Exhibit 4.4
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF JANUARY 31, 1997
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by and among
CCPR SERVICES, INC.
CELLULAR COMMUNICATIONS OF PUERTO RICO, INC.
and
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
SALOMON BROTHERS INC
XXXXXXXXXXX XXXXXXX SECURITIES, INC.
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This Registration Rights Agreement (the "Agreement") is made and entered
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into as of January 31, 1997, by and among CCPR Services, Inc., a Delaware
corporation ("Services"), Cellular Communications of Puerto Rico, Inc., a
Delaware corporation ("CCPR") and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
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Corporation, Salomon Brothers Inc, and Xxxxxxxxxxx Xxxxxxx Securities, Inc.
(collectively, the "Initial Purchasers"), who have agreed to purchase
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$200,000,000 principal amount of Services' 10% Series A Senior Subordinated
Notes due 2007 (the "Series A Notes") pursuant to the Purchase Agreement (as
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defined below).
This Agreement is made pursuant to the Purchase Agreement, dated January
28, 1997 (the "Purchase Agreement"), by and among Services, CCPR and the Initial
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Purchasers. In order to induce the Initial Purchasers to purchase the Series A
Notes, Services and CCPR have agreed to provide the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchasers set forth in Section 9 of
the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Act: The Securities Act of 1933, as amended.
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Broker-Dealer: Any broker or dealer registered under the Exchange Act.
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Broker-Dealer Transfer Restricted Notes: Series B Notes (as defined below)
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that are acquired by a Broker-Dealer in the Exchange Offer in exchange for
Series A Notes that such Broker-Dealer acquired for its own account as a result
of market-making activities or other trading activities (other than Series A
Notes acquired directly from Services, CCPR or any of their affiliates).
Business Day: Any day except a Saturday, Sunday or other day in the City
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of New York, or in the city of the corporate trust office of the Trustee, on
which banks are authorized to close.
Closing Date: The date hereof.
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Commission: The Securities and Exchange Commission.
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Consummate: An Exchange Offer shall be deemed "Consummated" for purposes
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of this Agreement upon the occurrence of (a) the filing and effectiveness under
the Act of the Exchange Offer Registration Statement relating to the Series B
Notes to be issued in the Exchange Offer, (b) the maintenance of such Exchange
Offer Registration Statement continuously effective and the keeping of the
Exchange Offer open for a period not less than the minimum period required
pursuant to Section 3(b) hereof and (c) the delivery by Services to the
Registrar under the Indenture of Series B Notes in the same aggregate principal
amount as the aggregate principal amount of Series A Notes tendered by Holders
thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Series A Notes, each Interest
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Payment Date.
Effectiveness Target Date: As defined in Section 5.
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Exchange Act: The Securities Exchange Act of 1934, as amended.
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Exchange Offer: The registration by Services under the Act of the Series B
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Notes pursuant to the Exchange Offer Registration Statement pursuant to which
Services offers the Holders of all outstanding Transfer Restricted Notes the
opportunity to exchange all such outstanding Transfer Restricted Notes held by
such Holder for Series B Notes in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Notes tendered in such
exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement relating
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to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers propose
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to sell the Series A Notes to (i) certain "qualified institutional buyers," as
such term is defined in Rule 144A under the Act, (ii) certain institutional
"accredited investors," as such term is defined in Rule 501(a)(1), (2), (3), and
(7) of Regulation D under the Act and (iii) to non-U.S. persons outside the
United States in reliance upon Regulation S under the Act.
Holders: As defined in Section 2(b) hereof.
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Indenture: The Indenture, dated as of the Closing Date, among Services,
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CCPR and The Chase Manhattan Bank of New York, as trustee (the "Trustee"),
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pursuant to which the Notes are issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture and the Notes.
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Liquidated Damages: As defined in Section 5 hereof.
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NASD: National Association of Securities Dealers, Inc.
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Notes: The Series A Notes and the Series B Notes.
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Person: An individual, partnership, corporation, trust, unincorporated
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organization, or a government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as
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amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
Record Holder: With respect to any Damages Payment Date, each Person who
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is a Holder of Notes on the record date with respect to the Interest Payment
Date on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
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Registration Statement: Any registration statement of Services relating to
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(a) an offering of Series B Notes pursuant to an Exchange Offer or (b) the
registration for resale of Transfer Restricted Notes
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pursuant to the Shelf Registration Statement, in each case, (i) which is filed
pursuant to the provisions of this Agreement and (ii) including the Prospectus
included therein, all amendments and supplements thereto (including post-
effective amendments) and all exhibits and material incorporated by reference
therein.
Restricted Broker-Dealer: Any Broker-Dealer which holds Broker-Dealer
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Transfer Restricted Notes.
Series B Notes: Services' 10% Series B Senior Subordinated Notes due 2007
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to be issued pursuant to the Indenture (i) in the Exchange Offer or (ii) upon
the request of any Holder of Series A Notes covered by a Shelf Registration
Statement, in exchange for such Series A Notes.
Shelf Registration Statement: As defined in Section 4 hereof.
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TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as
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in effect on the date of the Indenture.
Transfer Restricted Notes: Each Series A Note, until the earliest to occur
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of (a) the date on which such Note is exchanged in the Exchange Offer and
entitled to be resold to the public by the Holder thereof without complying with
the prospectus delivery requirements of the Act, (b) the date on which such Note
has been effectively registered under the Act and disposed of in accordance with
a Shelf Registration Statement, (c) the date on which such Note is disposed of
by a Broker-Dealer pursuant to the "Plan of Distribution" contemplated by the
Exchange Offer Registration Statement (including delivery of the Prospectus
contained therein) or (d) the date on which such Note is distributed to the
public pursuant to Rule 144 under the Act or is saleable pursuant to Rule 144(k)
under the Act.
