such
amended or supplemental indenture unless such amended or 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 not be obligated
to, enter into such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders under this Section
9.02 to approve the particular form of any proposed amendment, supplemental
indenture or waiver, but it shall be sufficient if such consent approves the
substance thereof. After an amendment, supplemental indenture or waiver under
this Section 9.02 becomes effective, Services shall mail to each Holder affected
thereby a notice briefly describing the amendment supplement or waiver. Any
failure of Services to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amendment,
supplemental indenture or waiver.
Subject to Sections 6.02, 6.04 and 6.07 hereof, the Holders of a majority
in aggregate principal amount of the Notes then outstanding may waive compliance
in a particular instance by Services or CCPR with any provision of this
Indenture, the Notes or the Guarantee. However, without the consent of each
Holder affected, an amendment, supplement or waiver may not (with respect to any
Note or Guarantee held by a non-consenting Holder): (i) change the Stated
Maturity of or the Change of Control Purchase Date or the Asset Sale Offer
Period on any Note, or reduce the principal amount thereof or the rate (or
extend the time for payment) of interest thereon or any premium payable upon the
redemption or purchase thereof, or change the place of payment where, or the
coin or currency in which, any Note or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption,
on or after the date of redemption), or reduce the Change of Control Payment or
the Asset Sale Offer Price or alter the redemption provisions or the provisions
of Section 4.13 hereof in a manner adverse to the Holders, or (ii) reduce the
percentage in principal amount of the outstanding Notes, the consent of whose
Holders is required for any such amendment, supplemental indenture or waiver
provided for in this Indenture, or (iii) modify any of the waiver provisions,
except to increase any required percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each outstanding Note affected thereby. In addition, any amendment
to the provisions of Article 10 or Section 11.04 hereof will require the consent
of the Holders of at least 75% in aggregate principal amount of the Notes then
outstanding if such amendment would adversely affect the rights of Holders of
Notes.
Section 9.03. Compliance with TIA.
Every amendment or supplement to this Indenture or the Notes shall be set
forth in an amendment or supplemental indenture that complies with the TIA as
then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it
by a Holder of a Note is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same Indebtedness as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as to
his or her Note or portion of a Note if the Trustee receives the notice of
revocation before the date on which the Trustee receives an Officers'
Certificate certifying that the Holders of the requisite principal amount of
Notes have consented to the amendment or waiver.
Services may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders of Notes entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then,
notwithstanding the provisions of the immediately preceding paragraph, those
Persons who were Holders of Notes at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Holders of Notes after such record
date. No consent shall be valid or effective for more than 90 days after such
record date unless consents from Holders of the principal amount of Notes
required hereunder for such
55
amendment, supplement or waiver to be effective shall have also been given and
not revoked within such 90-day period.
After an amendment or waiver becomes effective in accordance with its
terms, it shall bind every Holder, unless it is of the type described in any of
clauses (i) through (viii) of Section 9.02 hereof. In such case, the amendment
or waiver shall bind each Holder who has consented to it and every subsequent
Holder of a Note that evidences the same debt as the consenting Holder's Note.
Section 9.05. Notation on or Exchange of Notes.
The Trustee may (at Services' expense) place an appropriate notation about
an amendment, supplement or waiver on any Note thereafter authenticated.
Services in exchange for all Notes may issue and the Trustee shall authenticate
new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
Section 9.06. Trustee Protected.
The Trustee shall sign any amendment or supplemental indenture authorized
pursuant to this Article 9 if the amendment or supplemental indenture does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, but need not, sign it. In signing such amendment
or supplemental indenture, the Trustee shall be entitled to receive and, subject
to Section 7.01 hereof, shall be fully protected in relying upon, an Officers'
Certificate and Opinion of Counsel as conclusive evidence that such amendment or
supplemental indenture is authorized or permitted by this Indenture, that it is
not inconsistent herewith, and that it will be valid and binding upon Services
and CCPR in accordance with its terms. Services and CCPR may not sign an
amendment or supplemental indenture until the Board of Directors approves it.
ARTICLE 10
SUBORDINATION
Section 10.01. Agreement to Subordinate.
Services and CCPR agree, and each Holder by accepting a Note agrees, that
the payment of principal of, premium, interest and Liquidated Damages, if any,
on the Notes shall be subordinated in right of payment, to the extent and in the
manner provided in this Article 10 and Article 11, to the prior payment in full
in cash or Cash Equivalents of all Obligations with respect to Senior Debt,
whether outstanding on the date hereof or thereafter incurred, and that the
subordination is for the benefit of the holders of Senior Debt.
Section 10.02. Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of Services or CCPR, as the case may be,
in a liquidation or dissolution of Services or CCPR, as the case may be, or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to Services, CCPR or their respective properties, an assignment for the
benefit of creditors or any marshalling of Services' or CCPR's assets and
liabilities:
(a) the holders of Senior Debt will be entitled to receive payment in full
in cash or Cash Equivalents of all Obligations due in respect of such Senior
Debt (including interest after the commencement of any such proceeding at the
rate specified in the applicable Senior Debt, whether or not such interest is
allowable as a claim in any such proceeding) before the Holders shall be
entitled to receive any payment with respect to the Notes or the Guarantee
(except that Holders may receive (i) Permitted Junior Securities and any other
Permitted Junior Securities issued in exchange for any Permitted Junior
Securities and (ii) payments and other distributions made from the defeasance
trust created pursuant to Article 8 hereof); and
56
(b) until all Obligations with respect to Senior Debt are paid in full in
cash or Cash Equivalents, any distribution to which the Holders would be
entitled but for this Article 10 shall be made to the holders of Senior Debt
(except that Holders may receive (i) Permitted Junior Securities and any other
Permitted Junior Securities issued in exchange for any Permitted Junior
Securities and any securities issued in exchange for Senior Debt and (ii)
payments and other distributions made from the defeasance trust created pursuant
to Article 8 hereof).
Section 10.03. Default on Designated Senior Debt.
Services and CCPR may not make any payment upon or in respect of the Notes
or the Guarantee (except that Holders may receive (i) Permitted Junior
Securities and any other Permitted Junior Securities issued in exchange for any
Permitted Junior Securities and (ii) payments and other distributions made from
the defeasance trust created pursuant to Article 8 hereof and except for Capital
Stock of Services or a successor entity that is not Disqualified Capital Stock
of Services or such Successor entity) or make any deposit to the defeasance
trust created pursuant to Article 8 hereof if:
(i) a default in the payment of the principal of, premium, if any, or
interest on Designated Senior Debt occurs and is continuing; or
(ii) any other default occurs and is continuing with respect to Designated
Senior Debt that permits holders (or the Representatives) of the
Designated Senior Debt as to which such default relates to accelerate
its maturity and the Trustee receives a notice of such default (a
"Payment Blockage Notice") from Services, CCPR or the holders or
Representatives of Designated Senior Debt. If the Trustee receives
any such Payment Blockage Notice, no subsequent payment blockage
period shall be commenced for purposes of this Section 10.03 unless
and until (i) 360 days have elapsed since the initial effectiveness of
the immediately prior Payment Blockage Notice; provided that if any
Payment Blockage Notice is delivered by the holders of Designated
Senior Debt other than Senior Debt under the Credit Agreement, the
holders of Senior Debt under the Credit Agreement may give another
Payment Blockage Notice within such 360 day period so long as the
total number of days during which a Payment Blockage Notice is in
effect during such 360 day period does not exceed 179 days and (ii)
all scheduled payments of principal, premium, if any, interest and
Liquidated Damages, if any, on the Notes that have come due have been
paid in full in cash. No nonpayment default that existed or was
continuing on the date of delivery of any Payment Blockage Notice to
the Trustee shall be, or be made, the basis for a subsequent Payment
Blockage Notice unless such default has been cured or waived for a
period of not less than 90 consecutive days.
Services and CCPR may and shall resume payments on the Notes or the
Guarantee, as applicable:
(a) in the case of a payment default described in clause (i) above,
upon the date on which such default is cured or waived, and
(b) in case of a nonpayment default described in clause (ii) above,
the earlier of the date on which such nonpayment default is cured
or waived or 179 days after the date on which the applicable
Payment Blockage Notice is received, unless the maturity of any
Designated Senior Debt has been accelerated.
Section 10.04. Acceleration of Notes.
If payment of the Notes is accelerated because of an Event of Default,
Services shall promptly notify the Representative of any Senior Debt of the
acceleration.
57
Section 10.05. When Distribution Must Be Paid Over.
In the event that the Trustee or any Holder receives any payment of any
Obligations with respect to the Notes at a time when the Trustee or such Holder
has actual knowledge that such payment is prohibited by this Article 10 such
payment shall be held by the Trustee or such Holder, in trust for the benefit
of, and shall be paid forthwith over and delivered, upon written request to, the
holders of Senior Debt as their interest may appear or their Representative
under the indenture or other agreement (if any) pursuant to which Senior Debt
may have been issued, as their interest may appear, for application to the
payment of all Obligations with respect to Senior Debt remaining unpaid to the
extent necessary to pay such Obligations in full in accordance with their terms,
after giving effect to any concurrent payment or distribution to or for the
holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically set
forth in this Article 10, and no implied covenants or obligations with respect
to the holders of Senior Debt shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders or Services or
any other Person money or assets to which any holders of Senior Debt shall be
entitled by virtue of this Article 10 except if such payment is made as a result
of the willful misconduct or bad faith of the Trustee.
Section 10.06. Notice by Services.
Services shall promptly notify the Trustee and the Paying Agent of any
facts known to Services that would cause a payment of any Obligations with
respect to the Notes to violate this Article 10, but failure to give such notice
shall not affect the subordination of the Notes to the Senior Debt as provided
in this Article 10 except if such payment is made as a result of the willful
misconduct or bad faith of the Trustee.
Section 10.07. Subrogation.
After all Senior Debt is paid in full in cash or Cash Equivalents and until
the Notes are paid in full, Holders shall be subrogated (equally and ratably
with all other Indebtedness pari passu with the Notes) to the rights of holders
of Senior Debt to receive distributions applicable to Senior Debt to the extent
that distributions otherwise payable to the Holders have been applied to the
payment of Senior Debt. A distribution made under this Article 10 to holders of
Senior Debt that otherwise would have been made to Holders is not, as between
Services and Holders, a payment by Services on the Senior Debt.
Section 10.08. Relative Rights.
This Article 10 defines the relative rights of the Holders and holders of
Senior Debt. Nothing in this Indenture shall:
(i) impair, as between Services and the Holders, the obligation of
Services, which is absolute and unconditional, to pay principal of,
premium, if any, interest and Liquidated Damages, if any, on the
Notes in accordance with their terms;
(ii) affect the relative rights of Holders and creditors of Services
other than their rights in relation to holders of Senior Debt; or
(iii) prevent the Trustee or any Holder from exercising its available
remedies upon a Default or an Event of Default, subject to the
rights of holders of Senior Debt to receive distributions and
payments otherwise payable to Holders.
If Services fails because of this Article 10 to pay principal of, premium,
if any, interest or Liquidated Damages, if any, on a Note on the due date, the
failure is nevertheless a Default or an Event of Default.
58
Section 10.09. Subordination May Not Be Impaired by Services.
No right of any holder of Senior Debt to enforce the subordination of the
Indebtedness evidenced by the Notes shall be prejudiced or impaired by any act
or failure to act by Services or any Holder or by the failure of Services or any
Holder to comply with this Indenture.
