EXHIBIT 4.7
EXECUTION COPY
$500,000,000
CENTENNIAL COMMUNICATIONS CORP.
CENTENNIAL CELLULAR OPERATING CO. LLC
10 1/8% SENIOR NOTES DUE 2013
PURCHASE AGREEMENT
June 16, 2003
June 16, 2003
Credit Suisse First Boston LLC
Banc of America Securities LLC
X.X. Xxxxxx Securities Inc.
c/o Credit Suisse First Boston LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs and Mesdames:
Centennial Communications Corp., a Delaware corporation (the
"COMPANY") and Centennial Cellular Operating Co. LLC, a wholly-owned subsidiary
of the Company and a limited liability company organized under the laws of the
state of Delaware ("CENTENNIAL CELLULAR", and together with the Company, the
"ISSUERS") propose to issue and sell to the several purchasers named in Schedule
I hereto (the "INITIAL PURCHASERS") $500,000,000 principal amount of its 10 1/8%
Senior Notes due 2013 (the "SECURITIES") to be issued pursuant to the provisions
of an Indenture dated as of June 20, 2003 (the "INDENTURE") among the Issuers,
Centennial Puerto Rico Operations Corp., a Delaware corporation, as guarantor
(the "GUARANTOR"), and U.S. Bank National Association, trustee (the "TRUSTEE").
The obligations of Centennial Cellular under the Securities and the Indenture
will be guaranteed by the Guarantor pursuant to the terms of the Indenture (the
"GUARANTEE").
The Securities and the Guarantee will be offered without being
registered under the Securities Act of 1933, as amended (the "SECURITIES ACT"),
to qualified institutional buyers in compliance with the exemption from
registration provided by Rule 144A under the Securities Act and in offshore
transactions in reliance on Regulation S under the Securities Act ("REGULATION
S").
The Initial Purchasers and their direct and indirect
transferees will be entitled to the benefits of a Registration Rights Agreement,
dated as of June 20, 2003 and substantially in the form attached hereto as
Exhibit A, among the Issuers, the Guarantor and the Initial Purchasers (the
"REGISTRATION RIGHTS AGREEMENT").
In connection with the sale of the Securities and the
Guarantee, the Issuers have prepared a preliminary offering circular (the
"PRELIMINARY CIRCULAR") and will prepare a final offering circular (the "FINAL
CIRCULAR" and, with the Preliminary Circular, each a "CIRCULAR") including a
description of the terms of the Securities and the Guarantee, the terms of the
offering and a description of the Company. As used herein, the term "Circular"
shall include in each case the documents incorporated by reference therein, if
any. The terms "supplement", "amendment" and "amend" as used herein with respect
to a Circular shall include all documents deemed to be incorporated by reference
in the Preliminary Circular or Final Circular that are filed subsequent to the
date of such Circular with the Securities and Exchange Commission (the
"COMMISSION") pursuant to the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT").
1. Representations and Warranties. The Company, Centennial Cellular and the
Guarantor, jointly and severally, represent and warrant to, and agree with, you
that:
(a) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in either Circular will comply
when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder and (ii) the
Preliminary Circular does not contain and the Final Circular, in the form
used by the Initial Purchasers to confirm sales and on the Closing Date (as
defined in Section 4), will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this paragraph do not apply to statements or omissions in either Circular
based upon information relating to any Initial Purchaser furnished to the
Issuers in writing by such Initial Purchaser through you expressly for use
therein.
(b) Each of the Company and Guarantor has been duly incorporated, are
validly existing and in good standing under the laws of the State of
Delaware and Centennial Cellular has been duly formed, is validly existing
and is a limited liability company in good standing under the laws of the
jurisdiction of its formation. Each of the Company, Centennial Cellular and
the Guarantor have the power and authority to own their property and to
conduct their business as described in each Circular and are duly qualified
to transact business and are in good standing in each jurisdiction in which
the conduct of their business or their ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not reasonably be expected to have a
material adverse effect on the Issuers, the Guarantor and their
subsidiaries, taken as a whole.
(c) Each direct or indirect subsidiary of the Company, Centennial
Cellular or the Guarantor having an aggregate net book value of assets in
excess of 10% of the total assets of the Issuers, the Guarantor and their
subsidiaries on a consolidated basis (each, a "SIGNIFICANT SUBSIDIARY" and
for purposes of this Agreement, Centennial Cellular and the Guarantor shall
be deemed to be Significant Subsidiaries of the Company) has been duly
formed or incorporated, as the case may be, is validly existing as a
corporation, partnership or a limited liability company, as the case may
be, in good standing under the laws of the jurisdiction of its formation or
incorporation, has the power and authority to own its property and to
conduct its business as described in each Circular and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not reasonably be expected to have a
material adverse effect on the Issuers, the Guarantor and their
subsidiaries, taken as a whole; all of the membership interests of
Centennial Cellular have been duly and validly authorized and issued, are
fully paid and non-assessable and are owned directly by the Company; except
as described in the Offering Circular, all of the issued shares of capital
stock of each Significant Subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and are
owned directly or indirectly by the Company, Centennial Cellular or
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the Guarantor, free and clear of all liens, encumbrances, equities or
claims (other than Permitted Liens, as defined in the Indenture). As used
in this Agreement, "subsidiary" or "subsidiaries" shall mean both direct
and indirect subsidiaries of an entity.
(d) This Agreement has been duly authorized, executed and delivered by
each of the Company, Centennial Cellular and the Guarantor.
(e) The Company's authorized equity capitalization is as set forth in
the Final Circular; the outstanding shares of common stock of the Company
and each of the Significant Subsidiaries have been duly and validly
authorized and issued and are fully paid and non-assessable.