Underwritten Registration or Underwritten Offering: A registration in
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which securities of Services are sold to an underwriter for reoffering to the
public.
2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) The securities entitled to the benefits of this Agreement are the
Transfer Restricted Notes.
(b) A Person is deemed to be a holder of Transfer Restricted Notes (each, a
"Holder") whenever such Person owns Transfer Restricted Notes.
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3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable law or
Commission policy (after the procedures set forth in Section 6(a) below have
been complied with), Services and CCPR shall (i) cause to be filed with the
Commission as soon as practicable after the Closing Date, but in no event later
than 120 days after the Closing Date, the Exchange Offer Registration Statement,
(ii) use their reasonable best efforts to cause such Exchange Offer Registration
Statement to become effective at the earliest possible time, but in no event
later than 160 days after the Closing Date, (iii) in connection with the
foregoing, (A) file all pre-effective amendments to such Exchange Offer
Registration Statement as may be necessary in order to cause such Exchange Offer
Registration Statement to become effective, (B)
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file, if applicable, a post-effective amendment to such Exchange Offer
Registration Statement pursuant to Rule 430A under the Act and (C) cause all
necessary filings, if any, in connection with the registration and qualification
of the Series B Notes to be made under the Blue Sky laws of such jurisdictions
as are necessary to permit Consummation of the Exchange Offer and (iv) upon the
effectiveness of such Exchange Offer Registration Statement, commence and
Consummate the Exchange Offer. The Exchange Offer shall be on the appropriate
form permitting registration of the Series B Notes to be offered in exchange for
Transfer Restricted Notes and to permit sales of Broker-Dealer Transfer
Restricted Notes by Restricted Broker-Dealers as contemplated by Section 3(c)
below.
(b) Services and CCPR shall use their reasonable best efforts to cause the
Exchange Offer Registration Statement to be effective continuously, and shall
keep the Exchange Offer open, for a period of not less than the minimum period
required under applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however, that in no event shall such period be less
than 20 Business Days. Services and CCPR shall cause the Exchange Offer to
comply with all applicable federal and state securities laws. No securities
other than the Notes shall be included in the Exchange Offer Registration
Statement. Services and CCPR shall use their reasonable best efforts to cause
the Exchange Offer to be Consummated on the earliest practicable date after the
Exchange Offer Registration Statement has become effective, but in no event
later than 30 Business Days thereafter.
(c) Services and CCPR shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Restricted Broker-Dealer who holds Transfer Restricted Notes
and that were acquired for the account of such Broker-Dealer as a result of
market-making activities or other trading activities, may exchange such Transfer
Restricted Notes (other than Transfer Restricted Notes acquired directly from
Services) pursuant to the Exchange Offer; provided, however, such Broker-Dealer
may be deemed to be an "underwriter" within the meaning of the Act and must,
therefore, deliver a prospectus meeting the requirements of the Act in
connection with its initial sale of each Series B Note received by such Broker-
Dealer in the Exchange Offer, which prospectus delivery requirement may be
satisfied by the delivery by such Broker-Dealer of the Prospectus contained in
the Exchange Offer Registration Statement. Such "Plan of Distribution" section
shall also contain all other information with respect to such sales of Broker-
Dealer Transfer Restricted Notes by Restricted Broker-Dealers that the
Commission may require in order to permit such sales pursuant thereto, but such
"Plan of Distribution" shall not name any such Broker-Dealer or disclose the
amount of Notes held by any such Broker-Dealer except to the extent required by
the Commission as a result of a change in policy after the date of this
Agreement.
(d) Services and CCPR shall use their best efforts to keep the Exchange
Offer Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for sales of Broker-Dealer Transfer Restricted Notes
by Restricted Broker-Dealers, and to ensure that such Registration Statement
conforms with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of one year from the date on which the Exchange Offer is Consummated.
(e) Services and CCPR shall promptly provide sufficient copies of the
latest version of such Prospectus included in the Exchange Offer Registration
Statement to such Restricted Broker-Dealers upon request, and in no event later
than two days after such request, at any time during such one-year period in
order to facilitate such sales.
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4. SHELF REGISTRATION
(a) Shelf Registration. If (i) Services and CCPR are not required to file
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an Exchange Offer Registration Statement or to Consummate the Exchange Offer
with respect to the Series B Notes because the Exchange Offer is not permitted
by applicable law or Commission policy (after the procedures set forth in
Section 6(a) below have been complied with) or (ii) if any Holder of Transfer
Restricted Notes shall notify Services or CCPR within 20 Business Days following
the Consummation of the Exchange Offer that (A) such Holder is prohibited by
applicable law or Commission policy from participating in the Exchange Offer or
(B) such Holder may not resell the Series B Notes acquired by it in the Exchange
Offer to the public without delivering a prospectus and the Prospectus contained
in the Exchange Offer Registration Statement is not appropriate or available for
such resales by such Holder or (C) such Holder is a Broker-Dealer and holds
Series A Notes acquired directly from Services, CCPR or one of their affiliates,
then Services and CCPR shall
(x) use their best efforts to cause to be filed a shelf
registration statement pursuant to Rule 415 under the Act, which may be an
amendment to the Exchange Offer Registration Statement (in either event,
the "Shelf Registration Statement") on or prior to the earliest to occur of
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(1) the 30th day after the date on which Services determines that it is not
required to file the Exchange Offer Registration Statement, (2) the 30th
day after the date on which Services or CCPR receives notice from a Holder
of Transfer Restricted Securities as contemplated by clause (ii) above, and
(3) the 160th day after the Closing Date (such earliest date being the
"Shelf Filing Deadline"), which Shelf Registration Statement shall provide
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for resales of all Transfer Restricted Securities the Holders of which
shall have provided the information required pursuant to Section 4(b)
hereof; and
(y) use their best efforts to cause such Shelf Registration
Statement to be declared effective by the Commission on or before the 30th
day after the Shelf Filing Deadline.