Without in any way limiting the generality of the foregoing paragraph, the
holders of the Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders, without incurring
responsibility to the Holders and without impairing or releasing the
subordination provided in this Article or the obligations hereunder of the
Holders to the holders of Senior Debt, do any one or more of the following: (a)
change the manner, place or terms of payment or extend the time or payment of,
or renew or alter, Senior Debt or any instrument evidencing the same or any
agreement under which Senior Debt is outstanding; provided, however, that any
such alteration shall not (A) increase the amount of Senior Debt outstanding in
a manner prohibited by this Indenture or (B) otherwise violate Section 4.07
hereof; (b) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Debt; (c) release any Person liable in
any manner for the collection of Senior Debt; provided, however, that any such
sale, exchange, release or other transaction shall not violate Section 4.09
hereof; and (d) exercise or refrain from exercising any rights against Services
or any other Person; provided, however, that in no event shall any such actions
limit the right of the Holder to take any action to accelerate the maturity of
the Notes in accordance with the provisions set forth in Article 6 or to pursue
any rights or remedies against the parties to this Indenture under this
Indenture or under applicable laws if the taking of such action does not
otherwise violate the terms of this Article.
Section 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of Services referred to in this
Article 10, the Trustee and the Holders shall be entitled to rely upon any order
or decree made by any court of competent jurisdiction or upon any certificate of
such Representative or of the liquidating trustee or agent or other Person
making any distribution to the Trustee or to the Holders for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Debt and other Indebtedness of Services, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article 10.
Section 10.11. Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 10 or any other provision of
this Indenture, the Trustee or Paying Agent shall not be charged with knowledge
of the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee or Paying Agent, and the Trustee and the Paying
Agent may continue to make payments on the Notes, unless the Trustee or Paying
Agent shall have received at its Corporate Trust Office at least five Business
Days prior to the date of such payment written notice that the payment of any
Obligations with respect to the Notes would violate this Article 10. Only
Services or a Representative may give the notice. Nothing in this Article 10
shall impair the claims of, or payments to, the Trustee under or pursuant to
Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior Debt
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights.
Section 10.12. Authorization to Effect Subordination.
Each Holder by its acceptance thereof authorizes and directs the Trustee on
the Holder's behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article 10, and appoints the
Trustee to act as the Holder's attorney-in-fact for any and all such purposes.
If the Trustee does not file a proper proof of claim or proof of debt in the
form required in any proceeding referred to in Section 6.09 hereof at least 30
days before the expiration of the time to file such claim, a Representative of
the Designated Senior Debt is hereby authorized to file an appropriate claim for
and on behalf of the Holders of the Notes.
59
Section 10.13. Amendments.
Any amendment to the provisions of this Article 10 shall require the
consent of the Holders of at least 75% in aggregate principal amount of Notes
then outstanding if such amendment would adversely affect the rights of the
Holders of Notes.
ARTICLE 11
GUARANTEE OF NOTES
Section 11.01. Guarantee.
CCPR hereby fully and unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of this Indenture,
the Notes and the Obligations of Services hereunder and thereunder, that: (a)
the principal of, premium, if any, interest and Liquidated Damages, if any, on
the Notes will be promptly paid in full when due, subject to any applicable
grace period, whether at maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal, premium, if any, (to the extent permitted by
law) interest on any interest, if any, and Liquidated Damages, if any, on the
Notes, and all other payment Obligations of Services to the Holders or the
Trustee hereunder or thereunder will be promptly paid in full and performed, all
in accordance with the terms hereof and thereof; and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
Obligations, the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, subject to any applicable
grace period, whether at Stated Maturity, by acceleration, redemption or
otherwise. Failing payment when so due of any amount so guaranteed or any
performance so guaranteed for whatever reason, CCPR will be obligated to pay or
perform the same immediately. An Event of Default under this Indenture or the
Notes shall constitute an Event of Default under the Guarantee, and shall
entitle the Holders to accelerate the Obligations of CCPR hereunder in the same
manner and to the same extent as the Obligations of Services. CCPR hereby
agrees that its Obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder
with respect to any provisions hereof or thereof, the recovery of any judgment
against Services, any action to enforce the same or any other circumstance which
might otherwise constitute a legal or equitable discharge or defense of CCPR.
CCPR hereby waives diligence, presentment, demand of payment, filing of claims
with a court in the event of insolvency or bankruptcy of Services, any right to
require a proceeding first against Services, protest, notice and all demands
whatsoever and covenants that this Guarantee will not be discharged except by
complete performance of the Obligations contained in the Notes and this
Indenture. If any Holder or the Trustee is required by any court or otherwise to
return to Services, CCPR, or any Note Custodian, Trustee, liquidator or other
similar official acting in relation to either Services or CCPR, any amount paid
by either to the Trustee or such Holder, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. CCPR
agrees that it shall not be entitled to, and hereby waives, any right of
subrogation in relation to the Holders in respect of any Obligations guaranteed
hereby until payment in full of the Obligations hereunder. CCPR further agrees
that, as between CCPR, on the one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the Obligations guaranteed hereby may be
accelerated as provided in Article 6 for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations guaranteed hereby, and (y) in the
event of any declaration of acceleration of such Obligations as provided in
Article 6 hereof, such Obligations (whether or not due and payable) shall
forthwith become due and payable by CCPR for the purpose of this Guarantee.
Section 11.02. Execution and Delivery of the Guarantee.
To evidence its Guarantee set forth in Section 11.01 hereof, CCPR hereby
agrees that a notation of such Guarantee substantially in the form of Exhibit E
hereof shall be endorsed by an Officer of CCPR by manual or facsimile signature
on each Note authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of CCPR by an Officer of XXXX.
00
XXXX hereby agrees that its Guarantee set forth in Section 11.01 hereof
shall remain in full force and effect notwithstanding any failure to endorse on
each Note a notation of such Guarantee.
If an Officer whose signature is on this Indenture or on the Guarantee no
longer holds that office at the time the Trustee authenticates the Note on which
a Guarantee is endorsed, the Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Guarantee (in existence on or
after the date hereof) set forth in this Indenture on behalf of CCPR.
Section 11.03. "Trustee" to Include Paying Agent.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by Services and be then acting hereunder, the term "Trustee" as used
in this Article 11 shall in each case (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully and for all intents and purposes as if such Paying Agent were
named in this Article 11 in place of the Trustee.
Section 11.04. Subordination of Guarantee.
The obligations of CCPR under its Guarantee pursuant to this Article 11
shall be junior and subordinated to the Senior Debt of CCPR on the same basis as
the Notes are junior and subordinated to Senior Debt of Services. For the
purposes of the foregoing sentence, the Trustee and the Holders of Notes shall
have the right to receive and/or retain payments by CCPR only at such times as
they may receive and/or retain payments in respect of Notes pursuant to this
Indenture, including Article 10 hereof. In the event that the Trustee or any
Holder shall have received any payment that is prohibited by the foregoing
sentence, such payment shall be paid over and delivered forthwith to the holders
of the Senior Debt remaining unpaid, to the extent necessary to pay in full all
Senior Debt in accordance with Article 10 hereof.
Each Holder of a Note by its acceptance thereof (a) agrees to and shall be
bound by the provisions of this Section 11.04, (b) authorizes and directs the
Trustee in its behalf to take such actions as may be necessary and appropriate
to effectuate the subordination so provided and (c) appoints the Trustee its
attorney-in-fact for any and all such purposes.
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts with the
duties imposed by operation of Section 318(c) of the TIA, the imposed duties
shall control.
Section 12.02. Notices.
Any notice or communication by Services, CCPR or the Trustee to the other
is duly given if in writing and delivered in person, mailed by registered or
certified mail, postage prepaid, return receipt requested or delivered by
telecopier or overnight air courier guaranteeing next day delivery to the
other's address set forth below:
If to Services or CCPR:
CCPR Services, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Telecopier No.: (000) 000-0000
61
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Telecopier No.: (000) 000-0000
If to the Trustee:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Services, CCPR or the Trustee by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; the date receipt is acknowledged, if mailed by registered or
certified mail; when answered back, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first-class mail
to his or her address shown on the register kept by the Registrar. Failure to
mail a notice or communication to a Holder or any defect in it shall not affect
its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If Services or CCPR mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 12.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to Section 312(b) of the TIA with other
Holders with respect to their rights under this Indenture, the Guarantee or the
Notes. Services, CCPR, the Trustee, the Registrar and any other Person shall
have the protection of Section 312(c) of the TIA.
Section 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by Services or CCPR to the Trustee to take
any action under this Indenture, Services or CCPR shall furnish to the Trustee:
(a) an Officers' Certificate (which shall include the statements set forth
in Section 12.05 hereof) stating that, in the opinion of the signers,
all conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel (which shall include the statements set forth in
Section 12.05 hereof) stating that, in the opinion of such counsel,
all such conditions precedent provided for in this Indenture relating
to the proposed action have been complied with.
62
Section 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to Section 314(a)(4) of the TIA) 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, he has made such
examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in such Person's opinion, such condition or
covenant has been complied with.
Section 12.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 12.07. Legal Holidays.
If a payment date is a Legal Holiday at a place of payment, payment may be
made at that place on the next succeeding day that is not a Legal Holiday, and
no interest shall accrue for the intervening period.
Section 12.08. No Recourse Against Others.
No direct or indirect stockholder, employee, officer or director, as such,
past, present or future of Services or CCPR or any successor entity shall have
any personal liability for any Obligations of Services or CCPR or any successor
entity under the Notes, the Guarantee or this Indenture, by reason of his or its
status as such stockholder, employee, officer or director. Each Holder by
accepting a Note waives and releases all such liability, and such waiver and
release is part of the consideration for the issuance of the Notes.
Section 12.09. Counterparts.
This Indenture may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
Section 12.10. Variable Provisions.
Services initially appoints the Trustee as Paying Agent, Registrar and
authenticating agent.
The first compliance certificate to be delivered by Services and CCPR to
the Trustee pursuant to Section 4.03 hereof shall be for the fiscal year ending
on December 31, 1997.
Section 12.11. Governing Law.
The internal laws of the State of New York shall govern this Indenture and
the Notes, without regard to the conflict of laws provisions thereof.
63
Section 12.12. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of Services or any of its Subsidiaries, and no other indenture, loan
or debt agreement may be used to interpret this Indenture.
Section 12.13. Successors.
All agreements of Services in this Indenture and the Notes shall bind its
successor. All agreements of the Trustee in this Indenture shall bind its
successor. All agreements of the Guarantor in this Indenture and the Guarantee
shall bind its successor.
Section 12.14. Severability.
If any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 12.15. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table, and headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
[SIGNATURE PAGE FOLLOWS]
64
CCPR SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President-General
Counsel and Secretary
Attest:
_________________
Name:
Title:
CELLULAR COMMUNICATIONS
OF PUERTO RICO, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President-General
Counsel and Secretary
Attest:
_________________
Name:
Title:
THE CHASE MANHATTAN BANK
as Trustee
By: ________________________________
Name:
Title:
Attest:
_________________
Name:
Title:
CCPR SERVICES, INC.
By:____________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President-General
Counsel and Secretary
Attest:
_________________
Name:
Title:
CELLULAR COMMUNICATIONS
OF PUERTO RICO, INC.
By:_____________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President-General
Counsel and Secretary
Attest:
_________________
Name:
Title:
THE CHASE MANHATTAN BANK
as Trustee
By: /s/ X. X. Xxxxxx
_____________________________________
Name: X. X. Xxxxxx
Title: Vice President
Attest:
/s/ Xxxxxx X. Deck
-----------------
Name: XXXXXX X. DECK
Title: Senior Trust Officer
EXHIBIT A-1
(Face of Note)
10% Series A/B Senior Subordinated Note due 2007
No. $__________
CUSIP No.
CCPR SERVICES, INC.
promises to pay to
or registered assigns,
the principal sum of
Dollars (or such lesser or greater amount as disclosed on Schedule A
hereof) on February 1, 2007.
