Exhibit 1.1
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IWO Holdings, Inc.
Independent Wireless
One
Corporation
$160,000,000
160,000 Units Consisting of
14% Senior Notes due 2011
and Warrants to Purchase 2,000,040 Shares of Class C Common Stock
Purchase Agreement
JANUARY 26, 2001
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
(an affiliate of Credit Suisse First Boston Corporation)
CHASE SECURITIES INC.
BNP PARIBAS SECURITIES CORP.
UBS WARBURG LLC
$160,000,000
IWO HOLDINGS, INC.
INDEPENDENT WIRELESS ONE CORPORATION
160,000 Units Consisting of
14% Senior Notes due 2011
and Warrants to Purchase 2,000,040 Shares of Class C Common Stock
PURCHASE AGREEMENT
January 26, 2001
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
(An affiliate of Credit Suisse First Boston Corporation)
Chase Securities Inc.
BNP Paribas Securities Corp.
UBS Warburg LLC
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
IWO Holdings, Inc., a Delaware corporation (the "Company"), proposes
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to issue and sell to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation (an
affiliate of Credit Suisse First Boston Corporation), Chase Securities Inc., BNP
Paribas Securities Corp. and UBS Warburg LLC (each, an "Initial Purchaser" and,
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collectively, the "Initial Purchasers") 160,000 units (the "Units"), each
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consisting of
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$1,000 in aggregate principal amount at maturity of its 14% Senior Notes due
2011 (the "Initial Notes"), and one warrant (a "Warrant") to purchase
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12.50025 shares of the Company's Class C common stock, par value $0.01 per share
("Common Stock"), subject to the terms and conditions set forth herein. The
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Initial Notes are to be issued pursuant to the provisions of an indenture (the
"Indenture"), to be dated as of the Closing Date (as defined below), among the
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Company, the Guarantor (as defined below) and Firstar Bank, N.A., as trustee
(the "Trustee"). The Initial Notes and the Exchange Notes (as defined below)
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issuable in exchange therefor are collectively referred to herein as the
"Notes." The Notes will be guaranteed (the "Guarantee") initially by
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Independent Wireless One Corporation (the "Guarantor"), and by future
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subsidiaries of the Company that become Restricted Subsidiaries (as defined in
the Indenture) (the Guarantor and such future subsidiaries are referred to
collectively as the "Guarantors"). The Warrants will be issued pursuant to a
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warrant agreement (the "Warrant Agreement"), to be dated as of the Closing Date,
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between the Company and Firstar Bank, N.A., as warrant agent (the "Warrant
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Agent"). The shares of Common Stock issuable upon exercise of the Warrants are
referred to herein, collectively, as the "Warrant Shares." The Units, the
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Notes, the Guarantees and the Warrants are referred to herein, collectively, as
the "Securities." Capitalized terms used but not defined herein shall have the
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meanings given to such terms in the Indenture or Warrant Agreement, as
applicable.
1. Offering Circular. The Units will be offered and sold to the
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Initial Purchasers pursuant to one or more exemptions from the registration
requirements under the Securities Act of 1933, as amended (the "Act"). The
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Company and the Guarantor have prepared a preliminary offering circular, dated
January 23, 2001 (the "Preliminary Offering Circular") and a final offering
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circular, dated January 26, 2001 (the "Offering Circular"), relating to the
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Units.
Upon original issuance thereof, and until such time as the same is no
longer required pursuant to the Indenture and the Warrant Agreement, the Initial
Notes and the Warrants (and, as to both the Initial Notes and the Warrants, all
securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear a legend in substantially the following form,
together with such other legends as may be set forth in the Indenture or Warrant
Agreement, as applicable:
This security (or its predecessor) was originally issued in a transaction
exempt from registration under the United States
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Securities Act of 1933 (the "Securities Act"), and this security [and the class
c common stock issuable upon exercise hereof] may not be offered, sold or
otherwise transferred in the absence of such registration or an applicable
exemption therefrom. Each purchaser of this SECURITY is hereby notified that the
seller of this SECURITY may be relying on the exemption from the provisions of
Section 5 of the Securities Act provided by Rule 144A thereunder.
The holder of this security agrees for the benefit of the company that (A)
this security [and the class c common stock issuable upon exercise hereof] may
be offered, resold, pledged or otherwise transferred, only (i) to a person whom
the seller reasonably believes is a qualified institutional buyer (as defined in
Rule 144A under the Securities Act) in a transaction meeting the requirements of
Rule 144A, (ii) outside the United States in an offshore transaction in
accordance with Rule 904 under the Securities Act, (iii) pursuant to an
exemption from registration under the Securities Act provided by Rule 144
thereunder (if available) or (iv) pursuant to an effective registration
statement under the Securities Act, in each of cases (i) through (iv) in
accordance with any applicable securities laws of any state of the United
States, (b) the holder must, prior to certain transfers of this security [and
the class c common stock issuable upon exercise hereof], furnish to the company
or its agents such certificates, legal opinions and other information as may be
reasonably requested, and ( c) the holder will, and each subsequent holder is
required to, notify any purchaser of this SECURITY from it of the resale
restrictions referred to in (A) and (b) above.
2. Agreements to Sell and Purchase. On the basis of the representations,
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warranties and covenants contained in this Agreement, and subject to the terms
and conditions contained herein, the Company agrees to issue and sell to the
Initial Purchasers, and each Initial Purchaser agrees, severally and not
jointly, to purchase from the Company, the number of Units set forth opposite
the name of such Initial Purchaser in Schedule A attached hereto at a purchase
price equal to $970.00 per Unit (the "Purchase Price").
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3. Terms of Offering. The Initial Purchasers have advised the Company
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that the Initial Purchasers will make offers (the "Exempt Resales") of the Units
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purchased hereunder on the terms set forth in the Offering Circular, as amended
or supplemented, solely to (i) persons whom the Initial Purchasers reasonably
believe to
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be "qualified institutional buyers" as defined in Rule 144A under the Act
("QIBs"), and (ii) persons permitted to purchase the Units in offshore
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transactions in reliance upon Regulation S under the Act (each, a "Regulation S
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Purchaser") (such persons specified in clauses (i), (ii) and (iii) being
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referred to herein as the "Eligible Purchasers"). The Initial Purchasers will
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offer the Units to Eligible Purchasers initially at a price equal to $1,000.00
per Unit. Such price may be changed at any time without notice.
The purchase price shall be allocated for United States federal income tax
purposes as follows: $950.26 to each Note and $49.74 to each Warrant.