Services and CCPR shall use their best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) and (c) hereof to the extent
necessary to ensure that it is available for resales of Notes by the Holders of
Transfer Restricted Securities entitled to the benefit of this Section 4(a), and
to ensure that it conforms with the requirements of this Agreement, the Act and
the policies, rules and regulations of the Commission as announced from time to
time, for a period of at least three years following the Closing Date or such
shorter period ending when all Transfer Restricted Securities covered by such
Shelf Registration Statement have been sold in the manner set forth and as
contemplated by such Shelf Registration Statement.
(b) Provision by Holders of Certain Information in Connection with the
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Shelf Registration Statement. No Holder of Transfer Restricted Notes may
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include any of its Transfer Restricted Notes in any Shelf Registration Statement
pursuant to this Agreement unless and until such Holder furnishes to Services or
CCPR in writing, within 20 Business Days after receipt of a request therefor,
such information as Services or CCPR may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Notes shall be
entitled to Liquidated Damages pursuant to Section 5 hereof unless and until
such Holder shall have used its best efforts to provide all such reasonably
requested information. Each
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Holder as to which any Shelf Registration Statement is being effected agrees to
furnish promptly to Services or CCPR all information required to be disclosed in
order to make the information previously furnished to Services or CCPR by such
Holder not materially misleading.
5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not filed
with the Commission on or prior to the date specified for such filing in this
Agreement, (ii) any such Registration Statement has not been declared effective
by the Commission on or prior to the date specified for such effectiveness in
this Agreement (the "Effectiveness Target Date"), (iii) the Exchange Offer has
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not been Consummated within 30 Business Days after the Effectiveness Target Date
with respect to the Exchange Offer Registration Statement or (iv) any
Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be usable for
its intended purpose without being succeeded immediately by a post-effective
amendment to such Registration Statement that cures such failure and that is
itself declared immediately effective (each such event referred to in clauses
(i) through (iv), a "Registration Default"), then Services and CCPR hereby
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jointly and severally agree to pay to each Holder of Transfer Restricted Notes
so affected, during the first 90-day period immediately following the occurrence
of such Registration Default, liquidated damages (the "Liquidated Damages") in
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an amount equal to $.05 per week per $1,000 principal amount of Transfer
Restricted Notes held by such Holder for so long as the Registration Default
continues. The amount of Liquidated Damages payable to each Holder shall
increase by an additional $.05 per week per $1,000 principal amount of Transfer
Restricted Notes held by such Holder for each subsequent 90-day period up to a
maximum of $.25 per week per $1,000 principal amount of Transfer Restricted
Notes held by such Holder. All accrued Liquidated Damages shall be paid to
Record Holders by Services or CCPR by wire transfer of immediately available
funds or by federal funds check on each Damages Payment Date, as provided in the
Indenture. Following the cure of all Registration Defaults relating to any
particular Transfer Restricted Securities, the accrual of Liquidated Damages
with respect to such Transfer Restricted Securities will cease.
All accrued Liquidated Damages shall be paid by Services or CCPR to Holders
of record in the same manner in which payments of interest are made pursuant to
the Indenture. All obligations of Services and CCPR set forth in the preceding
paragraph that are outstanding with respect to any Transfer Restricted Note at
the time such security ceases to be a Transfer Restricted Note shall survive
until such time as all such obligations with respect to such security shall have
been satisfied in full.