Record Dates: January 15 and July 15.
Interest Payment Dates: February 1 and August 1.
CCPR SERVICES, INC.
By:______________________________
Name:
Title:
Trustee's Certificate of Authentication
Dated: ___________, 1997
This is one of the [Global]
Notes referred to in the
within-mentioned Indenture:
THE CHASE MANHATTAN BANK
as Trustee
By:_____________________________
(Authorized Officer)
A1-1
(Back of Note)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. THE DEPOSITORY TRUST COMPANY SHALL ACT AS THE DEPOSITARY UNTIL A
SUCCESSOR SHALL BE APPOINTED BY SERVICES AND THE REGISTRAR. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN./1/
-
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION AND SUBJECT TO COMPLIANCE WITH
OTHER APPLICABLE LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE
WHICH IS THREE YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DATE ON WHICH SERVICES OR ANY AFFILIATE OF SERVICES WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE "RESALE RESTRICTION
TERMINATION DATE"), ONLY (A) TO SERVICES OR TO THE GUARANTOR, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT
TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH
(A)(1),(2),(3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND OTHERWISE IN COMPLIANCE WITH
OTHER APPLICABLE LAWS, SUBJECT TO SERVICES' AND THE TRUSTEE'S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND DELIVERY BY THE TRANSFEROR TO THE COMPANY AND
THE TRUSTEE OF A TRANSFER NOTICE, THE FORM OF WHICH MAY BE OBTAINED FROM THE
TRUSTEE AND, IN THE CASE OF THE FOREGOING CLAUSE (E), DELIVERY BY THE TRANSFEROR
OF A LETTER OF REPRESENTATION SIGNED BY SUCH TRANSFEREE, THE FORM OF WHICH MAY
BE OBTAINED
__________________
/1/. This paragraph should be included only if the Note is issued in global
form.
A1-2
FROM THE TRUSTEE. THE LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER
THE RESALE RESTRICTION TERMINATION DATE./2/
-
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. CCPR Services, Inc., a Delaware corporation ("Services"),
promises to pay interest on the principal amount of the Notes at the rate and in
the manner specified below. Interest on the Notes will accrue at 10% per annum
from the date this Note is issued until maturity. Services will pay Liquidated
Damages, if any, pursuant to Section 5 of the Registration Rights Agreement
referred to below. Interest and Liquidated Damages, if any, will be payable
semiannually in cash in arrears on February 1 and August 1 of each year, or if
any such day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on the Notes will accrue from the most
recent date on which interest has been paid or, if no interest has been paid,
from the date of original issuance; provided that the first Interest Payment
Date shall be August 1, 1997. Services shall pay interest (including post-
petition interest in any proceeding under Bankruptcy Law) on overdue principal
and premium, if any, from time to time on demand at the rate of 1% per annum in
excess of the interest rate then in effect and shall pay interest on overdue
installments of interest (including post-petition interest in any proceeding
under Bankruptcy Law) and Liquidated Damages, if any, (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30 day months.
2. METHOD OF PAYMENT. Services will pay interest on the Notes (except
defaulted interest) and Liquidated Damages, if any, to the Persons who are
registered Holders of Notes at the close of business on the January 15 or July
15 next preceding the Interest Payment Date, even if such Notes are cancelled
after such record date and on or before such Interest Payment Date, except as
provided in Section 2.12 of the Indenture with respect to defaulted interest.
The Notes shall be payable as to principal, premium, if any, interest and
Liquidated Damages, if any, at the office or agency of Services maintained for
such purpose within the City and State of New York, or, at the option of
Services, payment of interest may be made by check mailed to the Holders at
their addresses set forth in the register of Holders; provided that payment by
wire transfer of immediately available funds shall be required with respect to
principal of, and interest, premium and Liquidated Damages, if any, on, all
Global Notes and all other Notes the Holders of which shall have provided
written wire transfer instructions to Services or the Paying Agent. Such
payment shall be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. The Chase Manhattan Bank (the "Trustee")
will initially act as the Paying Agent and Registrar. Services may appoint
additional paying agents or co-registrars, and change the Paying Agent, any
additional paying agent, the Registrar or any co-registrar without prior notice
to any Holder. Services, CCPR or any of their Subsidiaries may act in any such
capacity.
4. INDENTURE. Services issued the Notes under an Indenture, dated as of
January 31, 1997 (the "Indenture"), among Services, CCPR and the Trustee. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S. Code (S)(S) 77aaa-77bbbb), as in effect on the date of the Indenture (the
"Trust Indenture Act"). The Notes are subject to, and qualified by, all such
terms, certain of which are summarized herein, and Holders are referred to the
Indenture and the Trust Indenture Act for a statement of such terms. The Notes
are senior subordinated obligations of Services limited to $200,000,000 in
aggregate principal amount, plus amounts, if any, issued to pay Liquidated
Damages on outstanding Notes as set forth in Paragraph 2 hereof.
5. OPTIONAL REDEMPTION. (a) Except as described in paragraph 5(b)
below, Services shall not have the right to redeem any Notes prior to February
1, 2002. On or after February 1, 2002, Services will have the right
___________________
/2/. This paragraph should be removed upon the exchange of Series A Notes for
Series B Notes in the Exchange Offer or upon the registration of the Series A
Notes pursuant to the terms of the Registration Rights Agreement.
A1-3
to redeem all or any part of the Notes in cash at the redemption prices
(expressed as a percentage of the aggregate principal amount thereof) set forth
below, in each case plus accrued and unpaid interest and Liquidated Damages, if
any, to the applicable redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on an Interest
Payment Date that is on or prior to the redemption date) if redeemed during the
12-month period beginning February 1, of the years indicated below:
Year Redemption Price
---- ----------------
2002.................................................. 105.000%
2003.................................................. 103.333%
2004.................................................. 101.677%
2005 and thereafter................................... 100.000%
(b) In addition, in the event of the first to occur prior to February 1,
2000 of (i) a public offering by Services or CCPR of Capital Stock (other than
Disqualified Stock) for gross proceeds of $50 million or more or (ii) a sale or
series of related sales by Services or CCPR of its Common Stock to one or more
Strategic Equity Investors in a transaction not involving a Change of Control
for an aggregate purchase price of $35 million or more (a "Strategic Equity
Investor Sale"), Services may, at its option, use all or any portion of the net
proceeds thereof to redeem up to a maximum of 33 1/9%of the original aggregate
principal amount at maturity of the Notes at a redemption price equal to 109% of
the principal amount of the Notes plus accrued and unpaid interest and
Liquidated Damages, if any, (determined at the redemption date); provided,
however, that such redemption may be effected only to the extend that not less
than 66 2/3% of the original aggregate principal amount at maturity of the Notes
shall remain outstanding immediately after such redemption. Any such redemption
may be effected only once and must be effected upon not less than 30 nor more
than 60 days notice given within 30 days following such public equity offering
or the most recent such sale to a Strategic Equity Investor, as the case may be,
provided, however, that if as a result of the same transaction, Services is
required to make an Asset Sale Offer, pursuant to Section 4.14 of the Indenture,
concurrently with its making of a Strategic Equity Investor Sale, Services shall
make the Asset Sale Offer no later than 30 days following such Strategic Equity
Investor Sale and, if such Asset Sale Offer is made, any redemption from the
Strategic Equity Investor Sale must be effected upon not less than 30 nor more
than 60 days' notice given within 30 days following the consummation of the
Asset Sale Offer.
(c) In the case of a partial redemption, the Trustee shall select the
Notes or portions thereof for redemption on a pro rata basis or in such other
manner as it deems appropriate and fair. The Notes may be redeemed in part in
multiples of $1,000 only.
6. MANDATORY REDEMPTION. Except as set forth under Sections 4.13 and
4.14 of the Indenture, Services shall not be required to make any mandatory
redemption or sinking fund payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDERS. (a) Upon the occurrence of a Change
of Control Triggering Event, each Holder shall have the right to require
Services to repurchase its Notes in cash pursuant to the offer described in
Section 4.13 of the Indenture at a purchase price equal to 101% of the principal
amount thereof, plus accrued and unpaid interest thereon and Liquidated Damages,
if any, to the date of purchase. Within 30 days following any Change of Control
Triggering Event, Services shall mail a notice to the Trustee and each Holder
setting forth the procedures governing the Change of Control Offer as required
by the Indenture.
(b) If Services, CCPR or any Restricted Subsidiary consummates one or more
Asset Sales and does not use all of the Net Cash Proceeds from such Asset Sales
as provided in Section 4.14 of the Indenture, Services will be required, under
certain circumstances, to utilize the Net Cash Proceeds from such Asset Sales to
offer (an "Asset Sale Offer") to purchase Notes at a purchase price in cash
equal to 100% of the principal amount of the Notes plus accrued interest and
Liquidated Damages, if any, to the date of payment. If the Net Cash Proceeds
are insufficient to purchase all Notes tendered pursuant to any Asset Sale
Offer, the Trustee shall select the Notes to be purchased in accordance with the
terms of Article 3 of the Indenture.
A1-4
(c) Holders may tender all or, subject to paragraph 8 below, any portion
of their Notes in a Change of Control Offer or Asset Sale Offer by completing
the form below entitled "OPTION OF HOLDER TO ELECT PURCHASE."
(d) Services shall comply with any tender offer rules under the Exchange
Act which may then be applicable, including Rule 14e-1, in connection with an
offer required to be made by Services to repurchase the Notes as a result of a
Change of Control Triggering Event or an Asset Sale. To the extent that the
provisions of any securities laws or regulations conflict with provisions of the
Indenture, Services shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under the
Indenture by virtue thereof.
8. NOTICE OF REDEMPTION OR PURCHASE. Notice of an optional redemption or
an Offer will be mailed to each Holder at its registered address at least 30
days but not more than 60 days before the date of redemption or purchase. Notes
may be redeemed or purchased in part, but only in whole multiples of $1,000
unless all Notes held by a Holder are to be redeemed or purchased. On or after
any date on which Notes are redeemed or purchased, interest and Liquidated
Damages, if any, ceases to accrue on the Notes or portions thereof called for
redemption or accepted for purchase on such date.
9. SUBORDINATION. The Notes and Guarantee are subordinated in right of
payment, to the extent and in the manner provided in Article 10 and Section
11.04 of the Indenture, to the prior payment in full in cash or Cash Equivalents
of all Senior Debt, which includes all Indebtedness of Services or CCPR
(including, with respect to the Credit Agreement, all Obligations thereunder),
including interest thereon, whether outstanding on the Issue Date or thereafter
incurred, other than (a) Indebtedness that is expressly subordinated or junior
in right of payment to any Indebtedness of Services or CCPR, (b) Indebtedness
represented by Disqualified Capital Stock, (c) any liability for federal, state,
local or other taxes owed or owing by Services or CCPR, (d) Indebtedness of
Services or CCPR to any Subsidiary of Services or CCPR or any Affiliate of
Services or CCPR (other than Purchase Money Indebtedness constituting at least
75% but not more than 100% of the cost of wireless cellular communication system
equipment and other related fixed assets, incurred in compliance with Section
4.07 of the Indenture), (e) trade payables and (f) Indebtedness incurred in
violation of the Indenture. Services and CCPR agree, and each Holder by
accepting a Note consents and agrees, to the subordination provided in the
Indenture and authorizes the Trustee to give it effect.
10. GUARANTEE. Services' payment obligations under the Notes are fully
and unconditionally guaranteed by CCPR. The Guarantee will be subordinated to
the prior payment in full of all Senior Debt of CCPR and the amounts for which
CCPR will be liable under the guarantee issued from time to time with respect to
Senior Debt.
11. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples thereof. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. Holders seeking to transfer or exchange their Notes may be
required, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not exchange or register the transfer of any Note
or portion of a Note selected for redemption except for the unredeemed portion
of any Note being redeemed in part. Also, it need not exchange or register the
transfer of any Notes for a period of 15 Business Days before a selection of
Notes to be redeemed or between a record date and the next succeeding Interest
Payment Date.
12. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated
as its owner for all purposes.
13. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to the following
paragraphs, the Indenture and the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in aggregate principal amount of
the Notes then outstanding (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for Notes), and
any existing Default or Event of Default (other than a payment Default) or
compliance with any provision of the Indenture or the Notes may be waived with
the consent of the
A1-5
Holders of a majority in aggregate principal amount of the then outstanding
Notes (including consents obtained in connection with a tender offer or exchange
offer for Notes).
Without the consent of any Holder, the Indenture or the Notes may be
amended to: (a) to cure any ambiguity, defect or inconsistency; (b) to provide
for uncertificated Notes in addition to or in place of certificated Notes; (c)
to provide for the assumption by a successor corporation of Services'
Obligations to the Holders in the event of a merger, consolidation or
disposition pursuant to Article 5 of the Indenture; (d) to comply with SEC's
requirements to effect or maintain the qualification of the Indenture under the
TIA; (e) to provide for additional guarantee with respect to the Notes or (f) to
make any change that does not materially adversely affect any Holder's legal
rights under the Indenture. Any amendment to the provisions of Article 10 or
Section 11.04 of the Indenture will require the consent of the Holders of at
least 75% in aggregate principal amount of the Notes then outstanding if such
amendment would adversely affect the rights of Holders of Notes. Certain
amendments require the consent of each Holder adversely affected.
14. DEFAULTS AND REMEDIES. Events of Default include: (i) the failure by
Services to pay any installment of interest or Liquidated Damages, if any, on
the Notes as and when the same becomes due and payable and the continuance of
any such failure for 30 days, whether or not prohibited by Article 10 of the
Indenture; (ii) the failure by Services to pay all or any part of the principal,
or premium, if any, on the Notes when and as the same becomes due and payable at
maturity, redemption, by acceleration or otherwise, including, without
limitation, payment of the Change of Control Payment or the Asset Sale Offer
Price, whether or not prohibited by Article 10 of the Indenture; (iii) the
failure by Services or CCPR to observe or perform any other covenant or
agreement contained in the Notes, the Guarantee or the Indenture and, subject to
certain exceptions, the continuance of such failure for a period of 30 days
after written notice is given to Services or CCPR, as the case may be, by the
Trustee or to Services or CCPR, as the case may be, and the Trustee by the
Holders of at least 25% in aggregate principal amount of the Notes outstanding;
(iv) certain events of bankruptcy or insolvency involving Services, CCPR or any
Restricted Subsidiary that is a Significant Subsidiary; (v) (1) a default in any
Indebtedness (other than the Credit Agreement) of Services, CCPR or any of the
Restricted Subsidiaries with an aggregate principal amount in excess of $5
million (a) resulting from the failure to pay principal or interest (in the case
of an interest default or a default in the payment of principal other than at
its stated maturity, after the expiration of the applicable grace period) when
due or (b) as a result of which the maturity of such Indebtedness has been
accelerated prior to its stated maturity, or (2) a default in the Credit
Agreement (with an aggregate principal amount in excess of $5 million
outstanding with respect thereto) (a) resulting from the failure to pay
principal at maturity or (b) as a result of which the maturity of such
Indebtedness has been accelerated prior to its stated maturity; (vi) final
unsatisfied judgments not covered by insurance aggregating in excess of $5
million, at any one time rendered against Services, CCPR or any of the
Restricted Subsidiaries and not stayed, fully bonded, discharged, paid or
vacated within 60 days; and (vii) except as permitted by the Indenture, the
Guarantee shall be held in any final judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and effect or CCPR, or
any Person acting on behalf of CCPR, shall deny or disaffirm its obligations
under its Guarantee.
If an Event of Default occurs and is continuing, the Trustee or the Holders
of at least 25% in principal amount of the Notes then outstanding may declare
all the Notes to be immediately due and payable by notice in writing to Services
and the Trustee specifying the respective Event of Default and that it is a
"notice of acceleration" (the "Acceleration Notice"), and the same (i) shall
become immediately due and payable or (ii) if there are any amounts outstanding
under the Credit Agreement, shall become immediately due and payable upon the
first to occur of an acceleration under the Credit Agreement or five Business
Days after receipt by Services and the Representative under the Credit Agreement
of such Acceleration Notice but only if such Event of Default is then
continuing. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all outstanding Notes
will become due and payable without further action or notice. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture. Subject
to certain limitations, Holders of a majority in aggregate principal amount of
the then outstanding Notes may direct the Trustee in its exercise of any trust
or power. The Holders of a majority in aggregate principal amount of the Notes
then outstanding by notice to the Trustee may on behalf of all Holders of all of
the Notes waive any existing Default or Event of Default and its consequences
under the Indenture, except a continuing Default or Event of Default in the
payment of the principal of, premium, if any, and interest on, and Liquidated
Damages, if any, with respect to such Notes, which
A1-6
may only be waived with the consent of each Holder of Notes affected. Services
must furnish an annual compliance certificate to the Trustee.
15. TRUSTEE DEALINGS WITH SERVICES. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for Services, CCPR or any of their Affiliates, and may otherwise deal with
Services, CCPR or any of their Affiliates, as if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS. No direct or indirect stockholder,
employee, officer or director, as such, past, present or future of Services or
CCPR or any successor entity shall have any personal liability for any
Obligations of Services or CCPR or any successor entity under the Notes, the
Guarantee or the Indenture, by reason of his or its status as such stockholder,
employee, officer or director. Each Holder by accepting a Note waives and
releases all such liability, and such waiver and release is part of the
consideration for the issuance of the Notes.
17. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED NOTES. In
addition to the rights provided to Holders of Notes under the Indenture, Holders
of Transfer Restricted Notes shall have all the rights set forth in the
Registration Rights Agreement, dated as of January 31, 1997, among Services,
CCPR and the Initial Purchasers (the "Registration Rights Agreement").
18. SUCCESSOR CORPORATION SUBSTITUTED. Upon any consolidation or merger,
or any sale, assignment, transfer, lease, conveyance or other disposition of all
or substantially all of the assets of Services in accordance with Section 5.01
of the Indenture, the successor corporation formed by such consolidation or with
which or into Services is merged or to which such sale, assignment, transfer,
lease, conveyance or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, Services under the
Indenture with the same effect as if such successor has been named as Services
under the Indenture; provided, however, that neither Services nor any successor
corporation shall be released from its Obligation to pay the principal of,
premium, if any, and accrued and unpaid interest on, and Liquidated Damages, if
any, with respect to the Notes.
19. GOVERNING LAW. The internal laws of the state of New York shall
govern the Indenture and the Notes without regard to the conflict of laws
provisions thereof.
20. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
21. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (=Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
22. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, Services has caused
CUSIP numbers to be printed on the Notes and have directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers printed on the Notes.
Services will furnish to any Holder upon written request and without charge
a copy of the Indenture. Request may be made to:
CCPR Services, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
A1-7
Assignment Form
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Note to
________________________________________________________________________________
(Insert assignee's Social Security or tax I.D. No.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
agent to transfer this Security on the books of Services. The agent may
substitute another to act for such agent._______________________________________
Date:_______________
Your Signature:__________________________________
(Sign exactly as your name appears on the face of
this Security)
By:__________________________
Notice: To be executed by an executive officer
Signature Guarantee:/***/_________________________
_____________________
/***/ Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
A1-8
Option of Holder to Elect Purchase
If you want to elect to have this Security purchased by Services pursuant
to Section 4.13 or 4.14 of the Indenture, check the box below:
[_] Section 4.13 [_] Section 4.14
If you want to elect to have only part of this Security purchased by
Services pursuant to Section 4.13 or Section 4.14 of the Indenture, state the
amount you elect to have purchased: $___________
Date: _____________ Your Signature:_________________________________
(Sign exactly as your name appears on the
Security)
By:_____________________
Notice: To be executed by an executive officer
Tax Identification No.:____________
Signature Guarantee:/*/___________________________
___________________
/*/ Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A1-9
SCHEDULE A
SCHEDULE OF EXCHANGES OR TRANSFERS FOR DEFINITIVE NOTES OR ANOTHER NOTE/2/
The following exchanges or transfers of a part of this Global Note for
Definitive Notes or another Global Note have been made:
====================================================================================================================
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Note authorized officer of
Principal Amount of Principal Amount of following such decrease Trustee or Note
Date of Exchange this Global Note this Global Note (or increase) Custodian
or Transfer
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
====================================================================================================================
______________________
2. To be included only if the Note is issued in global form.
A1-10
EXHIBIT A-2
(Face of Regulation S Temporary Global Note)
10% Series A/B Senior Subordinated Note due 2007
No. $__________
CUSIP No.
CCPR SERVICES, INC.
promises to pay to
or registered assigns,
the principal sum of
Dollars (or such lesser or greater amount as disclosed on Schedule A
hereof) on February 1, 2007.
Record Dates: January 15 and July 15.
Interest Payment Dates: February 1 and August 1.
CCPR SERVICES, INC.
By:______________________________
Name:
Title:
Trustee's Certificate of Authentication
Dated: ___________, 1997
This is one of the [Global]
Notes referred to in the
within-mentioned Indenture:
THE CHASE MANHATTAN BANK
as Trustee
By:_____________________________
(Authorized Officers)
(Back of Regulation S Temporary Global Note)
A2-1
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE
AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR
THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE
ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY
OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX,
XXX XXXX) ("XXX"), TO SERVICES OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN./1/
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY
STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION AND SUBJECT TO COMPLIANCE WITH OTHER APPLICABLE LAWS. THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS THREE YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH SERVICES OR ANY AFFILIATE OF SERVICES WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF THIS SECURITY) (THE "RESALE RESTRICTION TERMINATION
DATE"), ONLY (A) TO SERVICES OR TO THE GUARANTOR, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1),(2),(3) OR (7) OF RULE
501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR,"
FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND OTHERWISE IN COMPLIANCE WITH OTHER APPLICABLE
LAWS, SUBJECT TO SERVICES' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE
1. This paragraph should be included only if the Note is issued in global
form.
A2-2
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND DELIVERY BY THE TRANSFEROR TO THE COMPANY
AND THE TRUSTEE OF A TRANSFER NOTICE, THE FORM OF WHICH MAY BE OBTAINED
FROM THE TRUSTEE AND, IN THE CASE OF THE FOREGOING CLAUSE (E), DELIVERY BY
THE TRANSFEROR OF A LETTER OF REPRESENTATION SIGNED BY SUCH TRANSFEREE, THE
FORM OF WHICH MAY BE OBTAINED FROM THE TRUSTEE. THE LEGEND WILL BE REMOVED
UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE./2/
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. CCPR Services, Inc., a Delaware corporation ("Services"),
promises to pay interest on the principal amount of the Notes at the rate and in
the manner specified below. Interest on the Notes will accrue at 10% per annum
from the date this Note is issued until maturity. Services will pay Liquidated
Damages, if any, pursuant to Section 5 of the Registration Rights Agreement
referred to below. Interest and Liquidated Damages, if any, will be payable
semiannually in cash in arrears on February 1 and August 1 of each year, or if
any such day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on the Notes will accrue from the most
recent date on which interest has been paid or, if no interest has been paid,
from the date of original issuance; provided that the first Interest Payment
Date shall be August 1, 1997. Services shall pay interest (including post-
petition interest in any proceeding under Bankruptcy Law) on overdue principal
and premium, if any, from time to time on demand at the rate of 1% per annum in
excess of the interest rate then in effect and shall pay interest on overdue
installments of interest (including post-petition interest in any proceeding
under Bankruptcy Law) and Liquidated Damages, if any, (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30 day months.