Holders (including subsequent transferees) of the Units will have the
registration rights set forth in the registration rights agreement (the "Notes
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Registration Rights Agreement"), to be dated the Closing Date, substantially in
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the form of Exhibit A hereto, and the registration rights agreement (the
"Warrant Registration Rights Agreement"), to be dated the Closing Date,
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substantially in the form of Exhibit B hereto, for so long as such Initial
Notes, Warrants or Warrant Shares constitute "Transfer Restricted Securities"
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(as defined in the Notes Registration Rights Agreement and the Warrant
Registration Rights Agreement, as applicable). Pursuant to the Notes
Registration Rights Agreement and the Warrant Registration Rights Agreement, as
applicable, (i) the Company and the Guarantor will agree to file with the
Securities and Exchange Commission (the "Commission") under the circumstances
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set forth therein, (x) a registration statement under the Act (the "Exchange
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Offer Registration Statement") relating to the Company's 14% Senior Notes due
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2011 (the "Exchange Notes"), to be offered in exchange for the Initial Notes
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(such offer to exchange being referred to as the "Exchange Offer") and the
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Guarantees thereof and (y) a shelf registration statement pursuant to Rule 415
under the Act (the "Notes Shelf Registration Statement" and, together with the
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Exchange Offer Registration Statement, the "Notes Registration Statements")
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relating to the resale by certain holders of the Initial Notes and to use their
respective reasonable best efforts to cause such Notes Registration Statements
to be declared and remain effective and usable for the periods specified in the
Notes Registration Rights Agreement and to consummate the Exchange Offer and
(ii) the Company will agree to file with the Commission under the circumstances
set forth therein a registration statement pursuant to Rule 415 under the Act
("Warrant Shelf Registration Statement") relating to the resale of the Warrants,
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the issuance of shares of Common Stock upon exercise of the Warrants and the
resale of the Warrant Shares and to use its best efforts to cause such Warrant
Shelf Registration Statement to be declared and remain effective and usable for
the periods specified in the Warrant Registration Rights Agreement. This
Agreement, the Indenture, the Notes, the
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Guarantee, the Warrants, the Warrant Agreement, the Notes Registration Rights
Agreement and the Warrant Registration Rights Agreement are hereinafter
sometimes referred to collectively as the "Operative Documents."
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4. Delivery and Payment.
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(1) Delivery of, and payment of the Purchase Price for, the Units
shall be made at the offices of Xxxxxx, Xxxx & Xxxxxxxx LLP, 000 Xxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, XX 00000 or such other location as may be mutually
acceptable. Such delivery and payment shall be made at 9:00 a.m. New York City
time, on February 2, 2001, or at such other time on the same date or such other
date as shall be agreed upon by the Initial Purchasers and the Company in
writing. The time and date of such delivery and the payment for the Units are
herein called the "Closing Date."
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(b) One or more of the Initial Notes in definitive Initial form and
one or more of the Warrants in definitive global form, in each case registered
in the name of Cede & Co., as nominee of the Depository Trust Company ("DTC"),
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having, in the case of the Initial Notes, an aggregate principal amount
corresponding to the aggregate principal amount of the Initial Notes (
collectively, the "Global Note") and representing, in the case of Warrants, the
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right to purchase the number of Warrant Shares corresponding to the aggregate
number of Warrant Shares (collectively, the "Global Warrant"), shall be
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delivered by the Company to the Initial Purchasers (or as the Initial Purchasers
direct) in each case with any transfer taxes thereon duly paid by the Company
against payment by the Initial Purchasers of the Purchase Price thereof by wire
transfer in same day funds to the order of the Company. The Global Note and the
Global Warrant shall be made available to the Initial Purchasers for inspection
not later than 9:30 a.m., New York City time, on the business day immediately
preceding the Closing Date.
5. Agreements of the Company and the Guarantor. Each of the Company and
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the Guarantor hereby agrees with the Initial Purchasers as follows:
(1) To advise the Initial Purchasers promptly and, if requested by the
Initial Purchasers, confirm such advice in writing, (i) of the issuance by any
state securities commission of any stop order suspending the qualification or
exemption from qualification of any Securities for offering or sale in any
jurisdiction designated by the Initial Purchasers pursuant to Section 5(e)
hereof, or the initiation of any proceeding by any state securities commission
or any other federal or state regulatory authority for such purpose and (ii) of
the happening of any event during the period
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referred to in Section 5(c) below that makes any statement of a material fact
made in the Preliminary Offering Circular or the Offering Circular untrue or
that requires any additions to or changes in the Preliminary Offering Circular
or the Offering Circular in order to make the statements therein not misleading.
The Company and the Guarantor shall use their best efforts to prevent the
issuance of any stop order or order suspending the qualification or exemption of
any Securities under any state securities or Blue Sky laws and, if at any time
any state securities commission or other federal or state regulatory authority
shall issue an order suspending the qualification or exemption of any Securities
under any state securities or Blue Sky laws, the Company and the Guarantor shall
use their reasonable best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time.
(2) To furnish the Initial Purchasers and those persons identified
by the Initial Purchasers to the Company as many copies of the Preliminary
Offering Circular and the Offering Circular, and any amendments or supplements
thereto, as the Initial Purchasers may reasonably request for the time period
specified in Section 5(c). Subject to the Initial Purchasers' compliance with
their representations and warranties and agreements set forth in Section 7
hereof, the Company consents to the use of the Preliminary Offering Circular and
the Offering Circular, and any amendments and supplements thereto required
pursuant hereto, by the Initial Purchasers in connection with Exempt Resales.
(3) During such period as in the opinion of counsel for the Initial
Purchasers an Offering Circular is required by law to be delivered in connection
with Exempt Resales by the Initial Purchasers and in connection with market-
making activities of the Initial Purchasers for so long as any Securities are
outstanding, (i) not to make any amendment or supplement to the Offering
Circular of which the Initial Purchasers shall not previously have been advised
or to which the Initial Purchasers shall reasonably object after being so
advised and (ii) to prepare promptly upon the Initial Purchasers' reasonable
request, any amendment or supplement to the Offering Circular which may be
necessary or advisable in connection with such Exempt Resales or such market-
making activities.
(4) If, during the period referred to in Section 5(c) above, any event
shall occur or condition shall exist as a result of which, in the opinion of
counsel to the Initial Purchasers, it becomes necessary to amend or supplement
the Offering Circular in order to make the statements therein, in the light of
the circumstances when such Offering Circular is delivered to an Eligible
Purchaser, not misleading, or if, in the opinion of counsel to the Initial
Purchasers, it is necessary to amend or supplement the Offering Circular to
comply with any applicable law, forthwith to
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prepare an appropriate amendment or supplement to such Offering Circular so that
the statements therein, as so amended or supplemented, will not, in the light of
the circumstances when it is so delivered, be misleading, or so that such
Offering Circular will comply with applicable law, and to furnish to the Initial
Purchasers and such other persons as the Initial Purchasers may designate such
number of copies thereof as the Initial Purchasers may reasonably request.
(5) Prior to the sale of all Securities pursuant to Exempt Resales as
contemplated hereby, to cooperate with the Initial Purchasers and counsel to the
Initial Purchasers in connection with the registration or qualification of the
Securities for offer and sale to the Initial Purchaser and pursuant to Exempt
Resales under securities or Blue Sky laws as the Initial Purchasers may
reasonably request and to continue such registration or qualification in effect
so long as required for Exempt Resales and to file such consents to service of
process or other documents as may be necessary in order to effect such
registration or qualification; provided, however, that neither the Company nor
the Guarantor shall be required in connection therewith to qualify as a foreign
corporation in any jurisdiction in which it is not now so qualified or to take
any action that would subject it to general consent to service of process or
taxation other than as to matters and transactions relating to the Preliminary
Offering Circular, the Offering Circular or Exempt Resales in any jurisdiction
in which it is not now so subject.
(6) So long as any of the Securities are outstanding, to furnish to
the Initial Purchasers as soon as available copies of all reports or other
communications furnished by the Company or any of the Guarantor to its security
holders in their capacities as such or publicly available documents furnished to
or filed with the Commission or any national securities exchange on which any
class of securities of the Company or any of the Guarantors is listed and such
other publicly available information concerning the Company and/or its
subsidiaries as the Initial Purchasers may reasonably request.