6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the Exchange
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Offer, Services and CCPR shall comply with all of the provisions of Section 6(c)
below, shall use their reasonable best efforts to effect such exchange and to
permit the sale of Broker-Dealer Transfer Restricted Notes being sold in
accordance with the intended method or methods of distribution thereof and shall
comply with all of the following provisions:
(i) If, following the date hereof, there has been published a
change in Commission policy with respect to exchange offers such as the
Exchange Offer, such that in the reasonable opinion of counsel to Services
and CCPR there is a substantial question as to whether the
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Exchange Offer is permitted by applicable federal law, Services and CCPR
hereby agree to seek oral interpretive advice or other favorable decision,
including a no-action letter, from the Commission allowing Services and
CCPR to Consummate an Exchange Offer for such Series A Notes. Services and
CCPR hereby agree to pursue the issuance of such a decision to the
Commission staff level. In connection with the foregoing, Services and CCPR
hereby agree to take all such other actions as are requested by the
Commission or otherwise required in connection with the issuance of such
decision, including without limitation (A) participating in telephonic
conferences with the Commission staff, (B) delivering to the Commission
staff an analysis prepared by counsel to Services and CCPR setting forth
the legal bases, if any, upon which such counsel has concluded that such an
Exchange Offer should be permitted and (C) diligently pursuing a resolution
(which need not be favorable) by the Commission staff of such submission;
provided, however, that Services and CCPR shall not be required to take
commercially unreasonable action in connection with the foregoing.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer Restricted
Notes shall furnish, upon the request of Services and CCPR, prior to the
Consummation of the Exchange Offer, a written representation to Services
and CCPR (which may be contained in the letter of transmittal contemplated
by the Exchange Offer Registration Statement) to the effect that (A) it is
not an affiliate of Services or CCPR (or that if it is such an affiliate,
it will comply with the registration and prospectus delivery requirements
of the Act to the extent applicable), (B) it is not engaged in, and does
not intend to engage in, and has no arrangement or understanding with any
person to participate in, a distribution of the Series B Notes to be issued
in the Exchange Offer and (C) it is acquiring the Series B Notes in its
ordinary course of business. In addition, all such Holders of Transfer
Restricted Notes shall otherwise reasonably cooperate with Services and
CCPR in preparations for the Exchange Offer. Each Holder hereby
acknowledges and agrees that any Broker-Dealer and any such Holder using
the Exchange Offer to participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under Commission policy as in
effect on the date of this Agreement rely on the position of the Commission
enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and
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Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted
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in the Commission's letter to Shearman & Sterling dated July 2, 1993, and
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similar no-action letters (including, if applicable, any no-action letter
obtained pursuant to clause (i) above), and (2) must comply with the
registration and prospectus delivery requirements of the Act in connection
with a secondary resale transaction and that such a secondary resale
transaction must be covered by an effective registration statement
containing the selling security holder information required by Item 507 or
508, as applicable, of Regulation S-K if the resales are of Series B Notes
obtained by such Holder in exchange for Series A Notes acquired by such
Holder directly from Services, CCPR or any of their affiliates.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, Services and CCPR shall provide a supplemental letter to the
Commission (A) stating that Services and CCPR are registering the Exchange
Offer in reliance on the position of the Commission enunciated in Exxon
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Capital Holdings Corporation (available May 13, 1988), Xxxxxx Xxxxxxx and
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Co., Inc. (available June 5, 1991) and, if applicable, any no-action letter
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obtained pursuant to clause (i) above, (B) including a representation that
neither Services nor CCPR has entered into any arrangement or understanding
with any Person to distribute the Series B Notes to be received in the
Exchange Offer and that, to the best of Services' and CCPR's information
and belief, each Holder participating in the Exchange Offer is acquiring
the Series B Notes in its ordinary course
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of business and has no arrangement or understanding with any Person to
participate in the distribution of the Series B Notes received in the
Exchange Offer and (C) including any other undertaking or representation
reasonably required by the Commission as set forth in any no-action letter
obtained pursuant to clause (i) above.
(b) Shelf Registration Statement. In connection with the Shelf
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Registration Statement, Services and CCPR shall comply with all the provisions
of Section 6(c) below and shall use their reasonable best efforts to effect such
registration to permit the sale of the Transfer Restricted Notes being sold in
accordance with the intended method or methods of distribution thereof (as
indicated in the information furnished to Services or CCPR pursuant to Section
4(b) hereof), and pursuant thereto Services and CCPR will prepare and file with
the Commission a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale of
the Transfer Restricted Notes in accordance with the intended method or methods
of distribution thereof within the time periods and otherwise in accordance with
the provisions hereof.
(c) General Provisions. In connection with any Registration Statement and
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any related Prospectus required by this Agreement to permit the sale or resale
of Transfer Restricted Notes (including, without limitation, any Exchange Offer
Registration Statement and the related Prospectus, to the extent that the same
are required to be available to permit sales of Broker-Dealer Transfer
Restricted Notes by Restricted Broker-Dealers), Services and CCPR shall:
(i) use their reasonable best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements (including, if required by the Act or any regulation thereunder,
financial statements of CCPR) for the period specified in Section 3 or 4 of
this Agreement, as applicable. Upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained therein
(A) to contain a material misstatement or omission or (B) not to be
effective and usable for resale of Transfer Restricted Notes during the
period required by this Agreement, Services and CCPR shall file promptly an
appropriate amendment to such Registration Statement, (1) in the case of
clause (A), correcting any such misstatement or omission, and (2) in the
case of either clause (A) or (B), use their reasonable best efforts to
cause such amendment to be declared effective and such Registration
Statement and the related Prospectus to become usable for their intended
purpose(s) as soon as practicable thereafter; provided, however, that
Services and CCPR may allow the Shelf Registration Statement to fail to be
effective or usable for a period of up to 60 days during the three-year
period of effectiveness required by Section 4 hereof, but in no event for
any period in excess of 30 consecutive days, if (1) the board of directors
of Services or CCPR determines in good faith that it is in the best
interests of Services or CCPR not to disclose the existence of or facts
surrounding any proposed or pending material corporate transaction
involving Services or CCPR and (2) Services or CCPR notify the Holders
within two Business Days after such determination by the board of
directors; provided, further, however, that the three-year period referred
to in Section 4 hereof shall be extended by the number of days during which
the Shelf Registration Statement was not effective or usable pursuant to
the foregoing;
(ii) prepare and file with the Commission such amendments and post-
effective amendments to the Registration Statement as may be necessary to
keep the Registration Statement effective for the period set forth in
Section 3 or 4 hereof, as applicable, or such shorter period as will
terminate when all Transfer Restricted Notes covered by such Registration
Statement have been sold; cause the Prospectus to be supplemented by any