Until this Regulation S Temporary Global Note is exchanged for one or more
Regulation S Permanent Global Notes, the Holder hereof shall not be entitled to
receive payments of interest hereon; until so exchanged in full, this Regulation
S Temporary Global Note shall in all other respects be entitled to the same
benefits as other Notes under the Indenture.
2. METHOD OF PAYMENT. Services will pay interest on the Notes (except
defaulted interest) and Liquidated Damages, if any, to the Persons who are
registered Holders of Notes at the close of business on the January 15 or July
15 next preceding the Interest Payment Date, even if such Notes are cancelled
after such record date and on or before such Interest Payment Date, except as
provided in Section 2.12 of the Indenture with respect to defaulted interest.
The Notes shall be payable as to principal, premium, if any, interest and
Liquidated Damages, if any, at the office or agency of Services maintained for
such purpose within the City and State of New York, or, at the option of
Services, payment of interest may be made by check mailed to the Holders at
their addresses set forth in the register of Holders; provided that payment by
wire transfer of immediately available funds shall be required with respect to
principal of, and interest, premium and Liquidated Damages, if any, on, all
Global Notes and all other Notes the Holders of which shall have provided
written wire transfer instructions to Services or the Paying Agent. Such payment
shall be in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. The Chase Manhattan Bank (the "Trustee")
will initially act as the Paying Agent and Registrar. Services may appoint
additional paying agents or co-registrars, and change the Paying Agent, any
additional paying agent, the Registrar or any co-registrar without prior notice
to any Holder. Services, CCPR or any of their Subsidiaries may act in any such
capacity.
____________________
2. This paragraph should be removed upon the exchange of Series A Notes for
Series B Notes in the Exchange Offer or upon the registration of the Series A
Notes pursuant to the terms of the Registration Rights Agreement.
A2-3
4. INDENTURE. Services issued the Notes under an Indenture, dated as of
January 31, 1997 (the "Indenture"), among Services, CCPR and the Trustee. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S. Code (S)(S) 77aaa-77bbbb) as in effect on the date of the Indenture (the
"Trust Indenture Act"). The Notes are subject to, and qualified by, all such
terms, certain of which are summarized herein, and Holders are referred to the
Indenture and the Trust Indenture Act for a statement of such terms. The Notes
are senior subordinated obligations of Services limited to $200,000,000 in
aggregate principal amount, plus amounts, if any, issued to pay Liquidated
Damages on outstanding Notes as set forth in Paragraph 2 hereof.
5. OPTIONAL REDEMPTION. (a) Except as described in paragraph 5(b)
below, Services shall not have the right to redeem any Notes prior to February
1, 2002. On or after February 1, 2002, Services will have the right to redeem
all or any part of the Notes in cash at the redemption prices (expressed as a
percentage of the aggregate principal amount thereof) set forth below, in each
case plus accrued and unpaid interest and Liquidated Damages, if any, to the
applicable redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on an Interest Payment Date that is
on or prior to the redemption date) if redeemed during the 12-month period
beginning February 1, of the years indicated below:
Year Redemption Price
---- ----------------
2002 105.000%
2003 103.333%
2004 101.677%
2005 and thereafter 100.000%
(b) In addition, in the event of the first to occur prior to February 1,
2000 of (i) a public offering of by Services or CCPR of Capital Stock (other
than Disqualified Stock) for gross proceeds of $50 million or more or (ii) a
sale or series of related sales by Services or CCPR of its Common Stock to one
or more Strategic Equity Investors in a transaction not involving a Change of
Control for an aggregate purchase price of $35 million or more (a "Strategic
Equity Investor Sale"), Services may, at its option, use all or any portion of
the net proceeds thereof to redeem up to a maximum of 33-1/3% of the original
aggregate principal amount at maturity of the Notes at a redemption price equal
to 109% of the principal amount of the Notes plus accrued and unpaid interest
and Liquidated Damages, if any, (determined at the redemption date); provided,
however, that such redemption may be effected only to the extend that not less
than 66-2/3% of the original aggregate principal amount at maturity of the Notes
shall remain outstanding immediately after such redemption. Any such redemption
may be effected only once and must be effected upon not less than 30 nor more
than 60 days notice given within 30 days following such public equity offering
or the most recent such sale to a Strategic Equity Investor, as the case may be,
provided, however, that if as a result of the same transaction, Services is
required to make an Asset Sale Offer, pursuant to Section 4.14 of the Indenture,
concurrently with its making of a Strategic Equity Investor Sale, Services shall
make the Asset Sale Offer no later than 30 days following such Strategic Equity
Investor Sale and, if such Asset Sale Offer is made, any redemption from the
Strategic Equity Investor Sale must be effected upon not less than 30 nor more
than 60 days' notice given within 30 days following the consummation of the
Asset Sale Offer.
(c) In the case of a partial redemption, the Trustee shall select the
Notes or portions thereof for redemption on a pro rata basis or in such other
manner as it deems appropriate and fair. The Notes may be redeemed in part in
multiples of $1,000 only.
6. MANDATORY REDEMPTION. Except as set forth under Sections 4.13 and
4.14 of the Indenture, Services shall not be required to make any mandatory
redemption or sinking fund payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDERS. (a) Upon the occurrence of a Change
of Control Triggering Event, each Holder shall have the right to require
Services to repurchase its Notes in cash pursuant to the offer described in
Section 4.13 of the Indenture at a purchase price equal to 101% of the principal
amount thereof, plus accrued and unpaid interest thereon and Liquidated Damages,
if any, to the date of purchase. Within 30 days following any Change of Control
Triggering Event, Services shall mail a notice to the Trustee and each Holder
setting forth the procedures governing the Change of Control Offer as required
by the Indenture.
A2-4
(b) If Services, CCPR or any Restricted Subsidiary consummates one or more
Asset Sales and does not use all of the Net Cash Proceeds from such Asset Sales
as provided in Section 4.14 of the Indenture, Services will be required, under
certain circumstances, to utilize the Net Cash Proceeds from such Asset Sales to
offer (an "Asset Sale Offer") to purchase Notes at a purchase price equal to
100% of the principal amount of the Notes plus accrued interest and Liquidated
Damages, if any, to the date of payment. If the Net Cash Proceeds are
insufficient to purchase all Notes tendered pursuant to any Asset Sale Offer,
the Trustee shall select the Notes to be purchased in accordance with the terms
of Article 3 of the Indenture.
(c) Holders may tender all or, subject to paragraph 8 below, any portion
of their Notes in a Change of Control Offer or Asset Sale Offer by completing
the form below entitled OPTION OF HOLDER TO ELECT PURCHASE."
(d) Services shall comply with any tender offer rules under the Exchange
Act which may then be applicable, including Rule 14e-1, in connection with an
offer required to be made by Services to repurchase the Notes as a result of a
Change of Control Triggering Event or an Asset Sale. To the extent that the
provisions of any securities laws or regulations conflict with provisions of the
Indenture, Services shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under the
Indenture by virtue thereof.
8. NOTICE OF REDEMPTION OR PURCHASE. Notice of an optional redemption or
an Offer will be mailed to each Holder at its registered address at least 30
days but not more than 60 days before the date of redemption or purchase. Notes
may be redeemed or purchased in part, but only in whole multiples of $1,000
unless all Notes held by a Holder are to be redeemed or purchased. On or after
any date on which Notes are redeemed or purchased, interest and Liquidated
Damages, if any, ceases to accrue on the Notes or portions thereof called for
redemption or accepted for purchase on such date.
9. SUBORDINATION. The Notes and Guarantee are subordinated in right of
payment, to the extent and in the manner provided in Article 10 and Section
11.04 of the Indenture, to the prior payment in full in cash or Cash Equivalents
of all Senior Debt, which includes all Indebtedness of Services or CCPR
(including, with respect to the Credit Agreement, all Obligations thereunder),
including interest thereon, whether outstanding on the Issue Date or thereafter
incurred, other than (a) Indebtedness that is expressly subordinated or junior
in right of payment to any Indebtedness of Services or CCPR, (b) Indebtedness
represented by Disqualified Capital Stock, (c) any liability for federal, state,
local or other taxes owed or owing by Services or CCPR, (d) Indebtedness of
Services or CCPR to any Subsidiary of Services or CCPR or any Affiliate of
Services or CCPR (other than Purchase Money Indebtedness constituting at least
75% but not more than 100% of the cost of wireless cellular communication system
equipment and other related fixed assets, incurred in compliance with Section
4.07 of the Indenture), (e) trade payables and (f) Indebtedness incurred in
violation of the Indenture. Services and CCPR agree, and each Holder by
accepting a Note consents and agrees, to the subordination provided in the
Indenture and authorizes the Trustee to give it effect.
10. GUARANTEE. Services' payment obligations under the Notes are fully
and unconditionally guaranteed by CCPR. The Guarantee will be subordinated to
the prior payment in full of all Senior Debt of CCPR and the amounts for which
CCPR will be liable under the guarantee issued from time to time with respect to
Senior Debt.
11. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples thereof. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. Holders seeking to transfer or exchange their Notes may be
required, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not exchange or register the transfer of any Note
or portion of a Note selected for redemption except for the unredeemed portion
of any Note being redeemed in part. Also, it need not exchange or register the
transfer of any Notes for a period of 15 Business Days before a selection of
Notes to be redeemed or between a record date and the next succeeding Interest
Payment Date.
12. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated
as its owner for all purposes.
A2-5
13. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to the following
paragraphs, the Indenture and the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in aggregate principal amount of
the Notes then outstanding (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for Notes), and
any existing Default or Event of Default (other than a payment Default) or
compliance with any provision of the Indenture or the Notes may be waived with
the consent of the Holders of a majority in aggregate principal amount of the
then outstanding Notes (including consents obtained in connection with a tender
offer or exchange offer for Notes).
Without the consent of any Holder, the Indenture or the Notes may be
amended to: (a) to cure any ambiguity, defect or inconsistency; (b) to provide
for uncertificated Notes in addition to or in place of certificated Notes; (c)
to provide for the assumption by a successor corporation of Services'
Obligations to the Holders in the event of a merger, consolidation or
disposition pursuant to Article 5 of the Indenture; (d) to comply with SEC's
requirements to effect or maintain the qualification of the Indenture under the
TIA; (e) to provide for additional guarantee with respect to the Notes or (f) to
make any change that does not materially adversely affect any Holder's legal
rights under the Indenture. Any amendment to the provisions of Article 10 or
Section 11.04 of the Indenture will require the consent of the Holders of at
least 75% in aggregate principal amount of the Notes then outstanding if such
amendment would adversely affect the rights of Holders of Notes. Certain
amendments require the consent of each Holder adversely affected.