(f) The Securities have been duly authorized by each of the Company
and Centennial Cellular, and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid for by the
Initial Purchasers in accordance with the terms of this Agreement, will be
valid and binding obligations of each of the Company and Centennial
Cellular, enforceable in accordance with their terms, subject to the
effects of (i) bankruptcy, insolvency, arrangement, reorganization,
moratorium and other similar laws affecting the rights and remedies of
creditors generally (including without limitation, the effect of statutory
or other laws regarding fraudulent transfers or preferential transfers) and
(ii) general principles of equity, including without limitation concepts
of materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance, injunctive relief or other
equitable remedies regardless of whether enforcement is considered in a
proceeding in equity or at law ((i) and (ii) collectively, the "BANKRUPTCY
AND EQUITY EXCEPTIONS" and will be entitled to the benefits of the
Indenture and the Registration Rights Agreement.
(g) The Indenture, including the Guarantee forming part thereof, has
been duly authorized by each of the Company, Centennial Cellular and the
Guarantor, and, when executed and delivered by each of the Company,
Centennial Cellular and the Guarantor, will be a valid and binding
agreement of each of the Company, Centennial Cellular and the Guarantor,
enforceable in accordance with its terms, subject to the effects of the
Bankruptcy and Equity Exceptions.
(h) The Registration Rights Agreement has been duly authorized by each
of the Company, Centennial Cellular and the Guarantor, and, when executed
and delivered by each of the Company, Centennial Cellular and the
Guarantor, will be a valid and binding agreement of the Company, Centennial
Cellular and the Guarantor, enforceable in accordance with its terms,
subject to the effects of Bankruptcy and Equity Exceptions.
(i) (A) The execution and delivery by each of the Company, Centennial
Cellular and the Guarantor of, and the performance by each of the Company,
Centennial Cellular and the Guarantor of their respective obligations
under, this Agreement, the Indenture, the Registration Rights Agreement,
the Securities and the Guarantee and the issuance, sale and delivery of the
Securities and the Guarantee will not contravene any provision of
applicable law or the certificate of incorporation or by-laws or other
governing documents of each of the Company, Centennial Cellular or the
Guarantor or
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any of their subsidiaries, or contravene any agreement or other instrument
binding upon the Company, Centennial Cellular, the Guarantor or any of
their subsidiaries that is material to the Issuers, the Guarantor and their
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company,
Centennial Cellular, the Guarantor or any subsidiary, and (B) no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Issuers
and the Guarantor of their obligations under this Agreement, the Indenture,
the Registration Rights Agreement, the Securities, the Guarantee or the
issuance, sale and delivery of the Securities and the Guarantee, except
such as may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Securities and by
Federal and state securities laws with respect to the Issuers' and the
Guarantor's obligations under the Registration Rights Agreement, except in
each case in this clause (B) to the extent such would not reasonably be
expected to have a material adverse effect on the Issuers, the Guarantor
and their subsidiaries, taken as a whole or to the extent such consents,
approvals or authorizations are to obtained on the Closing Date.
(j) Deloitte & Touche LLP, the certified public accountants who have
certified the consolidated financial statements, together with related
schedules and notes, included in the Preliminary Circular and the Final
Circular are independent public accountants with respect to the Issuers
within the meaning of Regulation S-X of the Securities Act.
(k) The consolidated financial statements, together with related
schedules and notes, included in the Preliminary Circular and the Final
Circular (and any amendment or supplement thereto), present fairly the
consolidated financial condition, results of operations, cash flows and
stockholders' equity of the Company and its subsidiaries on the basis
stated in the Final Circular at the respective dates or for the respective
periods to which they apply; such statements and related schedules and
notes have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, except as
disclosed therein; and the other financial information and data set forth
in the Preliminary Circular and the Final Circular (and any amendment or
supplement thereto) is presented fairly and is prepared on a basis
consistent with the audited financial statements included in the
Preliminary Circular and the Final Circular.
(l) The Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-14 and 15d-14 under the
Exchange Act); such disclosure controls and procedures are designed to
ensure that material information relating to the Company and its
subsidiaries is made known to the Company's Chief Executive Officer and its
Chief Financial Officer by others within those entities, and such
disclosure controls and procedures are effective to perform the functions
for which they were established; since the date of the filing of the
Company's Quarterly Report on Form 10-Q for the most recent quarter ended
for which filings shall have been made, the Company's auditors and the
Audit Committee of the board of directors of the Company have been advised
of: (i) any significant deficiencies in the design or operation of internal
controls which could adversely affect the Company's ability to record,
process, summarize, and report financial data and (ii) any fraud, whether
or not material, that
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involves management or other employees who have a role in the Company's
internal controls; any material weaknesses in internal controls have been
identified for the Company's auditors; and since the date of the most
recent evaluation of such disclosure controls and procedures, there have
been no significant changes in internal controls or in other factors that
could significantly affect internal controls, including any corrective
actions with regard to significant deficiencies and material weaknesses.
(m) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business, properties
or operations of the Issuers, the Guarantor and their subsidiaries, taken
as a whole from that set forth in the Final Circular.