required Prospectus supplement, and
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as so supplemented to be filed pursuant to Rule 424 under the Act, and to
comply fully with Rules 424 and 430A, as applicable, under the Act in a
timely manner; and comply with the provisions of the Act with respect to
the disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders promptly
and, if requested by such Persons, confirm such advice in writing, (A) when
the Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to any Registration Statement or any post-
effective amendment thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the Act or
of the suspension by any state securities commission of the qualification
of the Transfer Restricted Notes for offering or sale in any jurisdiction,
or the initiation of any proceeding for any of the preceding purposes, (D)
of the existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any document
incorporated by reference therein untrue, or that requires the making of
any additions to or changes in the Registration Statement in order to make
the statements therein not misleading, or that requires the making of any
additions to or changes in the Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Notes under state securities or Blue Sky laws, Services
and CCPR shall use their reasonable best efforts to obtain the withdrawal
or lifting of such order at the earliest possible time;
(iv) furnish to the Initial Purchasers, each selling Holder named in
any Registration Statement or Prospectus and the underwriter(s) in
connection with such sale, if any, before filing with the Commission,
copies of any Registration Statement or any Prospectus included therein or
any amendments or supplements to any such Registration Statement or
Prospectus (including, upon request, all documents incorporated by
reference after the initial filing of such Registration Statement), which
documents will be subject to the review and comment of such Holders and
underwriter(s) in connection with such sale, if any, for a period of at
least five Business Days, and Services and CCPR will not file any such
Registration Statement or Prospectus or any amendment or supplement to any
such Registration Statement or Prospectus (including all such documents
incorporated by reference) to which the selling Holders of the Transfer
Restricted Notes covered by such Registration Statement or the
underwriter(s) in connection with such sale, if any, shall reasonably
object within five Business Days after the receipt thereof. A selling
Holder or underwriter, if any, shall be deemed to have reasonably objected
to such filing if such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains a material
misstatement or omission;
(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to the selling Holders and to the
underwriter(s) in connection with such sale, if any, and, if requested
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by a selling Holder, make Services' and CCPR's representatives available
for discussion of such document and other customary due diligence matters,
and include such information in such document prior to the filing thereof
as such selling Holders or underwriter(s), if any, reasonably may request;
(vi) subject to the execution of customary confidentiality
agreements, make available at reasonable times for inspection by the
selling Holders, any underwriter participating in any disposition pursuant
to such Registration Statement and any attorney or accountant retained by
such selling Holders or any of such underwriter(s), all financial and other
records, pertinent corporate documents and properties of Services and CCPR
and cause their officers, directors and employees to supply all information
reasonably requested by any such Holder, underwriter, attorney or
accountant in connection with such Registration Statement or any post-
effective amendment thereto subsequent to the filing thereof and prior to
its effectiveness;
(vi) if requested by any selling Holders or the underwriter(s) in
connection with such sale, if any, promptly include in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Notes, information with respect to
the principal amount of Transfer Restricted Notes being sold to such
underwriter(s), the purchase price being paid therefor and any other terms
of the offering of the Transfer Restricted Notes to be sold in such
offering; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after Services or CCPR is
notified of the matters to be included in such Prospectus supplement or
post-effective amendment;
(viii) cause the Transfer Restricted Notes covered by the Registration
Statement to be rated with the appropriate rating agencies, if so requested
by the Holders of a majority in aggregate principal amount of Notes covered
thereby or the underwriter(s), if any;
(ix) furnish to each selling Holder and the underwriter(s) in
connection with such sale, if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference
therein and exhibits (including exhibits incorporated therein by
reference);
(x) deliver to each selling Holder and each of the underwriter(s),
if any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Holders or underwriter(s) reasonably may request; Services and CCPR hereby
consent to the use of the Prospectus and any amendment or supplement
thereto by each of the selling Holders and each of the underwriter(s), if
any, in connection with the offering and the sale of the Transfer
Restricted Notes covered by the Prospectus or any amendment or supplement
thereto;
(xi) to enter into such agreements (including an underwriting
agreement), and make such representations and warranties, and take all such
other actions in connection therewith in order to expedite or facilitate
the disposition of the Transfer Restricted Notes pursuant to any
Registration Statement contemplated by this Agreement as may be reasonably
requested by any selling Holder of Transfer Restricted Notes included in
such registration or underwriter in
10
connection with any sale or resale pursuant to any Registration Statement
contemplated by this Agreement and, whether or not an underwriting
agreement is entered into and whether or not the registration is an
Underwritten Registration, Services and CCPR shall:
(A) furnish, to each selling Holder and each underwriter, if
any, in such substance and scope as they may reasonably request and as
are customarily made by issuers to underwriters in primary
underwritten offerings, upon the date of, and, if applicable, upon the
date of the Consummation of the Exchange Offer and, if applicable, the
effectiveness of the Shelf Registration Statement:
(1) a certificate, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, signed on behalf of
Services and CCPR by (x) the President or any Vice President and
(y) a principal financial or accounting officer of Services and
CCPR, confirming, as of the date thereof, the matters set forth
in paragraphs (a) through (c) of Section 9 of the Purchase
Agreement and such other similar matters as the Holders and/or
underwriter(s) may reasonably request;
(2) an opinion, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel for
Services and CCPR, covering matters similar to those set forth in
paragraphs (e), (f) and (g) of Section 9 of the Purchase
Agreement and such other matter as the Holders may reasonably
request, and in any event including a statement to the effect
that such counsel has participated in conferences with directors,
officers and other representatives of Services and CCPR and
representatives of the independent public accountants for
Services and CCPR in connection with the preparation of the
applicable Registration Statement and has considered the matters
required to be stated therein and the statements concluded
therein, although such counsel is not passing upon and does not
assume responsibility for, the accuracy, completeness or fairness
of such statements and has made no independent check or
verification thereof; and that such counsel advises such Holders,
on the basis of the foregoing (relying as to materiality to a
large extent upon facts provided to such counsel by officers and
other representatives of Services), no facts have come to such
counsel's attention which led it to believe that the applicable
Registration Statement, at the time such Registration Statement
or any post-effective amendment thereto became effective and, in
the case of the Exchange Offer Registration Statement, as of the
date of Consummation, contained or contains an untrue statement
of a material fact or omitted or omits to state a material fact
necessary to make the statements contained therein, in light of
the circumstances under which they were made, not misleading, or
that the Prospectus contained in such Registration Statement as
of its date and, in the case of the opinion dated the date of
Consummation of the Exchange Offer, as of the date of
Consummation, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact
necessary to make the statements contained therein, in the light
of the circumstances under which they were made, not misleading.
