EXHIBIT 4.9
$325,000,000
CENTENNIAL COMMUNICATIONS CORP.
CENTENNIAL CELLULAR OPERATING CO. LLC
CENTENNIAL PUERTO RICO OPERATIONS CORP.
8-1/8% SENIOR NOTES DUE 2014
PURCHASE AGREEMENT
January 16, 2004
January 16, 2004
▇▇▇▇▇▇ Brothers Inc.
Credit Suisse First Boston LLC
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
c/▇ ▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
- and -
c/o Credit Suisse First Boston LLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs and Mesdames:
Centennial Communications Corp., a Delaware corporation (the
"COMPANY"), 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 Centennial Puerto Rico Operations
Corp., a wholly-owned subsidiary of the Company and a Delaware corporation
("CENTENNIAL PR", and together with the Company and Centennial Cellular, the
"ISSUERS"), propose to issue and sell (the "OFFERING") to the several purchasers
named in Schedule I hereto (the "INITIAL PURCHASERS") $325,000,000 principal
amount of its 8-1/8% Senior Notes due 2014 (the "SECURITIES") to be issued
pursuant to the provisions of an Indenture dated as of February 9, 2004 (the
"INDENTURE") among the Issuers and U.S. Bank National Association, trustee (the
"TRUSTEE").
The Securities 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 February 9, 2004 and substantially in the form attached hereto as
Exhibit A, among the Issuers and the Initial Purchasers (the "REGISTRATION
RIGHTS AGREEMENT").
Concurrently with this Offering, and as a condition of the
consummation of this Offering, Centennial Cellular and Centennial PR, as
borrowers, and the Company and its direct and indirect domestic subsidiaries, as
guarantors, will enter into a senior secured facility with Credit Suisse First
Boston LLC (acting through one or more of its affiliates), as administrative
agent and lender, and certain other lenders, providing for approximately
$150,000,000 in
revolving credit borrowings and approximately $600,000,000 in term borrowings,
and, under certain circumstances, approximately an additional $250,000,000
through one or more additional term loan or revolving credit borrowings (the
"NEW CREDIT FACILITY"). Term loan borrowings under the New Credit Facility along
with proceeds of this Offering will be immediately used to repay all borrowings
under the Amended and Restated Credit Agreement, dated as of February 29, 2000,
as amended, among Centennial Cellular and Centennial PR, as borrowers, the
Company and certain subsidiaries of the Company, as guarantors, and Banc of
America, N.A., as Administrative Agent, and lenders thereto (the "EXISTING
CREDIT FACILITY"), all amounts outstanding under the Company's unsecured
subordinated notes due 2009 (the "MEZZANINE DEBT") and, following the completion
of the Offering, to redeem $70,000,000 of principal amount of the senior
subordinated notes due 2008 issued by the Company and Centennial Cellular.
In connection with the sale of the Securities, the Issuers
have prepared a preliminary offering memorandum (the "PRELIMINARY MEMORANDUM")
and will prepare a final offering memorandum (the "FINAL MEMORANDUM" and, with
the Preliminary Memorandum, each a "MEMORANDUM") including a description of the
terms of the Securities, the terms of the offering and a description of the
Company. As used herein, the term "Memorandum" shall include in each case any
documents that may be incorporated by reference therein, if any. The terms
"supplement", "amendment" and "amend" as used herein with respect to a
Memorandum shall include all documents deemed to be incorporated by reference in
the Preliminary Memorandum or Final Memorandum that are filed subsequent to the
date of such Memorandum 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 Centennial PR, 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
Memorandum 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 Memorandum does not contain and the
Final Memorandum, 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 Memorandum 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 Centennial PR 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 Centennial PR have the power and
authority to own their property and to conduct their business as
described in each Memorandum 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 and their subsidiaries, taken as a whole.