(7) So long as any of the Securities remain outstanding and during any
period in which the Company and the Guarantors are not subject to Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
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to make available to any holder of such Securities in connection with any sale
thereof and any prospective purchaser of such Securities from such holder, the
information ("Rule 144A Information") required by Rule 144A(d)(4) under the Act.
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(8) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be
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paid all expenses incident to the performance of the obligations of the Company
and the Guarantor under this Agreement, including: (i) the fees, disbursements
and expenses of counsel to the Company and the Guarantor and accountants of the
Company and the Guarantor in connection with the sale and delivery of the
Securities to the Initial Purchasers and pursuant to Exempt Resales, and all
other fees and expenses in connection with the preparation, printing, filing and
distribution of the Preliminary Offering Circular, the Offering Circular and all
amendments and supplements to any of the foregoing (including financial
statements), including the mailing and delivering of copies thereof to the
Initial Purchasers and persons designated by it in the quantities specified
herein, (ii) all costs and expenses related to the transfer and delivery of the
Securities to the Initial Purchasers and pursuant to Exempt Resales, including
any transfer or other taxes payable thereon, (iii) all costs of printing or
producing this Agreement, the other Operative Documents and any other agreements
or documents in connection with the offering, purchase, sale or delivery of the
Securities, (iv) all expenses in connection with the registration or
qualification of the Securities for offer and sale under the securities or Blue
Sky laws of the several states and all costs of printing or producing any
preliminary and supplemental Blue Sky memoranda in connection therewith
(including the filing fees and fees and disbursements of counsel for the Initial
Purchasers in connection with such registration or qualification and memoranda
relating thereto), (v) the cost of printing certificates representing the
Securities, (vi) all expenses and listing fees in connection with the
application for quotation of the Units, Initial Notes and the Warrants in the
National Association of Securities Dealers, Inc. ("NASD") Automated Quotation
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System - PORTAL ("PORTAL"), (vii) the fees and expenses of the Trustee and the
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Trustee's counsel in connection with the Indenture, the Notes and the
Guarantees, (viii) the fees and expenses of the Warrant Agent and the Warrant
Agent's counsel in connection with the Warrant Agreement and the Warrants, (ix)
the costs and charges of any transfer agent, registrar and/or depositary
(including DTC), (x) any fees charged by rating agencies for the rating of the
Securities, (xi) all costs and expenses of the Exchange Offer, any Notes
Registration Statement and any Warrant Shelf Registration Statement, as set
forth in the Notes Registration Rights Agreement and the Warrant Registration
Rights Agreement, (xii) all costs and expenses incurred in connection with the
Pledge Account as described in the Indenture, and (xiii) and all other costs and
expenses incident to the performance of the obligations of the Company and the
Guarantor hereunder for which provision is not otherwise made in this Section.
(9) To use its best efforts to effect the inclusion of the Units,
Initial Notes and Warrants in PORTAL and to maintain the listing of the Units,
Initial Notes and Warrants on PORTAL for so long as the Units, Initial Notes and
Warrants are
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outstanding.
(10) To obtain the approval of DTC for "book-entry" transfer of the
Notes and the Warrants as Units and as separate securities, and to comply with
all of its agreements set forth in the representation letters of the Company and
the Guarantor to DTC relating to the approval of the Notes and the Warrants as
Units and as separate securities by DTC for "book-entry" transfer.
(11) During the period beginning on the date hereof and continuing
to and including the Closing Date, not to offer, sell, contract to sell or
otherwise transfer or dispose of any securities of the Company (including any
common stock of the Company) or any Guarantor or any warrants, rights or options
to purchase or otherwise acquire common stock of the Company or securities of
the Company or any Guarantor substantially similar to any of the Securities
(other than (i) the Units, (ii) the Notes and the Guarantees, (iii) the
Warrants, and (iv) commercial paper issued in the ordinary course of business),
without the prior written consent of the Initial Purchasers.
(12) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act) that
would be integrated with the sale of the Securities to the Initial Purchasers or
pursuant to Exempt Resales in a manner that would require the registration of
any such sale of Securities under the Act.
(13) Not to voluntarily claim, and to actively resist any attempts to
claim, the benefit of any usury laws against the holders of any Securities.
(14) To use its reasonable best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by it prior
to the Closing Date and to satisfy all conditions precedent to the delivery of
the Units.
6. Representations, Warranties and Agreements of the Company and the
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Guarantor. As of the date hereof, each of the Company and the Guarantor,
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jointly and severally, represents and warrants to, and agrees with, the Initial
Purchasers that:
(1) The Preliminary Offering Circular and the Offering Circular do
not, and any supplement or amendment to them will not, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under
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which they were made, not misleading, except that the representations and
warranties contained in this paragraph (a) shall not apply to statements in or
omissions from the Preliminary Offering Circular or the Offering Circular (or
any supplement or amendment thereto) based upon information relating to the
Initial Purchasers furnished to the Company in writing by the Initial Purchasers
expressly for use therein. No stop order preventing the use of the Preliminary
Offering Circular or the Offering Circular, or any amendment or supplement
thereto, or any order asserting that any of the transactions contemplated by
this Agreement are subject to the registration requirements of the Act, has been
issued.
(2) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the corporate power and
authority to carry on its business as described in the Preliminary Offering
Circular and the Offering Circular and to own, lease and operate its properties,
and each is duly qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the nature of its
business or its ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a material adverse
effect on the business, prospects, financial condition or results of operations
of the Company and its subsidiaries, taken as a whole (a "Material Adverse
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Effect").
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(3) All outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid, nonassessable and not
subject to any preemptive or similar rights. The authorized capital stock of the
Company conforms to the description thereof contained in the Offering Circular
in all material respects.
(4) The entities listed on Schedule B hereto are the only
subsidiaries, direct or indirect, of the Company. All of the outstanding shares
of capital stock of each of the Company's subsidiaries have been duly authorized
and validly issued and are fully paid and non-assessable, and are owned by the
Company, directly or indirectly through one or more subsidiaries, free and clear
of any security interest, claim, lien, encumbrance or adverse interest of any
nature other than those imposed under the Guarantor's credit facilities as
disclosed in the Offering Circular (each, a "Lien").
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(5) This Agreement has been duly authorized, executed and delivered
by the Company and the Guarantor.
(6) The Warrant Agreement has been duly authorized by the
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Company and, on the Closing Date, will have been validly executed and delivered
by the Company. When the Warrant Agreement has been validly executed and
delivered by the Company, the Warrant Agreement will be a valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(7) The Warrants have been duly authorized by the Company and, on
the Closing Date, will have been validly executed and delivered by the Company.
When the Warrants have been executed and countersigned in accordance with the
provisions of the Warrant Agreement and delivered to and paid for by the Initial
Purchasers as part of a Unit, the Warrants will be entitled to the benefits of
the Warrant Agreement and will be valid and binding obligations of the Company
enforceable in accordance with their terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability. On the Closing Date, the Warrants will conform to the description
thereof contained in the Offering Circular in all material respects.