Without limiting the foregoing, such counsel need express no
opinion or belief with respect to the financial statements and
related notes and other financial, statistical and accounting
data included in
11
any Registration Statement contemplated by this Agreement or the
related Prospectus; and
(3) a customary comfort letter, dated as of the date of
effectiveness of the Shelf Registration Statement or the date of
Consummation of the Exchange Offer, as the case may be, from
Services' and CCPR's independent accountants, in the customary
form and covering matters of the type customarily covered in
comfort letters to underwriters in connection with underwritten
offerings, and affirming the matters set forth in the comfort
letters delivered pursuant to Section 9(i) of the Purchase
Agreement, without exception;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by the selling Holders or the underwriter(s), if
any, to evidence compliance with clause (A) above and with any
customary conditions contained in the underwriting agreement or other
agreement entered into by Services and CCPR pursuant to this clause
(xi).
The above shall be done at each closing under such underwriting or
similar agreement, as and to the extent required thereunder, and if at any
time the representations and warranties of Services and CCPR contemplated
in (A)(1) above cease to be true and correct, Services or CCPR shall so
advise the underwriter(s), if any, and selling Holders promptly and if
requested by such Persons, shall confirm such advice in writing;
(xii) prior to any public offering of Transfer Restricted Notes,
cooperate with the selling Holders, the underwriter(s), if any, and their
respective counsel in connection with the registration and qualification of
the Transfer Restricted Notes under the securities or Blue Sky laws of such
jurisdictions as the selling Holders or underwriter(s), if any, may
reasonably request and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions of
the Transfer Restricted Notes covered by the applicable Registration
Statement; provided, however, that neither Services nor CCPR shall be
required to register or qualify as a foreign corporation where it is not
now so qualified or to take any action that would subject it to the service
of process in suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any jurisdiction
where it is not now so subject;
(xiii) issue, upon the request of any Holder of Series A Notes covered
by any Shelf Registration Statement contemplated by this Agreement, Series
B Notes, having an aggregate principal amount equal to the aggregate
principal amount of Series A Notes surrendered to Services by such Holder
in exchange therefor or being sold by such Holder; such Series B Notes to
be registered in the name of such Holder or in the name of the purchaser(s)
of such Notes, as the case may be; in return, the Series A Notes held by
such Holder shall be surrendered to Services for cancellation;
(xiv) in connection with any sale of Transfer Restricted Notes that
will result in such securities no longer being Transfer Restricted Notes,
cooperate with the selling Holders and the
12
underwriter(s), if any, to facilitate the timely preparation and delivery
of certificates representing Transfer Restricted Notes to be sold and not
bearing any restrictive legends; and to register such Transfer Restricted
Notes in such denominations and such names as the Holders or the
underwriter(s), if any, may request at least two Business Days prior to
such sale of Transfer Restricted Notes;
(xv) use their reasonable best efforts to cause the disposition of
the Transfer Restricted Notes covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof or
the underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Notes, subject to the proviso contained in clause (xi) above;
(xvi) if any fact or event contemplated by clause (c)(iii)(D) above
shall exist or have occurred, use their reasonable best efforts to prepare
a supplement or post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Notes, the Prospectus will not contain an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(xvii) provide a CUSIP number for all Transfer Restricted Notes not
later than the effective date of a Registration Statement covering such
Transfer Restricted Notes and provide the Trustee under the Indenture with
printed certificates for the Transfer Restricted Notes which are in a form
eligible for deposit with The Depository Trust Company;
(xviii) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of the
NASD, and use their reasonable best efforts to cause such Registration
Statement to become effective and approved by such governmental agencies or
authorities as may be necessary to enable the Holders selling Transfer
Restricted Notes to consummate the disposition of such Transfer Restricted
Notes;
(xix) otherwise use their reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to their security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be audited)
covering a twelve-month period beginning after the effective date of the
Registration Statement (as such term is defined in paragraph (c) of Rule
158 under the Act);
(xx) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement required by
this Agreement and, in connection therewith, cooperate with the Trustee and
the Holders of Notes to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance with the terms
of the TIA; and execute and use their reasonable best efforts to cause the
Trustee to execute, all documents that may be required to effect such
changes and all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely manner;
13
(xxi) cause all Transfer Restricted Securities covered by the
Registration Statement to be listed on each securities exchange on which
similar securities issued by Services are then listed if requested by the
Holders of a majority in aggregate principal amount of Series A Notes or
the managing underwriter(s), if any; and
(xxii) provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of Section 13 or
Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
-----------------------
Transfer Restricted Note that, upon receipt of any notice from Services or CCPR
of the existence of any fact of the kind described in Section 6(c)(iii)(D)
hereof, such Holder will forthwith discontinue disposition of Transfer
Restricted Notes pursuant to the applicable Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xvi) hereof, or until it is advised in writing by
Services or CCPR that the use of the Prospectus may be resumed (the "Advice"),
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus. If so directed by Services or
CCPR, each Holder will deliver to Services or CCPR (at Services' or CCPR's
expense) all copies, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Transfer Restricted Notes that was
current at the time of receipt of either such notice. In the event Services or
CCPR shall give any such notice, the time period regarding the effectiveness of
such Registration Statement set forth in Section 3 or 4 hereof, as applicable,
shall be extended by the number of days during the period from and including the
date of the giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and
including the date when each selling Holder covered by such Registration
Statement shall have received the copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(xv) hereof or shall have received the
Advice.