(c) Each direct or indirect subsidiary of the Company,
Centennial Cellular or Centennial PR having an aggregate net book value
of assets in excess of 10% of the total assets of the Issuers and their
subsidiaries on a consolidated basis (each, a "SIGNIFICANT SUBSIDIARY";
for purposes of this Agreement, Centennial Cellular and Centennial PR
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 Memorandum
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 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 Memorandum, 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 Centennial PR, 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. There are no other Significant Subsidiaries of the Company
other than those listed on Schedule II.
(d) This Agreement has been duly authorized, executed and
delivered by each of the Company, Centennial Cellular and Centennial
PR.
(e) The Company's authorized equity capitalization is as
set forth in the Final Memorandum; 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, Centennial Cellular and Centennial PR, 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, Centennial Cellular and Centennial PR,
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 has been duly authorized by each of the
Company, Centennial Cellular and Centennial PR, and, when executed and
delivered by each of the Company, Centennial Cellular and Centennial
PR, will be a valid and binding agreement of each of the Company,
Centennial Cellular and Centennial PR, 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 Centennial
PR, and, when executed and delivered by each of the Company, Centennial
Cellular and Centennial PR, will be a valid and binding agreement of
the Company, Centennial Cellular and Centennial PR, 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 Centennial PR of, and the performance
by each of the Company, Centennial Cellular and Centennial PR of their
respective obligations under, this Agreement, the Indenture, the
Registration Rights Agreement and the Securities and the issuance, sale
and delivery of the Securities 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
Centennial PR or any of their subsidiaries, or contravene any agreement
or other instrument binding upon the Company, Centennial Cellular,
Centennial PR or any of their subsidiaries that is material to the
Issuers 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, Centennial PR 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 of their obligations under this
Agreement, the Indenture, the Registration Rights Agreement, the
Securities or the issuance, sale and delivery of the Securities, 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'
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 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
Memorandum and the Final Memorandum 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 Memorandum and
the Final Memorandum (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 Memorandum 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
Memorandum and the Final Memorandum (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 Memorandum
and the Final Memorandum.
(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 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 and their subsidiaries, taken
as a whole from that set forth in the Final Memorandum.
(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, Centennial PR or any of their
subsidiaries is a party or to which any of the properties of the
Company, Centennial Cellular, Centennial PR or any of their
subsidiaries is subject other than proceedings accurately described in
all material respects in each Memorandum and other than proceedings
that would not reasonably be expected to have a material adverse effect
on the Issuers and their subsidiaries, taken as a whole, or on the
power or ability of the Issuers and Centennial PR to perform their
respective obligations under this Agreement,
the Indenture, the Registration Rights Agreement and the Securities 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 Memorandum under the caption "Use of Proceeds".
(o) Each of the Company, Centennial Cellular, Centennial
PR 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 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
and their subsidiaries, taken as a whole.
(q) None of the Company, Centennial Cellular, or
Centennial PR 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 Memorandum, will be an "investment company" as such term
is defined in the Investment Company Act of 1940, as amended.
(r) The Issuers 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
Memorandum, 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, Centennial PR and their Significant
Subsidiaries taken as a whole; and none of the Company, Centennial
Cellular, Centennial PR 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, Centennial PR 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, Centennial PR 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, Centennial PR
and their Significant subsidiaries, taken as a whole, except as
described in the Final Memorandum.
(s) None of the Company, Centennial Cellular, Centennial
PR or any affiliate (as defined in Rule 501(b) of Regulation D under
the Securities Act, an "AFFILIATE") of the Company, Centennial Cellular
or Centennial PR 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 in a manner that
would require the registration under the Securities Act of the
Securities or (ii) offered, solicited offers to buy or sell the
Securities 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, Centennial
PR, 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 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 to the Initial Purchasers in the
manner contemplated by this Agreement to register the Securities under
the Securities Act or to qualify the Indenture under the Trust
Indenture Act of 1939, as amended.
(v) The Securities satisfy the requirements set forth in
Rule 144A(d)(3) under the Securities Act.
(w) The Indenture and the Securities will conform in all
material respects to the description thereof contained in the Final
Memorandum under the heading "Description of the Senior Notes".