(8) The Warrant Shares have been duly and validly authorized for
issuance by the Company and, when issued pursuant to the terms of the Warrants
and the Warrant Agreement, will be validly issued, fully paid, nonassessable and
not subject to any preemptive or similar rights.
(9) The Indenture has been duly authorized by the Company and the
Guarantor and, on the Closing Date, will have been validly executed and
delivered by the Company and the Guarantor. When the Indenture has been duly
executed and delivered by the Company and the Guarantor, the Indenture will be a
valid and binding agreement of the Company and the Guarantor, enforceable
against the Company and the Guarantor in accordance with its terms except as (i)
the enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration and
the availability of equitable remedies may be limited by equitable principles of
general applicability. On the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act of 1939, as
amended (the "TIA" or "Trust Indenture Act"), and the rules and regulations of
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the Commission applicable to an indenture which is qualified thereunder.
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(10) The Initial Notes have been duly authorized and, on the Closing
Date, will have been validly executed and delivered by the Company. When the
Initial Notes have been issued, 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 as part of a Unit, the
Initial Notes will be entitled to the benefits of the Indenture and will be
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability. On the
Closing Date, the Initial Notes will conform to the description thereof
contained in the Offering Circular in all material respects.
(11) The Exchange Notes have been duly authorized by the Company.
When the Exchange Notes are issued, executed and authenticated in accordance
with the terms of the Exchange Offer and the Indenture, the Exchange Notes will
be entitled to the benefits of the Indenture and will be the valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(ii) rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability. When the Exchange
Notes are issued, authenticated and delivered, the Exchange Notes will conform
to the description thereof contained in the Offering Circular in all material
respects.
(12) The Guarantee to be endorsed on the Initial Notes by the
Guarantor has been duly authorized by the Guarantor and, on the Closing Date,
will have been duly executed and delivered by the Guarantor. When the Initial
Notes have been issued, executed and authenticated in accordance with the
Indenture and delivered to and paid for by the Initial Purchasers in accordance
with the terms of this Agreement as part of a Unit, the Guarantee of the
Guarantor endorsed thereon will be entitled to the benefits of the Indenture and
will be the valid and binding obligation of the Guarantor, enforceable against
the Guarantor in accordance with its terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability. On the Closing Date, the Guarantee to be endorsed on the Initial
Notes will conform to the description thereof contained in the Offering Circular
in all material respects.
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(13) The Guarantee to be endorsed on the Exchange Notes by the
Guarantor has been duly authorized by the Guarantor and, when issued, will have
been duly executed and delivered by the Guarantor. When the Exchange Notes have
been issued, executed and authenticated in accordance with the terms of the
Exchange Offer and the Indenture, the Guarantee of the Guarantor endorsed
thereon will be entitled to the benefits of the Indenture and will be the valid
and binding obligation of the Guarantor, enforceable against the Guarantor in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability. When
the Exchange Notes are issued, authenticated and delivered, the Guarantees to be
endorsed on the Exchange Notes will conform to the description thereof in the
Offering Circular in all material respects.
(14) The Notes Registration Rights Agreement has been duly authorized
by the Company and the Guarantor and, on the Closing Date, will have been duly
executed and delivered by the Company and the Guarantor. When the Notes
Registration Rights Agreement has been duly executed and delivered, the Notes
Registration Rights Agreement will be a valid and binding agreement of the
Company and the Guarantor, enforceable against the Company and the Guarantor in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability. On the
Closing Date, the Notes Registration Rights Agreement will conform to the
description thereof contained in the Offering Circular in all material respects.
(15) The Warrant Registration Rights Agreement has been duly
authorized by the Company and, on the Closing Date, will have been duly executed
and delivered by the Company. When the Warrant Registration Rights Agreement has
been duly executed and delivered, the Warrant Registration Rights Agreement will
be a valid and binding agreement of the Company, enforceable against the Company
in accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability. On the
Closing Date, the Warrant Registration Rights Agreement will conform to the
description thereof contained in the Offering Circular in all material respects.
(16) Each of the Company and the Guarantor has duly and validly
13
authorized the issuance of the Initial Notes, the Guarantees and the Warrants
as Units.
(17) The Units conform to the description thereof contained in the
Offering Circular in all material respects.
(18) The security and control agreement (the "Security Agreement")
------------------
to be entered into by the Company, the Trustee and Firstar Bank, N.A. as
securities intermediary (in such capacity, the "Securities Intermediary") has
-----------------------
been duly authorized by the Company and, on the Closing Date, will have been
duly executed and delivered by the Company. When the Security Agreement has been
duly executed and delivered, the Security Agreement will be a valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability. On the Closing Date, the Security
Agreement will conform to the description thereof contained in the Offering
Circular in all material respects.
(19) The provisions of the Security Agreement are effective to
create, in favor of the Trustee to secure the Obligations (as defined in the
Security Agreement), a valid security interest in the Company's rights in all
Security Entitlements.
(20) The provisions of the Security Agreement are effective to
perfect the security interest of the Trustee in the Security Entitlements.
(21) Neither the Company nor any of its subsidiaries is (i) in
violation of its respective charter or by-laws or (ii) in default in the
performance of any obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or instrument that
is material to the Company and its subsidiaries, taken as a whole, to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries or their respective property is bound, except, in the case of
(ii) above as would not be reasonably likely to result in a Material Adverse
Effect.
(22) The execution, delivery and performance of this Agreement and
the other Operative Documents by the Company and the Guarantor, compliance by
the Company and the Guarantor with all provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby will not (i)
14
require any consent, approval, authorization or other order of, or qualification
with, any court or governmental body or agency (except such as may be required
under the securities or Blue Sky laws of the various states), (ii) conflict with
or constitute a breach of any of the terms or provisions of, or a default under,
the charter or by-laws of the Company or any of its subsidiaries, or (iii)
violate or conflict with any applicable law or any rule, regulation, judgment,
order or decree of any court or any governmental body or agency having
jurisdiction over the Company, any of its subsidiaries or their respective
property.
(23) The execution, delivery and performance of this Agreement and
the other Operative Documents by the Company and the Guarantor, compliance by
the Company and the Guarantor with all provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby will not (i)
conflict with or constitute a breach of any of the terms or provisions of, or a
default under any indenture, loan agreement, mortgage, lease or other agreement
or instrument that is material to the Company and its subsidiaries, taken as a
whole, to which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries or their respective property is bound,
(ii) result in the imposition or creation of (or the obligation to create or
impose) a Lien under, any agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its subsidiaries
or their respective property is bound, or (iii) result in the termination,
suspension or revocation of any Authorization (as defined below) of the Company
or any of its subsidiaries or result in any other impairment of the rights of
the holder of any such Authorization, except for any of (i) through (iii) above
as would not result, singly or in the aggregate, in a Material Adverse Effect.
(24) There are no legal or governmental proceedings pending or, to
the best of the Company's knowledge, threatened to which the Company or any of
its subsidiaries is or could be a party or to which any of their respective
property is or could be subject, which would result, singly or in the aggregate,
in a Material Adverse Effect.
(25) Neither the Company nor any of its subsidiaries has violated
any foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), any
------------------
provisions of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or any provisions of the Foreign Corrupt Practices Act or the rules
-----
and regulations promulgated thereunder, except for such violations which, singly
or in the aggregate,
15
would not have a Material Adverse Effect.