(n) There are no legal or governmental proceedings (including, without
limitation, those of the Federal Communications Commission or any state,
local or commonwealth communications agency or commission) pending or to
our knowledge threatened to which the Company, Centennial Cellular, the
Guarantor or any of their subsidiaries is a party or to which any of the
properties of the Company, Centennial Cellular, the Guarantor or any of
their subsidiaries is subject other than proceedings accurately described
in all material respects in each Circular and other than proceedings that
would not reasonably be expected to have a material adverse effect on the
Issuers, the Guarantor and their subsidiaries, taken as a whole, or on the
power or ability of the Issuers and the Guarantor to perform their
respective obligations under this Agreement, the Indenture, the
Registration Rights Agreement, the Securities, the Guarantee or to
consummate the transactions contemplated by each such agreement, or to
apply the net proceeds of the issuance of the Securities as described in
the Final Circular under the caption "Use of Proceeds".
(o) Each of the Company, Centennial Cellular, the Guarantor and their
Significant Subsidiaries (i) is in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("ENVIRONMENTAL
LAWS"), (ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, reasonably be expected to have a material adverse effect on
the Issuers, the Guarantor and their subsidiaries, taken as a whole.
(p) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, reasonably be expected to
have a material adverse effect on the Issuers, the Guarantor and their
subsidiaries, taken as a whole.
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(q) None of the Company, Centennial Cellular, or the Guarantor is, and
after giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Final Circular,
will be an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended.
(r) The Issuers, the Guarantor and their Significant Subsidiaries have
all necessary certificates, orders, permits, licenses, authorizations,
consents and approvals of and from, and have made all declarations and
filings with, all federal, state, local, foreign supranational, national,
regional and other governmental authorities and all courts and tribunals,
to own, lease, license and use its properties and assets and to conduct its
business in the manner described in the Final Circular, except to the
extent the failure to do so would not reasonably be expected to have a
material adverse effect on the Company, Centennial Cellular, the Guarantor
and their Significant Subsidiaries taken as a whole; and none of the
Company, Centennial Cellular, the Guarantor or any of their Significant
Subsidiaries has received any notice of proceedings relating to revocation
or modification of any such certificates, orders, permits, licenses,
authorizations, consents or approvals, nor is the Company, Centennial
Cellular, the Guarantor or any of their subsidiaries in violation of, or in
default under, any federal, state, local, foreign supranational, national
or regional law, regulation, rule, decree, order or judgment applicable to
the Company, Centennial Cellular, the Guarantor or any of their
subsidiaries the effect of which, singly or in the aggregate, would
reasonably be expected to have a material adverse effect on the Company,
Centennial Cellular, the Guarantor and their Significant subsidiaries,
taken as a whole, except as described in the Final Circular.
(s) None of the Company, Centennial Cellular, the Guarantor or any
affiliate (as defined in Rule 501(b) of Regulation D under the Securities
Act, an "AFFILIATE") of the Company, Centennial Cellular or the Guarantor
has directly, or through any agent (other than the Initial Purchasers as to
which no representation is made), (i) sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of, any security (as
defined in the Securities Act) which is or will be integrated with the sale
of the Securities and the Guarantee in a manner that would require the
registration under the Securities Act of the Securities and the Guarantee
or (ii) offered, solicited offers to buy or sell the Securities and the
Guarantee by any form of general solicitation or general advertising in
connection with the offering of the Securities (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act.
(t) None of the Company, Centennial Cellular, the Guarantor, their
Affiliates or any person acting on any of their behalf (other than the
Initial Purchasers as to which no representation is made) has engaged or
will engage in any directed selling efforts (within the meaning of
Regulation S) with respect to the Securities and the Guarantee and the
Issuers and their Affiliates and any person acting on their behalf have
complied and will comply with the offering restrictions requirement of
Regulation S.
(u) It is not necessary in connection with the offer, sale and
delivery of the Securities and the Guarantee to the Initial Purchasers in
the manner contemplated by this
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Agreement to register the Securities and the Guarantee under the Securities
Act or to qualify the Indenture under the Trust Indenture Act of 1939, as
amended.
(v) The Securities and the Guarantee satisfy the requirements set
forth in Rule 144A(d)(3) under the Securities Act.
(w) The Indenture, Securities and the Guarantee conform in all
material respects to the description thereof contained in the Final
Circular under the heading "Description of the Notes".
(x) The Issuers, the Guarantor and each of their Significant
Subsidiaries are insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as the Issuers and the
Guarantor reasonably believe are prudent and customary in the businesses in
which they are engaged; none of the Company, Centennial Cellular, the
Guarantor or any such subsidiary has been refused any insurance coverage
sought or applied for, except for any such refusal that would not
reasonably be expected to have a material adverse effect on the Issuers,
the Guarantor and their subsidiaries, taken as a whole; and none of the
Company, Centennial Cellular, the Guarantor or any such subsidiary has any
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business at a
cost that would not reasonably be expected to have a material adverse
effect on the Issuers, the Guarantor and their subsidiaries, taken as a
whole, except as described in the Final Circular.
(y) The Issuers, the Guarantor and each of their subsidiaries keep
accurate books and records reflecting their respective assets and maintain
a system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of consolidated financial
statements in conformity with generally accepted accounting principles and
to maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences.
(z) No labor dispute with the employees of the Company, Centennial
Cellular, the Guarantor or their Significant Subsidiaries exists or, to the
knowledge of the Issuers, is imminent; none of the Company, Centennial
Cellular, the Guarantor or any of their subsidiaries is aware of any
existing or imminent labor disturbance by the employees of any of the
Company's, Centennial Cellular's, the Guarantor's or any of their
subsidiaries' principal suppliers, manufacturers, customers or contractors
which, in either case, would reasonably be expected to result in a material
adverse effect on the Issuers, the Guarantor and their subsidiaries, taken
as a whole, except as described in the Final Circular.