(x) The Issuers 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 reasonably believe are prudent and customary in the businesses
in which they are engaged; none of the Company, Centennial Cellular,
Centennial PR 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 and their subsidiaries, taken as a whole; and none of the
Company, Centennial Cellular, Centennial PR 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 and their subsidiaries, taken as
a whole, except as described in the Final Memorandum.
(y) The Issuers 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, Centennial PR or their Significant Subsidiaries
exists or, to the knowledge of the Issuers, is imminent; none of the
Company, Centennial Cellular, Centennial PR 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,
Centennial PR'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 and their subsidiaries, taken as a whole, except as described
in the Final Memorandum.
(aa) The Issuers 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, 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, Centennial PR 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 and their
subsidiaries, taken as a whole; all of the leases and subleases
material to the business of the Issuers and their subsidiaries,
considered as one enterprise, and under which the Company, Centennial
Cellular, Centennial PR or any of their subsidiaries hold properties,
are in full force and effect, and none of the Company, Centennial
Cellular, Centennial PR 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, Centennial PR or any
of their subsidiaries under any of these leases or subleases, or
affecting or questioning the rights of the Company, Centennial
Cellular, Centennial PR 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 and their
subsidiaries, taken as a whole.
(bb) All material United States federal income tax returns
of the Issuers 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 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 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 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 and their subsidiaries in respect
of all federal, state, local and foreign tax liabilities of the Issuers
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 and their subsidiaries, taken as
a whole.
(cc) Except as disclosed in the Final Memorandum, there
are no contracts, agreements or understandings between the Issuers with
any person that would give rise to a claim against the Issuer or the
Initial Purchasers for a brokerage commission, finder's fee or other
like payment in connection with this offering.
(dd) There are no persons or entities with registration or
other similar rights to require the Issuers 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.
(ee) Since the date as of which information is given in
the Final Memorandum through the Closing Date (as defined herein), and
except as may otherwise be disclosed in the Final Memorandum, the
Issuers have not (i) issued or granted any securities other than the
Securities or shares issued pursuant to existing employee benefit
plans, qualified stock option plans or other employee compensation
plans or pursuant to outstanding options, rights or warrants, (ii)
incurred any material liability or obligation, direct or contingent,
other than liabilities and obligations which were incurred in the
ordinary course of business, (iii) entered into any material
transaction which would be required to be disclosed in the Final
Memorandum or (iv) declared or paid any dividend on its capital stock.
Each certificate signed by any officer of an Issuer and
delivered to the Initial Purchasers or their counsel shall be deemed to
be a representation and warranty by such Issuer 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 98% 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 ▇▇▇▇▇▇ Brothers Inc. and Credit Suisse First Boston LLC (the
"REPRESENTATIVES") 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 Centennial PR or warrants to purchase debt of
the Company, Centennial Cellular or Centennial PR substantially similar to the
Securities (other than the sale of the Securities under this Agreement.)
3. Terms of Offering. You have advised the Issuers 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
Memorandum, 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 at the offices of Shearman &
Sterling LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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 February 9, 2004, 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.
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, dated the Closing Date and
signed by an executive officer of each of the Issuers, to the effect
that the representations and warranties of the Issuers contained in
this Agreement are true and correct as of the Closing Date and the
Issuers 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 ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ L.L.P., outside
counsel for the Issuers, dated the Closing Date, substantially to the
effect set forth in Exhibit B and (2) an opinion from ▇▇▇▇ ▇. ▇▇▇▇,
Senior Vice President and General Counsel for the Issuers, 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 ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P., United
States and Puerto Rican regulatory counsel for the Issuers, 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, in-house Dominican Republic
counsel for the Issuers, 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 shall so state therein.
(e) The Initial Purchasers shall have received on the
Closing Date an opinion of ▇▇▇▇▇▇▇▇ & Sterling LLP, 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 Memorandum 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.
(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, in a form and substance reasonably
satisfactory to the Initial Purchasers, shall have been duly executed
and delivered by the Company, Centennial Cellular, Centennial PR and
the Trustee.