(26) Each of the Company and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "Authorization") of, and has made all filings with and notices to, all
-------------
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a Material Adverse Effect. Each such
Authorization is valid and in full force and effect and each of the Company and
its subsidiaries is in compliance with all the terms and conditions thereof and
with the rules and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing body)
which allows or, after notice or lapse of time or both, would allow, revocation,
suspension or termination of any such Authorization or results or, after notice
or lapse of time or both, would result in any other impairment of the rights of
the holder of any such Authorization; and such Authorizations contain no
restrictions that are burdensome to the Company or any of its subsidiaries;
except where such failure to be valid and in full force and effect or to be in
compliance, the occurrence of any such event or the presence of any such
restriction would not, singly or in the aggregate, result in a Material Adverse
Effect.
(27) The accountants that have certified the financial statements and
supporting schedules included in the Preliminary Offering Circular and the
Offering Circular are independent public accountants with respect to the Company
and the Guarantor, as required by the Act and the Exchange Act.
(28) The historical financial statements, together with related
schedules and notes forming part of the Offering Circular (and any amendment or
supplement thereto), present fairly the consolidated financial position, results
of operations and changes in financial position of the Company and its
subsidiaries on the basis stated in the Offering 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 and statistical
information and data set forth in the Offering Circular (and any amendment or
supplement thereto) are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements
16
and the books and records of the Company.
(29) The pro forma financial statements included in the Preliminary
Offering Circular and the Offering Circular have been prepared on a basis
consistent with the historical financial statements of the Company and its
subsidiaries and give effect to assumptions used in the preparation thereof on a
reasonable basis and in good faith and present fairly the historical and
proposed transactions contemplated by the Preliminary Offering Circular and the
Offering Circular; and such pro forma financial statements comply as to form in
all material respects with the requirements applicable to pro forma financial
statements included in registration statements on Form S-1 under the Act. The
other pro forma financial and statistical information and data included in the
Offering Circular are, in all material respects, accurately presented and
prepared on a basis consistent with the pro forma financial statements.
(30) Except as disclosed in the Preliminary Offering Circular and the
Offering Circular, there are no contracts, agreements or understandings between
the Company or the Guarantor and any person granting such person the right to
require the Company or the Guarantor to file a registration statement under the
Act with respect to any securities of the Company or the Guarantor or to require
the Company or the Guarantor to include such securities with the Notes and
Guarantees registered pursuant to any Notes Registration Statement or the
Warrants or Warrant Shares registered pursuant to any Warrant Shelf Registration
Statement.
(31) Neither the Company nor 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 Offering Circular, will be, an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
(32) Neither the Company nor any of its subsidiaries nor any agent
thereof acting on the behalf of them has taken, and none of them will take, any
action that might cause this Agreement or the issuance or sale of the Securities
to violate Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221)
or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal
Reserve System.
(33) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Act (i) has
imposed (or has informed the Company or the Guarantor that it is considering
imposing) any condition (financial or otherwise) on the Company's or the
Guarantor's retaining any
17
rating assigned to the Company or the Guarantor, any securities of the Company
or the Guarantor or (ii) has indicated to the Company or the Guarantor that it
is considering (a) the downgrading, suspension, or withdrawal of, or any review
for a possible change that does not indicate the direction of the possible
change in, any rating so assigned or (b) any change in the outlook for any
rating of the Company, the Guarantor or any securities of the Company or the
Guarantor.
(34) Since the respective dates as of which information is given in
the Offering Circular other than as set forth in the Offering Circular
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement), (i) there has not occurred any material adverse change or any
development reasonably likely to involve a prospective material adverse change
in the condition, financial or otherwise, or the earnings, business, management
or operations of the Company and its subsidiaries, taken as a whole, (ii) there
has not been any material adverse change or any development reasonably likely to
involve a prospective material adverse change in the capital stock or in the
long-term debt of the Company or any of its subsidiaries and (iii) neither the
Company nor any of its subsidiaries has incurred any material liability or
obligation, direct or contingent.
(35) Each of the Preliminary Offering Circular and the Offering
Circular, as of its date, contains all the information specified in, and meeting
the requirements of, Rule 144A(d)(4) under the Act.
(36) When the Securities are issued and delivered pursuant to this
Agreement, none of the Securities will be of the same class (within the meaning
of Rule 144A under the Act) as any security of the Company or the Guarantor that
is listed on a national securities exchange registered under Section 6 of the
Exchange Act or that is quoted in a United States automated inter-dealer
quotation system.
(37) No form of general solicitation or general advertising (as
defined in Regulation D under the Act) was used by the Company, the Guarantor or
any of their respective representatives (other than the Initial Purchasers, as
to whom the Company and the Guarantor make no representation) in connection with
the offer and sale of the Securities contemplated hereby, including, but not
limited to, articles, notices or other communications published in any
newspaper, magazine, or similar medium or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. No securities of the same class as any of
the Securities have been issued and sold by the Company within the six-month
period immediately prior to the date hereof, except as disclosed in the Offering
Circular.
18
(38) Prior to the effectiveness of any Notes Registration Statement,
the Indenture is not required to be qualified under the TIA.
(39) Neither of the Company, the Guarantor nor any of their respective
affiliates or any person acting on its or their behalf (other than the Initial
Purchasers, as to whom the Company and the Guarantor make no representation) has
engaged or will engage in any directed selling efforts within the meaning of
Regulation S under the Act ("Regulation S") with respect to any of the
------------
Securities.
(40) Neither of the Company or the Guarantor shall have taken or
omitted to take any action that shall have resulted in any Securities offered
and sold in reliance on Regulation S not to have been offered and sold only in
offshore transactions.
(41) The sale of the Securities pursuant to Regulation S is not part
of a plan or scheme to evade the registration provisions of the Act.
(42) No registration under the Act of the Securities is required for
the sale of the Securities to the Initial Purchasers as contemplated hereby or
for the Exempt Resales assuming the accuracy of the Initial Purchasers'
representations and warranties and agreements set forth in Section 7 hereof.
(43) The Company, the Guarantor and their respective affiliates and
all persons acting on their behalf (other than the Initial Purchasers, as to
whom the Company and the Guarantor make no representation) have complied with
and will comply with the offering restrictions requirements of Regulation S in
connection with the offering of the Securities outside the United States and, in
connection therewith, the Offering Circular will contain the disclosure required
by Rule 902(h).
(44) The Securities sold in reliance on Regulation S will be
represented upon issuance by a temporary global security that may not be
exchanged for definitive securities until the expiration of the restricted
period (the "Restricted Period") referred to in Rule 903(b)(3) of the Act and
-----------------
only upon certification of beneficial ownership of such Securities by non-U.S.
persons or U.S. persons who purchased such Securities in transactions that were
exempt from the registration requirements of the Act. In the case of the Units,
the Warrants and the Common Stock issuable upon exercise of the Warrants, the
Restricted Period expires one year after the later of the commencement of the
offering of the Units pursuant hereto and the Closing Date. In the case of the
Initial Notes, the Restricted Period expires 40
19
days after the later of the commencement of the offering of the Units pursuant
hereto and the Closing Date.
(45) No relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its subsidiaries
on the other hand, which is required by the Act to be described in a
registration statement on Form S-1 under the Act which is not so described in
the Offering Circular.