(aa) The Issuers, the Guarantor and their Significant Subsidiaries
have good and marketable title to all material real property owned by them
and good title to all other material properties owned by them, in each
case, free and clear of all mortgages, pledges,
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liens, security interests, claims, restrictions or encumbrances of any kind
(other than Permitted Liens, as defined in the Indenture) except such as
would not, singly or in the aggregate, reasonably be expected to materially
affect the value of such property and would not interfere with the use made
and proposed to be made of such property by the Company, Centennial
Cellular, the Guarantor or any of their Significant Subsidiaries, except
for any such interference that would not reasonably be expected to have a
material adverse effect on the Issuers, the Guarantor and their
subsidiaries, taken as a whole; all of the leases and subleases material to
the business of the Issuers, the Guarantor and their subsidiaries,
considered as one enterprise, and under which the Company, Centennial
Cellular, the Guarantor or any of their subsidiaries hold properties, are
in full force and effect, and none of the Company, Centennial Cellular, the
Guarantor or any of their subsidiaries, has any notice of any material
claim of any sort that has been asserted by anyone adverse to the rights of
the Company, Centennial Cellular, the Guarantor or any of their
subsidiaries under any of these leases or subleases, or affecting or
questioning the rights of the Company, Centennial Cellular, the Guarantor
or any of their subsidiaries to the continued possession of the leased or
subleased premises under any such lease or sublease, except in each case to
the extent such would not reasonably be expected to have a material adverse
effect on the Issuers, the Guarantor and their subsidiaries, taken as a
whole.
(bb) All material United States federal income tax returns of the
Issuers, the Guarantor and their subsidiaries required by law to be filed
have been filed and all taxes shown by such returns or otherwise assessed,
which are due and payable, have been paid, except assessments against which
appeals have been or will be promptly taken and as to which adequate
reserves have been provided. The Issuers, the Guarantor and their
subsidiaries have filed all other tax returns that are required to have
been filed by them pursuant to applicable foreign, federal, state, local or
other law except insofar as the failure to file such returns would not
reasonably be expected to result in a material adverse effect on the
Issuers, the Guarantor and their subsidiaries, taken as a whole, and have
paid all taxes due pursuant to such returns or pursuant to any assessment
received by the Issuers, the Guarantor and their subsidiaries, except for
such taxes, if any, as are being contested in good faith and by appropriate
proceedings and as to which adequate reserves have been provided. The
charges, accruals and reserves on the books of the Issuers, the Guarantor
and their subsidiaries in respect of all federal, state, local and foreign
tax liabilities of the Issuers, the Guarantor and each subsidiary for any
years not finally determined are adequate to meet any assessments or
reassessments for additional income tax for any years not finally
determined, except to the extent of any inadequacy that would not
reasonably be expected to result in a material adverse effect on the
Issuers, the Guarantor and their subsidiaries, taken as a whole.
(cc) Except as disclosed in the Final Circular, there are no
contracts, agreements or understandings between the Issuers and/or the
Guarantor with any person that would give rise to a claim against the
Issuer, the Guarantor or the Initial Purchasers for a brokerage commission,
finder's fee or other like payment in connection with this offering.
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(dd) There are no persons or entities with registration or other
similar rights to require the Issuers or the Guarantor to include any
securities in any registration statement filed pursuant to the Registration
Rights Agreement or in any offering made pursuant to any such registration
statement.
Each certificate signed by any officer of an Issuer or the Guarantor
and delivered to the Initial Purchasers or their counsel shall be deemed to
be a representation and warranty by such Issuer or the Guarantor, as the
case may be, to the Initial Purchasers as to the matters covered thereby.
2. Agreements to Sell and Purchase. The Issuers hereby agree to sell to the
several Initial Purchasers, and each Initial Purchaser, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Issuers the respective principal amount of Securities set forth in Schedule I
hereto opposite its name at a purchase price of 97.4% of the principal amount
thereof (the "PURCHASE PRICE") plus accrued interest, if any, to the Closing
Date.
The Issuers hereby agree that, without the prior written consent of Credit
Suisse First Boston LLC on behalf of the Initial Purchasers, it will not, during
the period beginning on the date hereof and continuing to and including the
Closing Date, offer, sell, contract to sell or otherwise dispose of any debt of
the Company, Centennial Cellular or the Guarantor or warrants to purchase debt
of the Company, Centennial Cellular or the Guarantor substantially similar to
the Securities (other than the sale of the Securities under this Agreement.)
3. Terms of Offering. You have advised the Issuers and the Guarantor that
the Initial Purchasers will make an offering of the Securities purchased by the
Initial Purchasers hereunder on the terms to be set forth in the Final Circular,
as soon as practicable after this Agreement is entered into as in your judgment
is advisable.
4. Payment and Delivery. The Issuers hereby advise you that payment for the
Securities shall be made by the Initial Purchasers to Centennial Cellular on
behalf of the Issuers in Federal or other funds immediately available in New
York City against delivery of such Securities for the respective accounts of the
several Initial Purchasers at 10:00 a.m., New York City time, on June 20, 2003,
or at such other time on the same or such other date, as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to as
the "CLOSING DATE."
Certificates for the Securities shall be in definitive form or global form,
as specified by you, and registered in such names and in such denominations as
you shall request in writing prior to the Closing Date. The certificates
evidencing the Securities shall be delivered to you on the Closing Date for the
respective accounts of the several Initial Purchasers, with any transfer taxes
payable in connection with the transfer of the Securities to the Initial
Purchasers duly paid, against payment of the Purchase Price therefor.