(i) Concurrently with the Offering, the New Credit
Facility shall have been entered into, Centennial Cellular and
Centennial PR shall have received the proceeds from the term loans
borrowings thereunder, all indebtedness outstanding under the Existing
Credit Facility shall have been repaid in full, the Existing Credit
Facility shall have been terminated and all amounts outstanding under
the Mezzanine Debt shall have been repaid in full.
(j) The Initial Purchasers shall have received on the
Closing Date a certificate from the Issuers, dated the Closing Date,
substantially to the effect set forth in Exhibit F, and signed by an
executive officer of each Issuer.
(k) The Registration Rights Agreement shall have been
executed and delivered by all the parties thereto.
(l) The Initial Purchasers shall have received such other
documents and certificates as are reasonably requested by you or your
counsel.
6. Covenants of the Issuers. In further consideration of
the agreements of the Initial Purchasers contained in this Agreement, the
Issuers 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 Memorandum, any documents
incorporated by reference therein and any supplements and amendments
thereto as you may reasonably request.
(b) Before amending or supplementing either Memorandum,
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
Memorandum in order to make the statements therein, in the light of the
circumstances when the Final Memorandum 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
Memorandum 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 Memorandum so that the
statements in the Final Memorandum as so amended or supplemented will
not, in the light of the circumstances when the Final Memorandum is
delivered to a purchaser, be misleading or so that the Final
Memorandum, as amended or supplemented, will comply with applicable
law.
(d) To endeavor to qualify the Securities 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, Centennial PR 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' counsel and the Issuers'
accountants in connection with the issuance and sale of the Securities
and all other fees or expenses in connection with the preparation of
each Memorandum 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,
(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 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, Centennial
PR 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 in a manner which would require the registration
under the Securities Act of the Securities.
(g) Not to solicit any offer to buy or offer or sell the
Securities 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 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, Centennial Cellular or Centennial PR 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, Centennial
PR, 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, 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 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 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 in the manner specified in the Final
Memorandum under the caption "Use of Proceeds".
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 that (i) it has not and will not solicit
offers for, or offer or sell, such Securities 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 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 Memorandum 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 Centennial PR that would permit a public offering of the
Securities, or possession or distribution of either Memorandum or any
other offering or publicity material relating to the Securities, 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 or has in its possession
or distributes either Memorandum or any such other material, in all
cases at its own expense;
(iii) the Securities 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
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 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 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 the
Securities in circumstances in which section 21(1) of the FSMA does not
apply to the Company, Centennial Cellular or Centennial PR;
(vi) such Initial Purchaser understands that the
Securities 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 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 Centennial PR 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
Memorandum (as amended or supplemented if the Issuers 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 losses, claims, damages or liabilities shall not inure to the benefit of any
Initial Purchaser (or any person controlling any Initial Purchaser) with respect
to any losses, claims, damages or liabilities arising out of or based upon (x)
any untrue statement or alleged untrue statement of any material fact in the
Preliminary Memorandum or (y) the omission or alleged omission to state in the
Preliminary Memorandum a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, if: (1) the Company furnished sufficient copies of the Final
Memorandum on a timely basis to permit delivery of the Final Memorandum to all
persons purchasing Securities from the Initial Purchasers in the initial resale
of such Securities (such persons being the "Initial Resale Purchasers") at or
prior to the written confirmation of the sale of the Securities to such person;
(2) the Initial Resale Purchaser asserting such losses, claims, damages or
liabilities purchased Securities in the initial resale from the Initial
Purchasers and a copy of the Final Memorandum was not sent or given by or on
behalf of such Initial Purchaser to such Initial Resale Purchaser; and (3) the
Final Memorandum would have cured the defect giving rise to such losses, claims,
damages or liabilities. The term "Final Memorandum" as used for purposes of
Section 8(a) herein shall mean the Final Memorandum, as amended or supplemented
if the Issuers shall have furnished any amendments or supplements thereto.