14. DEFAULTS AND REMEDIES. Events of Default include: (i) the failure by
Services to pay any installment of interest or Liquidated Damages, if any, on
the Notes as and when the same becomes due and payable and the continuance of
any such failure for 30 days, whether or not prohibited by Article 10 of the
Indenture; (ii) the failure by Services to pay all or any part of the principal,
or premium, if any, on the Notes when and as the same becomes due and payable at
maturity, redemption, by acceleration on or otherwise, including, without
limitation, payment of the Change of Control Payment or the Asset Sale Offer
Price, whether or not prohibited by Article 10 of the Indenture; (iii) the
failure by Services or CCPR to observe or perform any other covenant or
agreement contained in the Notes, the Guarantee or the Indenture and, subject to
certain exceptions, the continuance of such failure for a period of 30 days
after written notice is given to Services or CCPR, as the case may be, by the
Trustee or to Services or CCPR, as the case may be, and the Trustee by the
Holders of at least 25% in aggregate principal amount of the Notes outstanding;
(iv) certain events of bankruptcy or insolvency involving Services, CCPR or any
Restricted Subsidiary that is a Significant Subsidiary; (v) (1) a default in any
Indebtedness (other than the Credit Agreement) of Services, CCPR or any of the
Restricted Subsidiaries with an aggregate principal amount in excess of $5
million (a) resulting from the failure to pay principal or interest (in the case
of an interest default or a default in the payment of principal other than at
its stated maturity, after the expiration of the applicable grace period) when
due or (b) as a result of which the maturity of such Indebtedness has been
accelerated prior to its stated maturity, or (2) a default in the Credit
Agreement (with an aggregate principal amount in excess of $5 million
outstanding with respect thereto) (a) resulting from the failure to pay
principal at maturity or (b) as a result of which the maturity of such
Indebtedness has been accelerated prior to its stated maturity; (vi) final
unsatisfied judgments not covered by insurance aggregating in excess of $5
million, at any one time rendered against Services, CCPR or any of the
Restricted Subsidiaries and not stayed, fully bonded, discharged, paid or
vacated within 60 days; and (vii) except as permitted by the Indenture, the
Guarantee shall be held in any final judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and effect or CCPR, or
any Person acting on behalf of CCPR, shall deny or disaffirm its obligations
under its Guarantee.
If an Event of Default occurs and is continuing, the Trustee or the Holders
of at least 25% in principal amount of the Notes then outstanding may declare
all the Notes to be immediately due and payable by notice in writing to Services
and the Trustee specifying the respective Event of Default and that it is a
"notice of acceleration" (the "Acceleration Notice"), and the same (i) shall
become immediately due and payable or (ii) if there are any amounts outstanding
under the Credit Agreement, shall become immediately due and payable upon the
first to occur of an acceleration under the Credit Agreement or five Business
Days after receipt by Services and the Representative under the Credit Agreement
of such Acceleration Notice but only if such Event of Default is then
continuing. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all outstanding Notes
will become due and payable without further action or notice. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture. Subject
to certain limitations, Holders of a majority in aggregate principal amount of
the then outstanding Notes may direct the Trustee in its exercise of any
A2-6
trust or power. The Holders of a majority in aggregate principal amount of the
Notes then outstanding by notice to the Trustee may on behalf of all Holders of
all of the Notes waive any existing Default or Event of Default and its
consequences under the Indenture, except a continuing Default or Event of
Default in the payment of the principal of, premium, if any, and interest on,
and Liquidated Damages, if any, with respect to such Notes, which may only be
waived with the consent of each Holder of Notes affected. Services must furnish
an annual compliance certificate to the Trustee.
15. TRUSTEE DEALINGS WITH SERVICES. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for Services, CCPR or any of their Affiliates, and may otherwise deal with
Services, CCPR or any of their Affiliates, as if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS. No direct or indirect stockholder,
employee, officer or director, as such, past, present or future of Services or
CCPR or any successor entity shall have any personal liability for any
Obligations of Services or CCPR or any successor entity under the Notes, the
Guarantee or the Indenture, by reason of his or its status as such stockholder,
employee, officer or director. Each Holder by accepting a Note waives and
releases all such liability, and such waiver and release is part of the
consideration for the issuance of the Notes.
17. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED NOTES. In
addition to the rights provided to Holders of Notes under the Indenture, Holders
of Transfer Restricted Notes shall have all the rights set forth in the
Registration Rights Agreement, dated as of January 31, 1997, among Services,
CCPR and the Initial Purchasers (the "Registration Rights Agreement").
18. SUCCESSOR CORPORATION SUBSTITUTED. Upon any consolidation or merger,
or any sale, assignment, transfer, lease, conveyance or other disposition of all
or substantially all of the assets of Services in accordance with Section 5.01
of the Indenture, the successor corporation formed by such consolidation or with
which or into Services is merged or to which such sale, assignment, transfer,
lease, conveyance or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, Services under the
Indenture with the same effect as if such successor has been named as Services
under the Indenture; provided, however, that neither Services nor any successor
corporation shall be released from its Obligation to pay the principal of,
premium, if any, and accrued and unpaid interest on, and Liquidated Damages, if
any, with respect to the Notes.
19. GOVERNING LAW. The internal laws of the state of New York shall
govern the Indenture and the Notes without regard to the conflict of laws
provisions thereof.
20. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
21. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (=Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
22. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, Services has caused
CUSIP numbers to be printed on the Notes and have directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers printed on the Notes.
Services will furnish to any Holder upon written request and without charge
a copy of the Indenture. Request may be made to:
A2-7
CCPR Services, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
A2-8
Assignment Form
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Note to
________________________________________________________________________________
(Insert assignee's Social Security or tax I.D. No.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
agent to transfer this Security on the books of Services. The agent may
substitute another to act for such agent._______________________________________
Date:________________
Your Signature:________________________________________
(Sign exactly as your name appears on the face of this
Security)
By:_____________________
Notice: To be executed by an executive officer
Signature Guarantee:/*/________________________________
____________________
/*/ Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A2-9
Option of Holder to Elect Purchase
If you want to elect to have this Security purchased by Services pursuant
to Section 4.13 or 4.14 of the Indenture, check the box below:
[_] Section 4.13 [_] Section 4.14
If you want to elect to have only part of this Security purchased by
Services pursuant to Section 4.13 or Section 4.14 of the Indenture, state the
amount you elect to have purchased: $___________
Date: _____________ Your Signature:_________________________________
(Sign exactly as your name appears on the
Security)
By:____________________
Notice: To be executed by an executive officer
Tax Identification No.:____________________
Signature Guarantee:/*/
__________________
/*/ Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A2-10
SCHEDULE A
SCHEDULE OF EXCHANGES OR TRANSFERS FOR DEFINITIVE NOTES OR ANOTHER NOTE/2/
The following exchanges or transfers of a part of this Global Note for
Definitive Notes or another Global Note have been made:
======================================================================================================================
Principal Amount of this Signature of
Amount of decrease in Amount of increase in Global Note authorized officer of
Date of Exchange Principal Amount of Principal Amount of following such decrease Trustee or Note
or Transfer this Global Note this Global Note (or increase) Custodian
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
======================================================================================================================
________________________
2. To be included only if the Note is issued in global form.
A2-11
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
CCPR Services, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Department
Re: 10% Series A Senior Subordinated Notes due 2007 of CCPR Services, Inc.
----------------------------------------------------------------------
Reference is hereby made to the Indenture, dated as of January 31, 1997
(the "Indenture"), between CCPR Services, Inc., as issuer ("Services"), Cellular
--------- --------
Communications of Puerto Rico, Inc., as guarantor ("CCPR") and The Chase
----
Manhattan Bank, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
_____________________________________, (the "Transferor") owns and proposes
----------
to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto,
in the principal amount of $___________________ in such Note[s] or interests
(the "Transfer"), to ____________________________ (the "Transferee"), as
-------- ----------
further specified in Annex A hereto. In connection with the Transfer, the
Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF BOOK-ENTRY INTERESTS IN THE
---------------------------------------------------------------------
RULE 144A GLOBAL NOTE OR DEFINITIVE NOTES PURSUANT TO RULE 144A. The Transfer
---------------------------------------------------------------
is being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
--------------
accordingly, the Transferor hereby further certifies that the book-entry
interests or Definitive Notes are being transferred to a Person that the
Transferor reasonably believes is purchasing the book-entry interests or
Definitive Notes for its own account, or for one or more accounts with respect
to which such Person exercises sole investment discretion, and such Person and
each such account is a "qualified institutional buyer" within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A and such
Transfer is in compliance with any applicable blue sky securities laws of any
State of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred book-entry interest
or Definitive Note will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Rule 144A Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.
2. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF BOOK-ENTRY INTERESTS IN THE
---------------------------------------------------------------------
REGULATION S GLOBAL NOTE OR DEFINITIVE NOTES PURSUANT TO REGULATION S. The
---------------------------------------------------------------------
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act, (iii) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the expiration of the Restricted
Period, the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the
transferred Book-Entry Interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the
B-1
Private Placement Legend printed on the Regulation S Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.
3. [_] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF BOOK-ENTRY
-----------------------------------------------------------------
INTERESTS IN THE IAI GLOBAL NOTE OR DEFINITIVE NOTES PURSUANT TO ANY PROVISION
------------------------------------------------------------------------------
OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is
----------------------------------------------------------
being effected in compliance with the transfer restrictions applicable to book-
entry interests in Restricted Global Notes and Definitive Notes bearing the
Private Placement Legend and pursuant to and in accordance with the Securities
Act and any applicable blue sky securities laws of any State of the United
States, and accordingly the Transferor hereby further certifies that (check
one):
(a) [_] such Transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act;
or
(b) [_] such Transfer is being effected to Services or any Subsidiary;
or
(c) [_] such Transfer is being effected pursuant to an effective registration
statement under the Securities Act;
or
(d) [_] such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 under the Securities Act or Rule
904, and the Transferor hereby further certifies that the Transfer complies with
the transfer restrictions applicable to book-entry interests in a Restricted
Global Note or Definitive Notes bearing the Private Placement Legend and the
requirements of the exemption claimed, which certification is supported by (x)
if such Transfer is in respect of a principal amount of Notes at the time of
Transfer of $100,000 or more, a certificate executed by the Transferee in the
form of Exhibit D to the Indenture, or (y) if such Transfer is in respect of a
principal amount of Notes at the time of transfer of less than $100,000, (1) a
certificate executed by the Transferee in the form of Exhibit D to the Indenture
and (2) an Opinion of Counsel provided by the Transferor or the Transferee (a
copy of which the Transferor has attached to this certification), to the effect
that (i) such Transfer is in compliance with the Securities Act and (ii) such
Transfer complies with any applicable blue sky securities laws of any state of
the United States. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred book-entry interest or Definitive
Note will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the IAI Global Note and/or the Definitive Notes and
in the Indenture and the Securities Act.
4. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF BOOK-ENTRY INTERESTS IN THE
---------------------------------------------------------------------
UNRESTRICTED GLOBAL NOTE OR IN DEFINITIVE NOTES THAT DO NOT BEAR THE PRIVATE
----------------------------------------------------------------------------
PLACEMENT LEGEND.
----------------
(a) [_] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being
effected pursuant to and in accordance with Rule 144 under the Securities Act
and in compliance with the transfer restrictions contained in the Indenture and
any applicable blue sky securities laws of any state of the United States and
(ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred book-entry interests or Definitive
Notes will no longer be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Global Notes, on
Definitive Notes bearing the Private Placement Legend and in the Indenture.
(b) [_] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred book-entry interests or
Definitive Notes will no longer be subject to the
B-2
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Definitive Notes bearing the Private Placement
Legend and in the Indenture.
(c) [_] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer is
being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144, Rule 903 or
Rule 904 and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred book-entry interests or
Definitive Notes will not be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Global Notes or
Definitive Notes bearing the Private Placement Legend and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of Services and CCPR.