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5. Conditions to the Initial Purchasers' Obligations. The
several obligations of the Initial Purchasers to purchase and pay for the
Securities on the Closing Date are subject to the following conditions:
(a) The Initial Purchasers shall have received on the Closing
Date a certificate from the Issuers and the Guarantor, dated the
Closing Date and signed by an executive officer of each of the Issuers
and the Guarantor, to the effect that the representations and
warranties of the Issuers and the Guarantor contained in this Agreement
are true and correct as of the Closing Date and the Issuers and the
Guarantor have complied with all of the agreements and satisfied all of
the conditions on their part to be performed or satisfied hereunder on
or before the Closing Date.
The officers signing and delivering such certificates may rely
upon the best of their knowledge as to proceedings threatened.
(b) The Initial Purchasers shall have received on the Closing
Date (1) an opinion of Xxxxxx, Xxxx & Xxxxxxxx L.L.P., outside counsel
for the Issuers and the Guarantor, dated the Closing Date,
substantially to the effect set forth in Exhibit B and (2) an opinion
from Xxxx X. Xxxx, Senior Vice President and General Counsel for the
Issuers and the Guarantor, dated the Closing Date, substantially to the
effect set forth in Exhibit C.
(c) The Initial Purchasers shall have received on the Closing
Date an opinion of Xxxx, Xxxxxx & Xxxxxxxxx, L.L.P., United States and
Puerto Rican regulatory counsel for the Issuers and the Guarantor,
dated the Closing Date, substantially to the effect set forth in
Exhibit D.
(d) The Initial Purchasers shall have received on the Closing
Date an opinion of Xxxx Xxxxxxx Xxxxx, in-house Dominican Republic
counsel for the Issuers and the Guarantor, dated the Closing Date,
substantially to the effect set forth in Exhibit E.
The above opinions shall be rendered to the Initial Purchasers
at the request of the Issuers and the Guarantor and shall so state
therein.
(e) The Initial Purchasers shall have received on the Closing
Date an opinion of Xxxxxxxx & Xxxxxxxx, counsel for the Initial
Purchasers, dated the Closing Date, in form and substance satisfactory
to you.
(f) The Initial Purchasers shall have received on each of the
date hereof and the Closing Date a letter, dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Initial Purchasers, from Deloitte & Touche LLP, independent public
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Final
Circular including any amendment or supplement thereto; provided that
the letter delivered on the Closing Date shall use a "cut-off date" not
earlier than the date hereof.
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(g) The Securities shall have been designated for trading on
PORTAL and the Securities shall be eligible for clearance and
settlement through The Depository Trust Company.
(h) The Indenture including the Guarantee in a form and
substance reasonably satisfactory to the Initial Purchasers, shall have
been duly executed and delivered by the Company, Centennial Cellular,
the Guarantor and the Trustee.
(i) The Registration Rights Agreement shall have been executed
and delivered by all the parties thereto.
(j) The Amended and Restated Credit Agreement, dated as of
February 29, 2000, as amended (the "CREDIT AGREEMENT"), among
Centennial Cellular and the Guarantor, as borrowers; the Company and
certain subsidiaries of the Company, as guarantors; and X.X. Xxxxxx
Chase Bank and certain other parties thereto, as lenders, shall have
been amended pursuant to the Fourth Amendment to the Credit Agreement
substantially in the form as attached hereto as Exhibit E (the
"AMENDMENT").
(k) The Initial Purchasers shall have received such other
documents and certificates as are reasonably requested by you or your
counsel.
6. Covenants of the Company and the Guarantor. In further
consideration of the agreements of the Initial Purchasers contained in this
Agreement, the Issuers and the Guarantor covenant with each Initial Purchaser as
follows:
(a) To furnish to you in New York City, without charge, prior
to 10:00 a.m. New York City time on the business day next succeeding
the date of this Agreement and during the period mentioned in Section
6(c), as many copies of the Final Circular, any documents incorporated
by reference therein and any supplements and amendments thereto as you
may reasonably request.
(b) Before amending or supplementing either Circular, to
furnish to you a copy of each such proposed amendment or supplement and
not to use any such proposed amendment or supplement without your
consent which shall not be unreasonably withheld or delayed.
(c) If, during such period after the date hereof and prior to
the date on which all of the Securities shall have been sold by the
Initial Purchasers, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Final
Circular in order to make the statements therein, in the light of the
circumstances when the Final Circular is delivered to a purchaser, not
misleading, or if, in the reasonable opinion of counsel for the Initial
Purchasers, it is necessary to amend or supplement the Final Circular
to comply with applicable law, forthwith to prepare and furnish, at
their own expense, to the Initial Purchasers, either amendments or
supplements to the Final Circular so that the statements in the Final
Circular as so amended or supplemented will not, in the light of the
circumstances when the Final Circular is delivered to a purchaser, be
misleading or so that the Final Circular, as amended or supplemented,
will comply with applicable law.
11
(d) To endeavor to qualify the Securities and the Guarantee
for offer and sale under the securities or Blue Sky laws of such
jurisdictions as you shall reasonably request provided that the
Company, Centennial Cellular, the Guarantor and any of their
subsidiaries shall not be required to qualify as a foreign corporation
or subject itself to taxation in excess of a nominal dollar amount in
any such jurisdiction in which it is not now subject.