7. REGISTRATION EXPENSES
(a) All expenses incident to the Services' or CCPR's performance of or
compliance with this Agreement will be borne by Services and CCPR, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses (including filings
made by any Initial Purchaser or Holder with the NASD (and, if applicable, the
fees and expenses of any "qualified independent underwriter" and its counsel
that may be required by the rules and regulations of the NASD)); (ii) all fees
and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including printing certificates
for the Series B Notes to be issued in the Exchange Offer and printing of
Prospectuses, messenger and delivery services and telephone); (iv) all fees and
disbursements of counsel for the Services and CCPR and, subject to Section 7(b)
below, the Holders of Transfer Restricted Securities; (v) all application and
filing fees in connection with listing Notes on a national securities exchange
or automated quotation system pursuant to the requirements hereof; and (vi) all
fees and disbursements of independent certified public accountants of the
Services and CCPR (including the expenses of any special audit and comfort
letters required by or incident to such performance).
Services and CCPR will bear their internal expenses (including, without
limitation, all salaries and expenses of their officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees and
expenses of any Person, including special experts, retained by Services or CCPR.
14
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), Services and CCPR will
reimburse the Initial Purchasers and the Holders of Transfer Restricted
Securities being tendered in the Exchange Offer and/or resold pursuant to the
"Plan of Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
Xxxxxx & Xxxxxxx or such other counsel as may be chosen by the Holders of a
majority in principal amount of the Transfer Restricted Securities for whose
benefit such Registration Statement is being prepared.
8. INDEMNIFICATION
(a) Services and CCPR, jointly and severally, agree to indemnify and
hold each of the Holders and each person, if any, who controls or is under
common control with any of the Holders within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act harmless from and against any
and all losses, claims, damages, liabilities, actions or judgments (including,
without limiting the foregoing, the reasonable legal and other expenses incurred
in connection with any action, suit or proceeding or any claim asserted) caused
by any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement or Prospectus, or any amendment or
supplement thereto, or arise out of or are caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, provided, however, that
Services and CCPR will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission (i) in
reliance upon and in conformity with written information furnished to Services
or CCPR by any Holder specifically for use therein or (ii) made in a preliminary
Prospectus, if a copy of the final Prospectus (as amended or supplemented, if
Services or CCPR shall furnish the amendment or supplement thereto) was not sent
or given by or on behalf of the Holders to the person asserting any such loss,
claim or liability, if required by law so to have been delivered, at or prior to
the written confirmation of the sale of the Notes as required by the Securities
Act and the final Prospectus (as so amended or supplemented) would have
corrected in all material respects such untrue statement or omission.
(b) In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought against any Holder or
any person controlling such Holder, based upon any Registration Statement or
Prospectus or any amendment or supplement thereto and with respect to which
indemnity may be sought against Services or CCPR, such Holder or any person
controlling such Holder shall promptly notify Services or CCPR in writing and
Services or CCPR shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to such Holder and payment of all reasonable
fees and expenses. Such Holder or any such controlling person shall have the
right to employ separate counsel in any such action or proceeding and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at such Holder's expense or at the expense of any such controlling
person unless (i) the employment of such counsel has been specifically
authorized in writing by Services or CCPR, (ii) neither Services nor CCPR has
assumed the defense and employed counsel reasonably satisfactory to such Holder
within a reasonable time after notice of commencement of such action, or (iii)
the named parties to any such action or proceeding (including any impleaded
parties) include both a Holder or such controlling person and Services or CCPR
and such Holder or such controlling person shall have been advised in writing by
such counsel (with a copy to Services or CCPR) that there may be one or more
legal defenses available to such Holder or such controlling person which
15
are different from or additional to those available to Services or CCPR (in
which case Services and CCPR shall not have the right to assume the defense of
such action or proceeding on behalf of such Holder or on behalf of such
controlling person, it being understood, however, that Services and CCPR shall
not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for the Holders and such controlling persons, which firm shall be
designated in writing by the Holders, and that all such fees and expenses shall
be reimbursed as they are incurred upon written request and presentation of
reasonably satisfactory invoices) . Services and CCPR shall not be liable for
any settlement of any such action effected without the written consent of
Services or CCPR, which shall not be unreasonably withheld, but if settled with
the written consent of Services or CCPR or if there is a final judgment for the
plaintiff, Services and CCPR agree to indemnify and hold harmless such Holder
and any such controlling person from and against any loss or liability by reason
of such settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is a party
and indemnity has been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(c) Each Holder agrees, severally but not jointly, to indemnify and
hold harmless Services, CCPR and their respective directors, officers, and any
person controlling Services or CCPR within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity from Services or CCPR to each Holder, but only with reference to
information relating to such Holder furnished in writing by or on behalf of such
Holder expressly for use in any Registration Statement or Prospectus or any
supplement or amendment to any thereof. In case any action shall be brought
against Services, CCPR or any of their directors, any such officers, or any such
controlling person based on any Registration Statement or Prospectus and in
respect of which indemnity may be sought against any or all of the Holders, such
Holders shall have the rights and duties given to Services and CCPR (except that
if Services or CCPR as provided in Section 8(b) hereof shall have assumed the
defense thereof such Holders shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof but the fees and