(46) All indebtedness of the Company and the Guarantor (or any of
their respective predecessors) that will be repaid with the proceeds of the
issuance and sale of the Units was incurred, and the indebtedness represented by
the Initial Notes is being incurred, for proper purposes and in good faith and
each of the Company and the Guarantor (or any of their respective predecessors)
was, at the time of the incurrence of such indebtedness that will be repaid with
the proceeds of the issuance and sale of the Units, and will be on the Closing
Date (after giving effect to the application of the proceeds from the issuance
of the Units) solvent, and had at the time of the incurrence of such
indebtedness that will be repaid with the proceeds of the issuance and sale of
the Units and will have on the Closing Date (after giving effect to the
application of the proceeds from the issuance of the Units) sufficient capital
for carrying on their respective business and were, at the time of the
incurrence of such indebtedness that will be repaid with the proceeds of the
issuance and sale of the Units, and will be on the Closing Date (after giving
effect to the application of the proceeds from the issuance of the Units) able
to pay their respective debts as they mature.
(47) Each certificate signed by any officer of the Company or the
Guarantor and delivered to the Initial Purchasers or counsel for the Initial
Purchasers shall be deemed to be a representation and warranty by the Company or
the Guarantor to the Initial Purchasers as to the matters covered thereby.
(48) The Company and its subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to all personal
property owned by them which is material to the business of the Company and its
subsidiaries, in each case free and clear of all Liens and defects, except such
as are described in the Offering Circular or such as do not materially affect
the value of such property and do not interfere with the use made and proposed
to be made of such property by the Company and its subsidiaries; and any real
property and buildings held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable leases with such exceptions
as are not material and do not
20
interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries, in each case except as described
in the Offering Circular or as would not be reasonably likely to result in a
Material Adverse Effect.
(49) The Company and its subsidiaries own or possess, or can acquire
on reasonable terms, all patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names ("intellectual property") currently
---------------------
employed by them in connection with the business now operated by them except
where the failure to own or possess or otherwise be able to acquire such
intellectual property would not, singly or in the aggregate, have a Material
Adverse Effect; and neither the Company nor any of its subsidiaries has received
any notice of infringement of or conflict with asserted rights of others with
respect to any of such intellectual property which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(50) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; and neither the Company nor any of its subsidiaries (i) has received
notice from any insurer or agent of such insurer that substantial capital
improvements or other material expenditures will have to be made in order to
continue such insurance or (ii) 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 at a cost that would not be
reasonably likely to have a Material Adverse Effect.
(51) The Company and each of its subsidiaries maintains 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 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.
(52) All material Tax returns required to be filed by the Company
have been timely filed and all such Tax returns are true, complete, and correct
in all material
21
respects. All Taxes that are due or claimed to be due from the Company have been
paid other than those (i) currently payable without penalty or interest or (ii)
being contested in good faith and by appropriate proceedings and for which, in
the case of both clauses (i) and (ii), adequate reserves have been established
on the books and records of the Company in accordance with generally accepted
accounting principles. There are no proposed Tax assessments against the
Company. The accruals and reserves on the books and records of the Company in
respect of any Tax liability for any Taxable period not finally determined are
adequate to meet any assessments of Tax for any such period. Since December 31,
2000, the Company has not incurred any liability for Taxes other than in the
ordinary course of its business. For purposes of this Agreement, the term 'Tax"
or "Taxes" means all Federal, state, local and foreign taxes, and other
assessments of a similar nature (whether imposed directly or through
withholding), including any interest, additions to tax, or penalties applicable
thereto.
(53) There are no liens for Taxes upon any property or assets of the
Company, except for statutory liens for Taxes not yet due. No material Tax
audits are pending with regard to any Taxes or Tax returns of the Company and
the Company has not received notification that any such audit is contemplated or
may be initiated.
(54) No action has been taken and no law, statute, rule or regulation
or order has been enacted, adopted or issued by any governmental agency or body
which prevents the execution, delivery and performance of any of the Operative
Documents, the issuance of the Units, the Initial Notes, the Guarantees, the
Warrants or the Warrant Shares, or suspends the sale of the Securities in any
jurisdiction referred to in Section 5(e); and no injunction, restraining order
or other order or relief of any nature by a federal or state court or other
tribunal of competent jurisdiction has been issued with respect to the Company
or any of its subsidiaries which would prevent or suspend the issuance or sale
of the Securities in any jurisdiction referred to in Section 5(e).
(55) The Company has provided the Initial Purchasers and counsel for
the Initial Purchasers true and correct copies of each and every material
agreement (or, if an agreement has not been reduced to writing, a written
enumeration of the terms of such agreement) between and among the Company and
any Related Party (as such term is defined below), on the one hand, and Sprint
PCS and any Related Party on the other, including in each case any amendments
and addenda thereto and restatements thereof, as in effect on the date hereof
(collectively, the "Sprint Agreements"). For purposes of this subparagraph and
-----------------
the immediately following subparagraph, "Related Party" shall have the meaning
-------------
given to such term
22
in the Schedule of Definitions incorporated by reference in that certain
Sprint PCS Management Agreement executed by the Company and Sprint PCS as of
February 9, 1999 (the "Sprint PCS Management Agreement").
-------------------------------
(56) To the Company's knowledge, each of the Sprint Agreements (A)
has been duly authorized, executed and delivered by, (B) constitutes the valid
and binding obligation of and (C) is enforceable in accordance with its terms
against, the Company and any Related Party, to the extent each is a party
thereto.
(57) To the best of the Company's knowledge, each of the Sprint
Agreements (A) has been duly authorized, executed and delivered by, (B)
constitutes the valid and binding obligation of and (C) is enforceable in
accordance with its terms against, Sprint PCS and any Related Party, to the
extent each is a party thereto.
(58) The execution, delivery and performance of the Sprint Agreements
by the Company and any of its affiliates that are a party thereto, the
compliance to date by the Company and such affiliates with all the provisions
thereof and the consummation to date of the transactions contemplated thereby do
not (A) require any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except such as
have already been obtained), (B) conflict with or constitute a breach of any of
the terms or provisions of, or a default under (or an event which with notice or
lapse of time, or both, would constitute a breach of or a default under), (1)
the charter or by-laws of the Company or any of its subsidiaries or (2) any
indenture, loan agreement, mortgage, lease or other agreement or instrument that
is material to the Company and its subsidiaries, taken as a whole, to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries or their respective property is bound, (C) violate or conflict
with any applicable law or any rule, regulation, judgment, order or decree of
any court or any governmental body or agency having jurisdiction over the
Company, any of its subsidiaries or their respective property or (D) result in
the suspension, termination or revocation of any Authorization of the Company or
any of its subsidiaries or any other impairment of the rights of the holder of
any such Authorization, except, in the case of each of (A), (B)(2), (C) and (D),
such as would not be reasonably likely to result in a Material Adverse Effect.
(59) Each of the Sprint Agreements (including, without limitation,
the Sprint PCS Management Agreement) is, and the Sprint Agreements viewed as a
whole are, consistent with the terms and conditions of the License (as such term
is defined in the Sprint PCS Management Agreement) as the Federal Communications
Commission (the "FCC") has construed the terms of such License, or similar
---
licenses,
23
to date and, to the best of the Company's knowledge, is not otherwise contrary
to FCC policies, rules and regulations or other applicable law, rules or
regulations.