(e) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all reasonable expenses incident to the performance of
its obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Issuers' and the Guarantor's counsel
and the Issuers' and the Guarantor's accountants in connection with the
issuance and sale of the Securities and all other fees or expenses in
connection with the preparation of each Circular and all amendments and
supplements thereto, including all printing costs associated therewith,
and the delivering of copies thereof to the Initial Purchasers, in the
quantities herein above specified, (ii) all costs and expenses related
to the transfer and delivery of the Securities to the Initial
Purchasers, including any transfer or other taxes payable thereon,
(iii) the cost of printing or producing any Blue Sky or legal
investment memorandum in connection with the offer and sale of the
Securities under state securities laws and all expenses in connection
with the qualification of the Securities for offer and sale under state
securities laws as provided in Section 6(d) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the
Initial Purchasers in connection with such qualification and in
connection with the Blue Sky or legal investment memorandum, (iv) any
fees charged by rating agencies for the rating of the Securities, (v)
the fees and expenses, if any, incurred in connection with the
admission of the Securities for trading in PORTAL or any appropriate
market system, (vi) the costs and charges of the Trustee and any
transfer agent, registrar or depositary, (vii) the cost of the
preparation, issuance and delivery of the Securities and the Guarantee,
(viii) the costs and expenses of the Issuers relating to investor
presentations on any "road show" undertaken in connection with the
marketing of the offering of the Securities, including, without
limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of
the Issuers, travel and lodging expenses of the representatives and
officers of the Issuers and any such consultants, and (ix) all other
costs and expenses incident to the performance of the obligations of
the Issuers and the Guarantor hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except
as provided in this Section, Section 8, and the last paragraph of
Section 10, the Initial Purchasers will pay all of their costs and
expenses, including fees and disbursements of their counsel, transfer
taxes payable on resale of any of the Securities by them and any
advertising expenses connected with any offers they may make.
(f) None of the Company, Centennial Cellular, the Guarantor or
any of their Affiliates will sell, offer for sale or solicit offers to
buy or otherwise negotiate in respect of any security (as defined in
the Securities Act) which could be integrated with the sale of the
Securities and the Guarantee in a manner which would require the
registration under the Securities Act of the Securities or the
Guarantee.
12
(g) Not to solicit any offer to buy or offer or sell the
Securities or the Guarantee by means of any form of general
solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities
Act.
(h) While any of the Securities and the Guarantee remain
"restricted securities" within the meaning of the Securities Act, to
make available, upon request, to any seller of the Securities the
information specified in Rule 144A(d)(4) under the Securities Act,
unless the Company or Centennial Cellular is then subject to Section 13
or 15(d) of the Exchange Act.
(i) To use their reasonable best efforts to permit the
Securities to be designated PORTAL securities in accordance with the
rules and regulations adopted by the NASD.
(j) None of the Company, Centennial Cellular, their Affiliates
or any person acting on its or their behalf (other than the Initial
Purchasers) will engage in any directed selling efforts (as that term
is defined in Regulation S) with respect to the Securities or the
Guarantee, and the Issuers, their Affiliates and each person acting on
its or their behalf (other than the Initial Purchasers) will comply
with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the
Issuers and the Guarantor will not resell any of the Securities which
constitute "restricted securities" under Rule 144 that have been
reacquired by any of them.
(l) The Issuers will cooperate with the Initial Purchasers and
use their reasonable best efforts to permit the Securities and the
Guarantee to be eligible for clearance and settlement through The
Depository Trust Company.
(m) The Issuers will apply the net proceeds received by it
from the sale of Securities and the Guarantee in the manner specified
in the Final Circular under the caption "Use of Proceeds".
(n) The Issuers and the Guarantor will use their reasonable
best efforts to enter into the Amendment on or prior to the Closing
Date.
7. Offering of Securities; Restrictions on Transfer. (a) Each
Initial Purchaser, severally and not jointly, represents and warrants that such
Initial Purchaser is a qualified institutional buyer as defined in Rule 144A
under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not
jointly, agrees with the Issuers and the Guarantor that (i) it has not and will
not solicit offers for, or offer or sell, such Securities or the Guarantee by
any form of general solicitation or general advertising (as those terms are used
in Regulation D under the Securities Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act and (ii) it
has not and will not solicit offers for such Securities only from, and will
offer such Securities only to, persons that it reasonably believes to be (A) in
the case of offers inside the United States, QIBs and (B) in the case of offers
outside the United States, to persons other than U.S. persons ("FOREIGN
PURCHASERS," which term shall include
13
dealers or other professional fiduciaries in the United States acting on a
discretionary basis for foreign beneficial owners (other than an estate or
trust)) in reliance upon Regulation S under the Securities Act that, in each
case, in purchasing such Securities are deemed to have represented and agreed as
provided in the Final Circular under the caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly,
represents, warrants, and agrees with respect to offers and sales
outside the United States that:
(i) such Initial Purchaser understands that no action has been
or will be taken in any jurisdiction by the Company, Centennial
Cellular or the Guarantor that would permit a public offering of the
Securities and the Guarantee, or possession or distribution of either
Circular or any other offering or publicity material relating to the
Securities and the Guarantee, in any country or jurisdiction where
action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable
laws and regulations in each jurisdiction in which it acquires, offers,
sells or delivers Securities and the Guarantee or has in its possession
or distributes either Circular or any such other material, in all cases
at its own expense;
(iii) the Securities and the Guarantee have not been
registered under the Securities Act and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S.