_____________________________________
[Insert Name of Transferor]
By: _________________________________
Name:
Title:
Dated: ___________, ______
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [_] Book-entry interests in the:
(i) [_] 144A Global Note (CUSIP _________________________), or
(ii) [_] Regulation S Global Note (CUSIP ______________________), or
(iii)[_] IAI Global Note (CUSIP _________________________________); or
(b) [_] Restricted Definitive Notes.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [_] Book-entry interests in the:
(i) [_] 144A Global Note (CUSIP ______________________________), or
(ii) [_] Regulation S Global Note (CUSIP __________________________), or
(iii)[_] IAI Global Note (CUSIP _____________________________ ); or
(iv) [_] Unrestricted Global Note (CUSIP _______________________________);
or
(b) [_] Restricted Definitive Notes; or
(c) [_] Unrestricted Definitive Notes that do not bear the Private
Placement Legend, in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
CCPR Services, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Department
Re: 10% Series A Senior Subordinated Notes due 2007 of CCPR Services,
-----------------------------------------------------------------
Inc.
----
(CUSIP ________________________________________)
Reference is hereby made to the Indenture, dated as of January 31,
1997 (the "Indenture"), between CCPR Services, Inc., as issuer (the "Services"),
--------- --------
Cellular Communications of Puerto Rico, Inc., as guarantor ("CCPR") and The
----
Chase Manhattan Bank, as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
____________________________________, (the "Holder") owns and proposes
------
to exchange the Note[s] or interest in such Note[s] specified herein, in the
principal amount of $_____________________ in such Note[s] or interests (the
"Exchange"). In connection with the Exchange, the Holder hereby certifies that:
---------
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BOOK-ENTRY INTERESTS IN
RESTRICTED GLOBAL NOTES FOR DEFINITIVE NOTES THAT DO NOT BEAR THE PRIVATE
PLACEMENT LEGEND OR BOOK-ENTRY INTERESTS IN UNRESTRICTED GLOBAL NOTES.
(a) [_] CHECK IF EXCHANGE IS FROM BOOK-ENTRY IN RESTRICTED GLOBAL NOTES
---------------------------------------------------------------
INTEREST TO BOOK-ENTRY INTEREST IN UNRESTRICTED GLOBAL NOTES. In connection
------------------------------------------------------------
with the Exchange of the Holder's book-entry interest in Restricted Global Notes
for book-entry interests in Unrestricted Global Notes in an equal principal
amount, the Holder hereby certifies (i) the book-entry interests in Unrestricted
Global Notes are being acquired for the Holder's own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Global Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the book-entry interests in
Unrestricted Global Notes are being acquired in compliance with any applicable
blue sky securities laws of any State of the United States.
(b) [_] CHECK IF EXCHANGE IS FROM BOOK-ENTRY INTEREST IN RESTRICTED
-----------------------------------------------------------
GLOBAL NOTES TO DEFINITIVE NOTES THAT DO NOT BEAR THE PRIVATE PLACEMENT LEGEND.
------------------------------------------------------------------------------
In connection with the Exchange of the Holder's book-entry interests in
Restricted Global Notes for Definitive Notes that do not bear the Private
Placement Legend, in an equal principal amount the Holder hereby certifies (i)
the Definitive Notes are being acquired for the Holder's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Definitive Notes are
being acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
(c) [_] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTES TO BOOK-
-------------------------------------------------------------
ENTRY INTERESTS IN UNRESTRICTED GLOBAL NOTES. In connection with the Holder's
--------------------------------------------
Exchange of Restricted Definitive Notes for book-entry interests in Unrestricted
Global Notes in an equal principal amount, the Holder hereby certifies (i) the
book-entry interests in Unrestricted Global Notes are being acquired for the
Holder's own account without transfer, (ii)
C-1
such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the book-entry interests in
Unrestricted Global Notes are being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(d) [_] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTES TO
--------------------------------------------------------
DEFINITIVE NOTES THAT DO NOT BEAR THE PRIVATE PLACEMENT LEGEND. In connection
--------------------------------------------------------------
with the Holder's Exchange of a Restricted Definitive Note for Definitive Notes
that do not bear the Private Placement Legend in an equal principal amount, the
Holder hereby certifies (i) the Definitive Notes that do not bear the Private
Placement Legend are being acquired for the Holder's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act , (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the Notes are
being acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BOOK-ENTRY INTERESTS IN
RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BOOK-ENTRY INTERESTS
IN RESTRICTED GLOBAL NOTES
(a) [_] CHECK IF EXCHANGE IS FROM BOOK-ENTRY INTERESTS IN RESTRICTED
------------------------------------------------------------
GLOBAL NOTES TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of
------------------------------------------
the Holder's restricted book-entry interest for Restricted Definitive Notes with
an equal principal amount, the Holder hereby certifies (i) the Restricted
Definitive Notes are being acquired for the Holder's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States. Upon consummation
of the proposed Exchange in accordance with the terms of the Indenture, the
Restricted Definitive Notes issued will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Definitive Notes and in the Indenture and the Securities Act.
(b) [_] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTES TO BOOK-
-------------------------------------------------------------
ENTRY INTERESTS IN RESTRICTED GLOBAL NOTES. In connection with the Exchange of
------------------------------------------
the Holder's Restricted Definitive Note for book-entry interests in Restricted
Global Notes in the [CHECK ONE] [_] Rule 144A Global Note, [_] Regulation S
Global Note, [_] IAI Global Note in an equal principal amount, the Holder hereby
certifies (i) the Definitive Notes are being acquired for the Holder's own
account without transfer and (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted Definitive Note and
pursuant to and in accordance with the Securities Act, and in compliance with
any applicable blue sky securities laws of any State of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the book-entry interests issued will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of Services and CCPR.
______________________________________
[Insert Name of Holder]
By:___________________________________
Name:
Title:
Dated: ___________, _____
C-2
EXHIBIT D
CCPR SERVICES, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
In connection with our proposed purchase of $200,000,000 aggregate
principal amount of the 10% Series A Senior Subordinated Notes due 2007 (the
"Notes") of CCPR Services, Inc. (the "Issuer"), we confirm that:
1. We understand that the Notes have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and may not be
sold except as permitted in the following sentence. We agree on our own
behalf and on behalf of any investor account for which we are purchasing
Notes to offer, sell or otherwise transfer such Notes prior to the date
which is three years after the later of the date of original issuance of
the Notes and the last date on which the Issuer or any affiliate of the
Issuer was the owner of such Note (or any predecessor thereto) (the "Resale
Restriction Termination Date") only (a) to the Issuer, (b) pursuant to a
registration statement which has been declared effective under the
Securities Act, (c) so long as the Notes are eligible for resale pursuant
to Rule 144A under the Securities Act, to a person we reasonably believe is
a qualified institutional buyer under Rule 144A (a "QIB") that purchases
for its own account or for the account of a QIB and to whom notice is given
that the transfer is being made in reliance on Rule 144A, (d) pursuant to
offers and sales to non-U.S. persons that occur outside the United States
within the meaning of Regulation S under the Securities Act, (e) to an
institutional "accredited investor" within the meaning of subparagraph
(a)(1), (2), (3) or (7) of Rule 501 under the Securities Act that is
acquiring Notes for its own account or for the account of an institutional
"accredited investor" for investment purposes and not with a view to, or
for offer or sale in connection with, any distribution thereof in violation
of the Securities Act or (f) pursuant to any other available exemption from
the registration requirements of the Securities Act and otherwise in
compliance with applicable laws, subject in each of the foregoing cases to
any requirement of law that the disposition of our property or the property
of such investor account or accounts be at all times within our or their
control and to compliance with any applicable state securities laws. The
foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the Notes
is proposed to be made pursuant to clause (e) above prior to the Resale
Restriction Termination Date, the transferor shall deliver a letter from
the transferee substantially in the form of this letter to the Trustee,
which shall provide, among other things, that the transferee is an
institutional "accredited investor" within the meaning of subparagraph
(a)(1), (2), (3) or (7) of Rule 501 under the Securities Act and that is
acquiring such Notes for investment purposes and not for distribution in
violation of the Securities Act. We acknowledge on our own behalf and on
behalf of any investor account for which we are purchasing Notes that the
Issuer and the Trustee reserve the right prior to any offer, sale or other
transfer prior to the Resale Restriction Termination Date of the Notes
pursuant to clause (d), (e) or (f) above to require the delivery of an
opinion of counsel, certifications and/or other information satisfactory to
each of them.
2. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under Securities Act) purchasing
for our own account or for the account of such an institutional "accredited
investor," and we are acquiring the Notes for investment purposes and not
with a view to, or for offer or sale in connection with, any distribution
in violation of the Securities Act or the securities laws of any State of
the United States or any other applicable jurisdiction; provided that the
disposition of our property and the property of any accounts for which we
are acting as fiduciary shall remain at all times within our control, and
we have such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which were are acting are each able to
bear the economic risk of our or its investment for an indefinite period
and we have received a copy of the Offering Memorandum and acknowledge that
we have had access to such financial and other information, and have been
afforded the opportunity to ask such questions of representatives of the
Issuer and receive answers thereto, as we deem necessary in connection with
our decision to purchase Notes.
D-1
3. We are acquiring the Notes purchased by us for our own account or for
one or more accounts as to each of which we exercise sole investment discretion.
4. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
Very truly yours,
___________________________
Name of Purchaser
By: _______________________
Date: _____________________
Upon transfer the Notes would be registered in the name of the new
beneficial owner as follows:
Name: _____________________
Address: __________________
Taxpayer ID Number: _______
D-2
EXHIBIT E
[FORM OF NOTATION ON NOTE RELATING TO GUARANTEE]
GUARANTEE
Cellular Communications of Puerto Rico, Inc., a Delaware corporation
(the "Guarantor," which term includes any successor [or additional Guarantor]
under the Indenture (the "Indenture") referred to in the Note upon which this
notation is endorsed), (i) has fully and unconditionally guaranteed (a) the due
and punctual payment of the principal of, premium, if any, and interest and
Liquidated Damages, if any, on the Notes, whether at maturity, by acceleration,
redemption or otherwise, (b) the due and punctual payment of interest on the
overdue principal, premium, if any, (to the extent permitted by law) interest on
any interest, if any, and Liquidated Damages, if any, on the Notes, (c) the due
and punctual performance of all other payment obligations of Services to the
Holders or the Trustee, all in accordance with the terms set forth in the
Indenture or the Notes, and (d) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, the same will be promptly
paid in full when due or performed in accordance with the terms of the extension
or renewal, subject to any applicable grace period, whether at stated maturity,
by acceleration, redemption or otherwise and (ii) has agreed to pay any and all
costs and expenses (including reasonable attorneys' fees) incurred by the
Trustee or any Holder in enforcing any rights under this Guarantee. Capitalized
terms used herein have the meanings assigned to them in the Indenture unless
otherwise indicated.
This Guarantee shall be binding upon the Guarantor and its successors
and assigns and shall inure to the benefit of the successors and assigns of the
Trustee and the Holders and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges herein conferred
upon that party shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Note upon which this Guarantee is noted
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
The obligations of the Guarantor to the Holders of Notes and to the
Trustee pursuant to the Guarantee and the Indenture are expressly subordinated
to the extent set forth in Article 10 and Section 11.04 of the Indenture and
reference is hereby made to such Indenture for the precise terms of such
subordination.
This Guarantee shall be governed by the internal laws of the State of
New York, without regard to conflict of laws provisions thereof.
Cellular Communications of Puerto Rico, Inc.
By: ________________________________
Name:
Title:
E-1
EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
Supplemental Indenture (this "Supplemental Indenture"), dated as of
_____________, ____, between _________________________ (the "Additional
Guarantor"), CCPR Services, Inc., a Delaware corporation ("Services"), Cellular
Communications of Puerto Rico, Inc., a Delaware corporation ("CCPR") and The
Chase Manhattan Bank, as trustee under the indenture referred to below (the
"Trustee").