expenses of such counsel shall be at such Holder's expense), and Services, CCPR
and their directors, any such officers, and any such controlling person shall
have the rights and duties given to the Holders by Section 8(b) hereof.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to herein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by Services and CCPR on the one hand and
the Holders on the other from the sale of the Series A Notes, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of Services and CCPR
on the one hand and the Holders on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by Services and CCPR on the one
hand and the Holders on the other hand shall be deemed to be in the same
proportions as the total proceeds from the offering of the Series A Notes (net
of underwriting discounts and commissions but before deducting expenses)
received by Services and CCPR, and the total proceeds received by such
16
Holder upon its sale of the Series A Notes, respectively. The relative fault of
Services and CCPR on the one hand and the Holders on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by Services and CCPR or by the Holders and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities or
judgments shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Services, CCPR and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8(d), in no event shall any
Holder be required to contribute any amount in excess of the amount received by
such Holder with respect to the sale of its Series A Notes exceeds the amount of
any damages which such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 8(d) are several and not
joint and are in proportion to the respective underwriting obligations
hereunder.
(e) The obligations of Services and CCPR under this Section 8 shall be
in addition to any liability that Services and CCPR may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any of the Holders within the meaning of the Securities Act; and the obligations
of the Holders under this Section 8 shall be in addition to any liability that
each respective Holder may otherwise have and shall extend, upon the same terms
and conditions, to each director and officer of Services and CCPR and to each
person, if any, who controls Services or CCPR within the meaning of the
Securities Act.
9. RULE 144A
Services and CCPR hereby agree with each Holder, for so long as any
Transfer Restricted Notes remain outstanding, to make available, upon request of
any Holder of Transfer Restricted Notes, to any Holder or beneficial owner of
Transfer Restricted Notes in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Notes designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Act in order to permit resales of such Transfer Restricted Notes pursuant to
Rule 144A.
10. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder unless
such Holder (a) agrees to sell such Holder's Transfer Restricted Notes on the
basis provided in customary underwriting arrangements entered into in connection
therewith and (b) completes and executes all reasonable
17
questionnaires, powers of attorney, lock-up letters and other documents required
under the terms of such underwriting arrangements.
11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Notes covered by a Shelf Registration
Statement who desire to do so may sell such Transfer Restricted Notes in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers that will administer such offering
will be selected by the Holders of a majority in aggregate principal amount of
the Transfer Restricted Notes included in such offering. Such investment
bankers and managers must be reasonably satisfactory to Services and CCPR and
are referred to herein as the "underwriters."
12. MISCELLANEOUS
(a) Remedies. Services and CCPR agree that monetary damages (including the
--------
Liquidated Damages contemplated hereby) would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Services and CCPR will not, on or after
--------------------------
the date of this Agreement, enter into any agreement with respect to their
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. Neither Services
nor CCPR have previously entered into any agreement granting any registration
rights with respect to its securities to any Person. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of Services' or CCPR's securities under any
agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. Services and CCPR will not take any
-------------------------------
action, or voluntarily permit any change to occur, with respect to the Notes
that would materially and adversely affect the ability of the Holders to
Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not be
----------------------
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless Services or CCPR have obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Notes. Notwithstanding the foregoing, a waiver or consent
to departure from the provisions hereof that relates exclusively to the rights
of Holders whose securities are being tendered pursuant to the Exchange Offer
and that does not affect directly or indirectly the rights of other Holders
whose securities are not being tendered pursuant to such Exchange Offer may be
given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Notes subject to such Exchange Offer.
(e) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
18
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the Indenture;
and
(ii) if to Services or CCPR:
CCPR Services, Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Transfer Restricted Notes; provided, however, that this Agreement
shall not inure to the benefit of or be binding upon a successor or assign of a
Holder unless and to the extent such successor or assign acquired Transfer
Restricted Notes directly from such Holder.
(g) Counterparts. This Agreement 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.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
19
(k) Entire Agreement. This Agreement together with the other Operative
----------------
Documents (as defined in the Purchase Agreement) is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by Services and CCPR with
respect to the Transfer Restricted Notes. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
[Signature Page Follows]
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Very truly yours,
CCPR SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President-General Counsel
and Secretary
CELLULAR COMMUNICATIONS OF
PUERTO RICO, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President-General Counsel
and Secretary
Accepted and Agreed to:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
SALOMON BROTHERS INC
XXXXXXXXXXX XXXXXXX SECURITIES, INC.
By: Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
By: ________________________________
Name:
Title:
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Very truly yours,
CCPR SERVICES, INC.
By: ___________________________________
Name:
Title:
CELLULAR COMMUNICATIONS OF
PUERTO RICO, INC.
By: ___________________________________
Name:
Title:
Accepted and Agreed to:
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
SALOMON BROTHERS INC
XXXXXXXXXXX XXXXXXX SECURITIES, INC.
By: Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