persons except in accordance with Rule 144A or Regulation S under the
Securities Act or pursuant to another exemption from the registration
requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and the
Guarantee and will offer and sell the Securities (A) as part of their
distribution at any time and (B) otherwise until 40 days after the
later of the commencement of the offering and the Closing Date, only in
accordance with Rule 903 of Regulation S or as otherwise permitted in
Section 7(a); accordingly, neither such Initial Purchaser, its
Affiliates nor any persons acting on its or their behalf have engaged
or will engage in any directed selling efforts (within the meaning of
Regulation S) with respect to the Securities and the Guarantee, and any
such Initial Purchaser, its Affiliates and any such persons have
complied and will comply with the offering restrictions requirement of
Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and,
prior to the date six months after the Closing Date, will not offer or
sell any Securities or the Guarantee to persons in the United Kingdom
except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in circumstances
which have not resulted and will not result in an offer to the public
in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (B) has complied and will comply with all
applicable provisions of the Financial Services and Markets Act 2000
(the "FSMA") with respect of anything done by it in relation to the
Securities in, from or otherwise involving the United Kingdom, and (C)
will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
section 21 of the FSMA) received by it in connection with the issue or
sale of
14
the Securities in circumstances in which section 21(1) of the FSMA does
not apply to the Company;
(vi) such Initial Purchaser understands that the Securities
and the Guarantee have not been and will not be registered under the
Securities and Exchange Law of Japan, and represents that it has not
offered or sold, and agrees not to offer or sell, directly or
indirectly, any Securities or the Guarantee in Japan or for the account
of any resident thereof except pursuant to any exemption from the
registration requirements of the Securities and Exchange Law of Japan
and otherwise in compliance with applicable provisions of Japanese law;
and
(vii) such Initial Purchaser agrees that, at or prior to
confirmation of sales of the Securities, it will have sent to each
distributor, dealer or person receiving a selling concession, fee or
other remuneration that purchases Securities from it during the
restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may not be
offered and sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any time
or (ii) otherwise until 40 days after the later of the commencement of
the offering and the closing date, except in either case in accordance
with Regulation S (or Rule 144A if available) under the Securities Act.
Terms used above have the meaning given to them by Regulation S."
Terms used in this Section 7(b) have the meanings given to
them by Regulation S.
8. Indemnity and Contribution. (a) The Company, Centennial
Cellular and the Guarantor agree, jointly and severally, to indemnify and hold
harmless each Initial Purchaser and each person, if any, who controls any
Initial Purchaser within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act, and each affiliate of any Initial Purchaser
within the meaning of Rule 405 under the Securities Act from and against any and
all losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in either Circular (as
amended or supplemented if the Issuers and the Guarantor shall have furnished
any amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact necessary to make the statements
therein in the light of the circumstances under which they were made not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Initial Purchaser furnished to
the Issuers in writing by such Initial Purchaser through you expressly for use
therein; provided however, that the foregoing indemnity agreement with respect
to any Preliminary Circular shall not inure to the benefit of any Initial
Purchaser from whom the person asserting any such losses, claims, damages or
liabilities purchased the Securities, or any person controlling such Initial
Purchaser, if it is established that a copy of the Final Circular (as then
amended or supplemented if the Issuers and the Guarantor shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Initial Purchaser to such person, at or prior to the written
15
confirmation of the sale of the Securities to such person, and if the Final
Circular (as so amended or supplemented) would have cured the defect giving rise
to such losses, claims, damages or liabilities, unless such failure is the
result of noncompliance by the Issuers and the Guarantor with Section 6(a)
hereof.
(b) Each Initial Purchaser agrees, severally and not jointly,
to indemnify and hold harmless the Issuers, the Guarantor, their directors,
their officers and each person, if any, who controls the Company or Centennial
Cellular within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Issuers and the Guarantor to such Initial Purchaser, but only with
reference to information relating to such Initial Purchaser furnished to the
Issuers in writing by such Initial Purchaser through you expressly for use in
either Circular or any amendments or supplements thereto, where such information
is actually included in either Circular and or any amendment or supplement
thereto. Additionally, each Initial Purchaser acknowledges that the indemnity
contained in (a) above shall not operate to indemnify the Initial Purchasers
regarding the matters described in the prior sentence.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees and expenses of more
than one separate firm of legal counsel (in addition to any local counsel) for
all such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by
Credit Suisse First Boston LLC, in the case of parties indemnified pursuant to
Section 8(a), and by the Issuers and the Guarantor, in the case of parties
indemnified pursuant to Section 8(b). The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and
16
(ii) such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. 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 or could have been a party and indemnity could
have 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.
(d) To the extent the indemnification provided for in Section
8(a) or 8(b) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuers and the Guarantor on the one hand and the
Initial Purchasers on the other hand from the offering of the Securities or (ii)
if the allocation provided by clause 8(d)(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 8(d)(i) above but also the relative
fault of the Issuers and the Guarantor on the one hand and of the Initial
Purchasers on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Issuers
and the Guarantor on the one hand and the Initial Purchasers on the other hand
in connection with the offering of the Securities shall be deemed to be in the
same respective proportions as the net proceeds from the offering of the
Securities (before deducting expenses) received by the Issuers and the Guarantor
and the total discounts and commissions received by the Initial Purchasers in
respect thereof, bear to the aggregate offering price of the Securities. The
relative fault of the Issuers and the Guarantor on the one hand and of the
Initial Purchasers 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 or alleged omission to state a material fact relates to
information supplied by the Issuers and the Guarantor or by the Initial
Purchasers and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Initial
Purchasers' respective obligations to contribute pursuant to this Section 8 are
several in proportion to the respective principal amount of Securities they have
purchased hereunder, and not joint.
(e) The Issuers, the Guarantor and the Initial Purchasers
agree that it would not be just or equitable if contribution pursuant to this
Section 8 were determined by pro rata allocation (even if the Initial Purchasers
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to in Section 8(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in Section
8(d) 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.