(60) The Company, the Guarantor and their respective affiliates and
all persons acting on their behalf (other than the Initial Purchasers, as to
whom the Company and the Guarantor make no representation) have complied with
and will comply with the offering restrictions requirements of Regulation S in
connection with the offering of the Securities outside the United States and, in
connection therewith, the Offering Circular will contain the disclosure required
by Rule 902(h).
(61) The Securities sold in reliance on Regulation S will be
represented upon issuance by a temporary global security that may not be
exchanged for definitive securities until the expiration of the relevant
Restricted Period and only upon certification of beneficial ownership of such
Securities by non-U.S. persons or U.S. persons who purchased such Securities in
transactions that were exempt from the registration requirements of the Act.
The Company acknowledges that the Initial Purchasers and, for purposes of
the opinions to be delivered to the Initial Purchasers pursuant to Section 9
hereof, counsel to the Company and the Guarantor and counsel to the Initial
Purchasers will rely upon the accuracy and truth of the foregoing
representations and hereby consents to such reliance.
7. Initial Purchasers' Representations and Warranties. Each Initial
--------------------------------------------------
Purchaser represents and warrants to, and agrees with, the Company and the
Guarantor:
(1) Such Initial Purchaser is a QIB, with such knowledge and
experience in financial and business matters as is necessary in order to
evaluate the merits and risks of an investment in the Securities.
(2) Such Initial Purchaser (A) is not acquiring the Securities with
a view to any distribution thereof or with any present intention of offering or
selling any of the Securities in a transaction that would violate the Act or the
securities laws of any state of the United States or any other applicable
jurisdiction and (B) will be reoffering and reselling the Securities only to (x)
QIBs in reliance on the exemption from the registration requirements of the Act
provided by Rule 144A, and (y) in offshore transactions in reliance upon
Regulation S under the Act.
(3) Such Initial Purchaser agrees that no form of general
24
solicitation or general advertising (within the meaning of Regulation D under
the Act) has been or will be used by such Initial Purchaser or any of its
representatives in connection with the offer and sale of the Securities pursuant
hereto, including, but not limited to, articles, notices or other communications
published in any newspaper, magazine or similar medium or broadcast over
television or radio, or any seminar or meeting whose attendees have been invited
by any general solicitation or general advertising.
(4) Such Initial Purchaser agrees that, in connection with Exempt
Resales, such Initial Purchaser will solicit offers to buy the Securities only
from, and will offer to sell the Securities only to, Eligible Purchasers. Each
Initial Purchaser further agrees that it will offer to sell the Securities only
to, and will solicit offers to buy the Securities only from (a) Eligible
Purchasers that the Initial Purchaser reasonably believes are QIBs and (b)
Regulation S Purchasers, in each case, that agree that (x) the Securities
purchased by them may be resold, pledged or otherwise transferred within the
time period referred to under Rule 144(k) (taking into account the provisions of
Rule 144(d) under the Act, if applicable) under the Act, as in effect on the
date of the transfer of such Securities, only (I) to the Company or any of its
subsidiaries, (II) to a person whom the seller reasonably believes is a QIB
purchasing for its own account or for the account of a QIB in a transaction
meeting the requirements of Rule 144A under the Act, (III) in an offshore
transaction (as defined in Rule 902 under the Act) meeting the requirements of
Rule 904 of the Act, (IV) in a transaction meeting the requirements of Rule 144
under the Act, (V) in accordance with another exemption from the registration
requirements of the Act (and based upon an opinion of counsel acceptable to the
Company) or (VI) pursuant to an effective registration statement and, in each
case, in accordance with the applicable securities laws of any state of the
United States or any other applicable jurisdiction and (y) they will deliver to
each person to whom such Securities or an interest therein is transferred a
notice substantially to the effect of the foregoing.
(5) Such Initial Purchaser and its affiliates or any person acting
on its or their behalf have not engaged or will not engage in any directed
selling efforts within the meaning of Regulation S with respect to the
Securities.
(6) The Securities offered and sold by such Initial Purchaser
pursuant hereto in reliance on Regulation S have been and will be offered and
sold only in offshore transactions.
(7) The sale of the Securities offered and sold by such Initial
Purchaser pursuant hereto in reliance on Regulation S is not part of a plan or
scheme
25
to evade the registration provisions of the Act.
(8) Such Initial Purchaser agrees that it has not offered or sold and
will not offer or sell the Securities in the United States or to, or for the
benefit or account of, a U.S. Person (other than a distributor), in each case,
as defined in Rule 902 under the Act (i) as part of its distribution at any time
and (ii) otherwise (x) in the case of the Units, the Warrants and the Common
Stock issuable upon exercise of the Warrants, until one year after the later of
the commencement of the offering of the Units pursuant hereto and the Closing
Date, and (y) in the case of the Initial Notes after the Separation Date (as
defined in the Offering Circular) until 40 days after the later of the
commencement of the offering of the Units pursuant hereto and the Closing Date,
other than in accordance with Regulation S of the Act or another exemption from
the registration requirements of the Act. Such Initial Purchaser agrees that,
during such one-year restricted period, it will not cause any advertisement with
respect to the Securities (including any "tombstone" advertisement) to be
published in any newspaper or periodical or posted in any public place and will
not issue any circular relating to the Securities, except such advertisements as
are permitted by and include the statements required by Regulation S.
(9) Such Initial Purchaser agrees that it has not offered or sold
and will not offer or sell the Securities and is not acquiring the securities
for or on behalf of, and will not transfer the securities to, any pension or
welfare plan as defined in Section 3 of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") or any other plan (as defined in Section
4975(e)(1) of the Internal Revenue Code (the "Code"), except:
----
(i) to the extent such purchase is made by or on behalf of a bank
collective investment fund maintained by the purchaser in which no plan
(together with any other plans maintained by the same employer or employee
organization) has an interest in excess of 10% of the total assets in such
collective investment fund, and the other applicable conditions of
Prohibited Transaction Class Exemption 91-38 issued by the Department of
Labor are satisfied;
(ii) to the extent such purchase is made by or on behalf of an insurance
company pooled separate account maintained by the purchaser in which, at
any time while the Notes are outstanding, no plan (together with any other
plans maintained by the same employer or employee organization) has an
interest in excess of 10% of the total of all
26
assets in such pooled separate account, and the other applicable conditions
of Prohibited Transaction Class Exemption 90-1 issued by the Department of
Labor are satisfied;
(iii) to the extent such purchase is made on behalf of a plan by (A) an
investment adviser registered under the Investment Advisers Act of 1940, as
amended (the "1940 Act"), that had as of the last day of its most recent
fiscal year total assets under its management and control in excess of
$50.0 million and had stockholders' or partners' equity in excess of
$750,000, as shown in its most recent balance sheet prepared in accordance
with generally accepted accounting principles, or (B) a bank as defined in
Section 202(a)(2) of the 1940 Act with equity capital in excess of $1.0
million as of the last day of its most recent fiscal year, or (C) an
insurance company which is qualified under the laws of more than one state
to manage, acquire or dispose of any assets of a pension or welfare plan,
which insurance company has as of the last of its most recent fiscal year,
net worth in excess of $1.0 million and which is subject to supervision and
examination by a State authority having supervision over insurance
companies and, in any case, such investment adviser, bank or insurance
company is otherwise a qualified professional asset manager, as such term
is used in Prohibited Transaction Class Exemption 84-14 issued by the
Department of Labor, and the assets of such plan when combined with the
assets of other plans established or maintained by the same employer (or
affiliate thereof) or employee organization and managed by such investment
adviser, bank or insurance company, do not represent more than 20% of the
total client assets managed by such investment adviser, bank or insurance
company at the time of the transaction, and the other applicable conditions
of such exemption are otherwise satisfied;
(iv) to the extent such plan is a governmental plan (as defined in Section
3 of ERISA and Section 414(d) of the Code) which is not subject to the
provisions of Title I of ERISA or Section 4975 of the Code;
(v) to the extent such purchase is made by or on behalf of an insurance
company using the assets of its general account,if the reserves and
liabilities for the general account contracts held by or on behalf of any
plan, together with any other plans maintained by the same employer (or its
affiliates) or employee organization, do not exceed 10% of the total
reserves and liabilities of the insurance company general
27
account (exclusive of separate account liabilities), plus surplus, as set
forth in the National Association of Insurance Commissioners Annual
Statement filed with the state of domicile of the insurer, in accordance
with Prohibited Transaction Class Exemption 95-60, and the other applicable
conditions of such exemption are otherwise satisfied;
(vi) to the extent such purchase is made on behalf of a plan by an in-house
asset manager within the meaning of Part IV(a) of Prohibited Transaction
Class Exemption 96-23, such manager has made or properly authorized the
decision for such plan to purchase securities, under circumstances such
that Prohibited Transaction Class Exemption 96-23 is applicable to the
purchase and holding of such securities; or
(vii) to the extent such purchase will not otherwise give rise to a
transaction described in Section 406 or Section 4975(c)(1) of the Code for
which a statutory or administrative exemption is unavailable.