(b) Each Initial Purchaser agrees, severally and not
jointly, to indemnify and hold harmless the Issuers, their directors, their
officers and each person, if any, who controls any of the Issuers 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 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 Memorandum or any amendments or supplements
thereto, where such information is actually included in either Memorandum 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 the
Representatives, in the case of parties indemnified pursuant to Section 8(a),
and by the Issuers, 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 (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 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
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 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 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 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 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 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 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 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 Centennial PR, their
officers or directors or any person
controlling the Company, Centennial Cellular or Centennial PR and (iii)
acceptance of and payment for any of the Securities.
(g) The only information furnished by the Initial
Purchasers to the Issuers for purposes of Section 8(a) and (b) hereof, to the
extent such statements relate to the Initial Purchasers, are (i) the names of
the Initial Purchasers set forth on (A) the front and back cover pages of the
Final Memorandum and (B) in the section of the Final Memorandum captioned "Plan
of Distribution"; (ii) statements set forth in the fifth full paragraph
appearing under the caption "Plan of Distribution" on page 152 of the Final
Memorandum, relating to the price at which the Initial Purchasers will offer the
Senior Notes; (iii) the first sentence of the sixth paragraph under the caption
"Plan of Distribution" on page 152 of the Final Memorandum, relating to the
Initial Purchaser's intention to sell the Senior Notes in reliance on Rule 144A
and Regulation S under the Securities Act; (iv) the sixth sentence of the tenth
paragraph under the caption "Plan of Distribution" on page 153 of the Final
Memorandum, relating to market-making activities of the Initial Purchasers; and
(v) the first three sentences of the twelfth paragraph under the caption "Plan
of Distribution" on page 153 of the Final Memorandum, relating to
over-allotment, stabilizing and covering transactions and penalty bids.
9. Termination. This Agreement shall be subject to
termination by notice given by you to the Issuers, 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 ▇▇▇▇▇▇ Brothers Inc. and 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; (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, Centennial Cellular or Centennial
PR has been placed on negative outlook which, in the judgment of the Underwriter
makes it impracticable or inadvisable to proceed with the offering, sale or
delivery of the Notes on the terms and in the manner contemplated in the
Memorandum; (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 the Representatives, be likely to prejudice materially the
success of the proposed issue, sale or distribution of the Securities, 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
▇▇▇▇▇▇ Brothers Inc. and Credit Suisse First Boston LLC, the effect of any such
attack, outbreak, escalation, act, declaration, calamity or emergency makes it
impracticable or inadvisable to proceed with
completion of the offering or sale of and payment for the Securities in the
manner contemplated by the Final Memorandum.
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. 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 Memorandum 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 Centennial PR 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 Centennial PR 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.
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/▇ ▇▇▇▇▇▇ Brothers Inc.,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Global Finance and c/o
Credit Suisse First Boston LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
New York, New York 10010-3629, Attention: Transactions Advisory Group and if
sent to the Company, Centennial Cellular or Centennial PR, to Centennial
Communications Corp., Attention: ▇▇▇▇ ▇. ▇▇▇▇, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇.
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.
Very truly yours,
CENTENNIAL COMMUNICATIONS CORP.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President, General Counsel
CENTENNIAL CELLULAR OPERATING CO. LLC
By: CENTENNIAL COMMUNICATIONS CORP., as its
sole member
By /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President, General Counsel
CENTENNIAL PUERTO RICO OPERATIONS CORP.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President, General Counsel
Accepted as of the date hereof:
▇▇▇▇▇▇ BROTHERS INC.
CREDIT SUISSE FIRST BOSTON LLC
Acting on behalf of themselves and
the several Initial Purchasers named in
Schedule I hereto.
By: ▇▇▇▇▇▇ BROTHERS INC.
By: /s/ A. SAKE
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Name: ▇. ▇▇▇▇
Title: Managing Partner
By: CREDIT SUISSE FIRST BOSTON LLC
By: /s/ ▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇
Title: Managing Director