Notwithstanding the provisions of this Section 8, no Initial Purchaser shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities resold by it in the initial placement of such
Securities were offered to investors exceeds the amount of any damages that such
Initial Purchaser has otherwise been required to pay by reason
17
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 remedies provided
for in this Section 8 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in
this Section 8 and the representations, warranties and other statements of the
Issuers and the Guarantor contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Initial Purchaser or any
person controlling any Initial Purchaser or any affiliate of any Initial
Purchaser or by or on behalf of the Company, Centennial Cellular or the
Guarantor, their officers or directors or any person controlling the Company,
Centennial Cellular or the Guarantor and (iii) acceptance of and payment for any
of the Securities.
9. Termination. This Agreement shall be subject to
termination by notice given by you to the Issuers and the Guarantor, if
subsequent to the execution and delivery of this Agreement, there shall have
occurred (i) any change, or any development or event involving a prospective
change, in the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as one enterprise which,
in the judgment of Credit Suisse First Boston LLC is material and adverse and
makes it impractical or inadvisable to proceed with the completion of the
offering or the sale of and payment for the Securities and the Guarantee; (ii)
any downgrading in the rating of any debt securities of the Issuers by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Securities Act), or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities of the Issuers (other than an announcement with positive implications
of a possible upgrading, and no implication of a possible downgrading, of such
rating) or any announcement that the Company or Centennial Cellular has been
placed on negative outlook; (iii) any change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange controls
as would, in the judgment of Credit Suisse First Boston LLC, be likely to
prejudice materially the success of the proposed issue, sale or distribution of
the Securities and the Guarantee, whether in the primary market or in respect of
dealings in the secondary market; (iv) any material suspension or material
limitation of trading in securities generally on the New York Stock Exchange or
any setting of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Issuers on any exchange or in the
over-the-counter market; (v) any banking moratorium declared by U.S. Federal or
New York authorities; (vi) any major disruption of settlements of securities or
clearance services in the United States or (vii) any attack on, outbreak or
escalation of hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international calamity
or emergency if, in the judgment of Credit Suisse First Boston LLC, the effect
of any such attack, outbreak, escalation, act, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with completion of the
offering or sale of and payment for the Securities and the Guarantee.
18
10. Effectiveness; Defaulting Initial Purchasers. This
Agreement shall become effective upon the execution and delivery hereof by the
parties hereto.
If, on the Closing Date, any one or more of the Initial
Purchasers shall fail or refuse to purchase Securities that it or they have
agreed to purchase hereunder on such date, and the aggregate principal amount of
Securities which such defaulting Initial Purchaser or Initial Purchasers agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
principal amount of Securities to be purchased on such date, the other Initial
Purchasers shall be obligated severally in the proportions that the principal
amount of Securities set forth opposite their respective names in Schedule I
bears to the aggregate principal amount of Securities set forth opposite the
names of all such non-defaulting Initial Purchasers, or in such other
proportions as you may specify, to purchase the Securities which such defaulting
Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase
on such date; provided that in no event shall the principal amount of Securities
that any Initial Purchaser has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such principal amount of Securities without the written consent of such Initial
Purchaser. If, on the Closing Date any Initial Purchaser or Initial Purchasers
shall fail or refuse to purchase Securities which it or they have agreed to
purchase hereunder on such date and the aggregate principal amount of Securities
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Securities to be purchased on such date, and
arrangements satisfactory to you and the Issuers for the purchase of such
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Initial Purchaser
or of the Issuers and the Guarantor. In any such case either you or the Issuers
shall have the right to postpone the Closing Date, but in no event for longer
than seven days, in order that the required changes, if any, in the Final
Circular or in any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Initial Purchaser
from liability in respect of any default of such Initial Purchaser under this
Agreement.
If this Agreement shall be terminated by the Initial
Purchasers, or any of them, because of any failure or refusal on the part of the
Company, Centennial Cellular or the Guarantor to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the
Company, Centennial Cellular or the Guarantor shall be unable to perform its
obligations under this Agreement, the Issuers will reimburse the Initial
Purchasers or such Initial Purchasers as have so terminated this Agreement with
respect to themselves, severally, for all reasonable fees and disbursements of
their counsel in connection with this Agreement or the offering contemplated
hereunder, provided that the Issuers shall have no obligation to reimburse any
Initial Purchaser that has breached its obligations hereunder for any such
out-of-pocket expenses.
19
11. Notices. All notices and other communications under this
Agreement shall be in writing and mailed, delivered or sent by facsimile
transmission to: if sent to the Initial Purchasers, c/o Credit Suisse First
Boston LLC, Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention:
Transactions Advisory Group and if sent to the Company, Centennial Cellular or
the Guarantor, to Centennial Communications Corp., Attention: Xxxx X. Xxxx,
facsimile number (000) 000-0000.
12. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
14. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
20
Very truly yours,
CENTENNIAL COMMUNICATIONS CORP.
By /s/ XXXX XXXX
-----------------------------------------------
Name: Xxxx Xxxx
Title: Senior Vice President, General Counsel
CENTENNIAL CELLULAR OPERATING CO. LLC
By: CENTENNIAL COMMUNICATIONS CORP., as its
sole member
By /s/ XXXX XXXX
-----------------------------------------------
Name: Xxxx Xxxx
Title: Senior Vice President, General Counsel
CENTENNIAL PUERTO RICO OPERATIONS CORP.
By /s/ XXXX XXXX
-----------------------------------------------
Name: Xxxx Xxxx
Title: Senior Vice President, General Counsel
21
Accepted as of the date hereof
CREDIT SUISSE FIRST BOSTON LLC
Acting on behalf of itself and
the several Initial Purchasers named in
Schedule I hereto.
By: CREDIT SUISSE FIRST BOSTON LLC
By /s/ X. XXXX
-----------------------------------------------
Name: X. Xxxx
Title: Managing Director
22