W I T N E S E T H
WHEREAS, Services and CCPR have heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of January 31, 1997, providing
for the issuance of an aggregate principal amount of $200,000,000 of 10% Series
A and Series B Senior Subordinated Notes due 2007 (the "Notes");
WHEREAS, Section 4.15 of the Indenture provides that under certain
circumstances Services and CCPR are required to cause the Additional Guarantor
to execute and deliver to the Trustee a supplemental indenture pursuant to which
the Additional Guarantor shall unconditionally guarantee all of Services'
Obligations under the Indenture and the Notes pursuant to a guarantee (the
"Additional Guarantee") on the terms and conditions of the Guarantee by CCPR in
Article 11 of the Indenture and on the other terms and conditions set forth
herein; and
WHEREAS, pursuant to Section 9.01(e) of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto mutually covenant and agree for the equal and ratable benefit of the
holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture including, without
limitation, the subordination provisions of Article 10 thereof.
2. Agreement to Guarantee. The Additional Guarantor hereby agrees,
jointly and severally with all other guarantors, to guarantee Services'
Obligations under the Indenture and the Notes on the terms and subject to the
conditions set forth herein and in Article 11 of the Indenture and to be bound
by all other applicable provisions of the Indenture.
3. Release of Additional Guarantor. In the event that the holders of
Services' Other Indebtedness which is guaranteed by the Additional Guarantor
release the Additional Guarantor from its guarantee in respect of such Other
Indebtedness, except a discharge or release by or as a result of any payment
under the guarantee of such Other Indebtedness by the Additional Guarantor, the
Additional Guarantor shall be automatically and unconditionally released and
discharged from its obligations under this Additional Guarantee; provided
however, if, after such release, any guarantee under such Other Indebtedness is
subsequently reincurred or reinstated, then such Additional Guarantor
reincurring or reinstating such guarantee under such Other Indebtedness shall
execute and reinstate its Additional Guarantee hereunder.
Upon receipt of an Officers' Certificate, the Trustee shall execute
any documents reasonably requested by Services, CCPR or the Additional Guarantor
in order to evidence the release of such Additional Guarantor from its
obligations under the Additional Guarantee.
4. No Recourse Against Others. No direct or indirect stockholder,
employee, officer or director, as such, past, present or future of Services,
CCPR or the Additional Guarantor or any successor entity shall have any personal
liability for any Obligations of Services, CCPR or the Additional Guarantor or
any successor entity under the Additional Guarantee, by reason of his or its
status as such stockholder, employee, officer or director.
F-1
Each Holder by accepting a Note waives and releases all such liability, and such
waiver and release is part of the consideration for the issuance of the Notes.
5. Governing Law. The internal laws of the State of New York shall
govern this Supplemental Indenture, without regard to the conflict of laws
provisions thereof.
6. Counterparts. This Supplemental Indenture may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
7. Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
[Additional Guarantor]
By:_____________________________
Name:
Title:
Attest:
____________________________
Name:
Title:
CCPR Services, Inc.
By:_____________________________
Name:
Title:
Attest:
____________________________
Name:
Title:
F-2
Cellular Communications of Puerto Rico, Inc.
By:_____________________________
Name:
Title:
Attest:
____________________________
Name:
Title:
The Chase Manhattan Bank
as Trustee
By:_____________________________
Name:
Title:
Attest:
____________________________
Name:
Title:
X-0
XXXXX-XXXXXXXXX XXXXX*
Xxxxx Xxxxxxxxx
Xxx Section Indenture Section
310 (a)(1)...................................................... 7.10
(a)(2)...................................................... 7.10
(a)(3)...................................................... N.A.
(a)(4)...................................................... N.A.
(a)(5)...................................................... 7.10
(b)......................................................... 7.10
(c)......................................................... N.A.
311 (a)......................................................... 7.11
(b)......................................................... 7.11
(c)......................................................... N.A.
312 (a)......................................................... 2.05
(b)......................................................... 12.03
(c)......................................................... 12.03
313 (a)......................................................... 7.06
(b)(1)...................................................... 10.03
(b)(2)...................................................... 7.07
(c)......................................................... 7.06;12.02
(d)......................................................... 7.06
314 (a)......................................................... 4.04;12.02
(b)......................................................... 10.02
(c)(1)...................................................... 12.04
(c)(2)...................................................... 12.04
(c)(3)...................................................... N.A.
(d)......................................................... 10.03, 10.04
(e)......................................................... 12.07
(f)......................................................... N.A.
315 (a)......................................................... 7.01
(b)......................................................... 7.05,12.02
(c)......................................................... 7.01
(d)......................................................... 7.01
(e)......................................................... 6.11
316 (a)(last sentence).......................................... 2.09
(a)(1)(A)................................................... 6.05
(a)(1)(B)................................................... 6.04
(a)(2)...................................................... N.A.
(b)......................................................... 6.07
(c)......................................................... 2.13
317 (a)(1)...................................................... 6.08
(a)(2)...................................................... 6.09
(b)......................................................... 2.04
318 (a)......................................................... 12.01
(b)......................................................... N.A.
(c)......................................................... 12.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
v
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions............................................................... 1
Section 1.02. Other Definitions.........................................................13
Section 1.03. Incorporation by Reference of Trust Indenture Act.........................14
Section 1.04. Rules of Construction.....................................................14
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating...........................................................14
Section 2.02. Execution and Authentication..............................................16
Section 2.03. Registrar and Paying Agent................................................16
Section 2.04. Paying Agent to Hold Money in Trust.......................................17
Section 2.05. Holder Lists..............................................................17
Section 2.06. Transfer and Exchange.....................................................17
Section 2.07. Replacement Notes.........................................................27
Section 2.08. Outstanding Notes.........................................................28
Section 2.09. Treasury Notes............................................................28
Section 2.10. Temporary Notes...........................................................28
Section 2.11. Cancellation..............................................................28
Section 2.12. Defaulted Interest........................................................29
Section 2.13. Record Date...............................................................29
Section 2.14. CUSIP Number..............................................................29
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee........................................................29
Section 3.02. Selection of Notes to be Redeemed or Purchased............................30
Section 3.03. Notice of Redemption......................................................30
Section 3.04. Effect of Notice of Redemption............................................31
Section 3.05. Deposit of Redemption Price...............................................31
Section 3.06. Notes Redeemed in Part....................................................31
Section 3.07. Optional Redemption Provisions............................................31
Section 3.08. Mandatory Purchase Provisions.............................................32
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes..........................................................33
Section 4.02. Reports...................................................................34
Section 4.03. Compliance Certificate....................................................35
Section 4.04. Stay, Extension and Usury Laws............................................35
Section 4.05. Restricted Payments.......................................................35
Section 4.06. Line of Business..........................................................36
Section 4.07. Incurrence of Additional Indebtedness.....................................36
Section 4.08. Transactions With Related Persons.........................................37
Section 4.09. Liens.................................................................... 38
Section 4.10. Compliance With Laws, Taxes...............................................38
Section 4.11. Restrictions On Subsidiary Dividends......................................38
Section 4.12. Maintenance of Office or Agencies.........................................39
Section 4.13. Offer to Repurchase Upon Change of Control Triggering Event...............39
Section 4.14. Asset Sales and Sales of Restricted Subsidiary Stock......................40
Section 4.15. Guarantees of Services' Indebtedness by Restricted Subsidiaries...........42
Section 4.16. No Senior Subordinated Indebtedness.......................................42
Section 4.17. Status As Investment Company..............................................42
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets...................................42
Section 5.02. Successor Corporation Substituted.........................................43
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.........................................................43
Section 6.02. Acceleration..............................................................44
Section 6.03. Other Remedies............................................................45
Section 6.04. Waiver of Past Defaults...................................................45
Section 6.05. Control by Majority.......................................................46
Section 6.06. Limitation on Suits.......................................................46
Section 6.07. Rights of Holders to Receive Payment......................................46
Section 6.08. Collection Suit by Trustee................................................46
Section 6.09. Trustee May File Proofs of Claim..........................................46
Section 6.10. Priorities................................................................47
Section 6.11. Undertaking for Costs.....................................................47
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.........................................................47
Section 7.02. Rights of Trustee.........................................................48
Section 7.03. Individual Rights of Trustee..............................................48
Section 7.04. Trustee's Disclaimer......................................................49
Section 7.05. Notice to Holders of Defaults and Events of Default.......................49
Section 7.06. Reports by Trustee to Holders.............................................49
Section 7.07. Compensation and Indemnity................................................49
Section 7.08. Replacement of Trustee....................................................50
Section 7.09. Successor Trustee by Merger, Etc..........................................50
Section 7.10. Eligibility; Disqualification.............................................50
Section 7.11. Preferential Collection of Claims Against Services........................51
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ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance..................51
Section 8.02. Legal Defeasance and Discharge............................................51
Section 8.03. Covenant Defeasance.......................................................51
Section 8.04. Conditions to Legal or Covenant Defeasance................................52
Section 8.05. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions............................................53
Section 8.06. Repayment to Services.....................................................53
Section 8.07. Reinstatement.............................................................54
ARTICLE 9
AMENDMENTS
Section 9.01. Amendments and Supplements Permitted Without Consent of Holders...........54
Section 9.02. Amendments and Supplements Requiring Consent of Holders...................54
Section 9.03. Compliance with TIA.......................................................55
Section 9.04. Revocation and Effect of Consents.........................................55
Section 9.05. Notation on or Exchange of Notes..........................................56
Section 9.06. Trustee Protected.........................................................56
ARTICLE 10
SUBORDINATION
Section 10.01. Agreement to Subordinate..................................................56
Section 10.02. Liquidation; Dissolution; Bankruptcy......................................56
Section 10.03. Default on Designated Senior Debt.........................................57
Section 10.04. Acceleration of Notes.....................................................57
Section 10.05. When Distribution Must Be Paid Over.......................................58
Section 10.06. Notice by Services........................................................58
Section 10.07. Subrogation...............................................................58
Section 10.08. Relative Rights...........................................................58
Section 10.09. Subordination May Not Be Impaired by Services.............................59
Section 10.10. Distribution or Notice to Representative..................................59
Section 10.11. Rights of Trustee and Paying Agent........................................59
Section 10.12. Authorization to Effect Subordination.....................................59
Section 10.13. Amendments................................................................60
ARTICLE 11
GUARANTEE OF NOTES
Section 11.01. Guarantee.................................................................60
Section 11.02. Execution and Delivery of the Guarantee...................................60
Section 11.03. "Trustee" to Include Paying Agent.........................................61
Section 11.04. Subordination of Guarantee................................................61
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls..............................................61
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Section 12.02. Notices...................................................................61
Section 12.03. Communication by Holders with Other Holders...............................62
Section 12.04. Certificate and Opinion as to Conditions Precedent........................62
Section 12.05. Statements Required in Certificate or Opinion.............................62
Section 12.06. Rules by Trustee and Agents...............................................63
Section 12.07. Legal Holidays............................................................63
Section 12.08. No Recourse Against Others................................................63
Section 12.09. Counterparts..............................................................63
Section 12.10. Variable Provisions.......................................................63
Section 12.11. Governing Law.............................................................63
Section 12.12. No Adverse Interpretation of Other Agreements.............................63
Section 12.13. Successors................................................................64
Section 12.14. Severability..............................................................64
Section 12.15. Table of Contents, Headings, Etc..........................................64
Exhibit A-1 Form of Note.............................................................A-1
Exhibit A-2 Form of Regulation S Temporary Global Note...............................A-2
Exhibit B Form of Certificate of Transfer............................................B
Exhibit C Form of Certificate of Exchange............................................C
Exhibit D Form of Certificate to be Delivered by Institutional
Accredited Investors.......................................................D
Exhibit E Form of Notation on Note Relating to Guarantee.............................E
Exhibit F Form of Supplemental Indenture.............................................F
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