(10) Such Initial Purchaser agrees that, at or prior to confirmation
of a sale of Securities by it to any distributor, dealer or person receiving a
selling concession, fee or other remuneration during the Restricted Period, it
will send to such distributor, dealer or person receiving a selling concession,
fee or other remuneration 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, as amended (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 your distribution at any
time or (ii) otherwise until one year [after the Separation Date this
period should be adjusted to 40 days with respect to the Initial
Notes] after the later of the commencement of the Offering and the
Closing Date, except in either case in accordance with Regulation S
under the Securities Act (or Rule 144A), and in connection with any
subsequent sale by you of the Securities covered hereby in reliance on
Regulation S during the period referred to above to any distributor,
dealer or person receiving a selling concession, fee or other
remuneration, you must deliver a notice to substantially the foregoing
effect. Terms used above have the meanings assigned to them in
Regulation S."
(11) Such Initial Purchaser agrees that the Securities offered and
sold in reliance on Regulation S will be represented upon issuance by global
28
securities that may not be exchanged for definitive securities until the
expiration of the applicable Restricted Period and only upon certification of
beneficial ownership of such Securities by non-U.S. persons or U.S. persons who
purchased such Securities in transactions that were exempt from the registration
requirements of the Act.
Such Initial Purchaser acknowledges that the Company and the Guarantor
and, for purposes of the opinions to be delivered to each Initial Purchaser
pursuant to Section 9 hereof, counsel to the Company and the Guarantor and
counsel to the Initial Purchaser will rely upon the accuracy and truth of the
foregoing representations and such Initial Purchaser hereby consents to such
reliance.
8. Indemnification.
---------------
(1) The Company and the Guarantor agree, jointly and severally, to
indemnify and hold harmless the Initial Purchaser, its directors, its officers
and each person, if any, who controls such Initial Purchaser within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages, liabilities and judgments (including, without
limitation, any legal or other expenses incurred in connection with
investigating or defending any matter, including any action, that could give
rise to any such losses, claims, damages, liabilities or judgments) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Offering Circular (or any amendment or supplement thereto), the Preliminary
Offering Circular or any Rule 144A Information provided by the Company or any
Guarantor to any holder or prospective purchaser of Securities pursuant to
Section 5(h) or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or judgments are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to the
Initial Purchaser furnished in writing to the Company by such Initial Purchaser
(and not with respect to the information provided by any other Initial
Purchaser); provided, however, that the foregoing indemnity agreement with
respect to any Preliminary Offering Circular shall not inure to the benefit of
any Initial Purchaser who failed to deliver a Final Offering Circular, as then
amended or supplemented, (so long as the Offering Circular and any amendment or
supplement thereto was provided by the Company to the several Initial Purchasers
in the requisite quantity and on a timely basis to permit proper delivery on or
prior to the Closing Date) to the person asserting any losses, claims, damages,
liabilities or judgements caused by any untrue statement or alleged untrue
statement of a material fact
29
contained in any Preliminary Offering Circular, or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, if such
material misstatement or omission or alleged material misstatement or omission
was cured in the Offering Circular, as so amended or supplemented.
(2) Each Initial Purchaser, severally and not jointly, agrees to
indemnify and hold harmless the Company and the Guarantor, and their respective
directors and officers and each person, if any, who controls (within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act) the Company or the
Guarantor, to the same extent as the foregoing indemnity from the Company and
the Guarantor to the Initial Purchaser but only with reference to information
relating to the Initial Purchaser furnished in writing to the Company by such
Initial Purchasers (and not with respect to the information provided by any
other Initial Purchaser) expressly for use in the Preliminary Offering Circular
or the Offering Circular.
(3) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
-----------------
against whom such indemnity may be sought (the "indemnifying party") in writing
------------------
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), the Initial Purchasers shall not be required to
assume the defense of such action pursuant to this Section 8(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
the Initial Purchasers). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall
30
not, in connection with any one action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for all
indemnified parties and all such fees and expenses shall be reimbursed as they
are incurred. Such firm shall be designated in writing by Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation, in the case of the parties indemnified pursuant
to Section 8(a), and by the Company, in the case of parties indemnified pursuant
to Section 8(b). The indemnifying party shall indemnify and hold harmless the
indemnified party from and against any and all losses, claims, damages,
liabilities and judgments by reason of any settlement of any action (i) effected
with its written consent or (ii) effected without its written consent if the
settlement is entered into more than twenty business days after the indemnifying
party shall have received a request from the indemnified party for reimbursement
for the fees and expenses of counsel (in any case where such fees and expenses
are at the expense of the indemnifying party) and, prior to the date of such
settlement, the indemnifying party shall have failed to comply with such
reimbursement request. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened
action in respect of which the indemnified party is or could have been a party
and indemnity or contribution may be or could have been sought hereunder by the
indemnified party, unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability on claims
that are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(4) To the extent the indemnification provided for in this Section 8
is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantor, on the one hand, and the Initial Purchasers on the
other hand from the offering of the Units 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 Company and the Guarantor, on
the one hand, and the Initial Purchasers, on the other hand, in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative
31
benefits received by the Company and the Guarantor, on the one hand and the
Initial Purchasers, on the other hand, shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Units (after
underwriting discounts and commissions, but before deducting expenses) received
by the Company, and the total discounts and commissions received by the Initial
Purchasers bear to the total price to investors of the Units, in each case as
set forth in the table on the cover page of the Offering Circular. The relative
fault of the Company and the Guarantor, on the one hand, and 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 Company or the Guarantor, on the one hand, or the Initial
Purchasers, on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Guarantor, and the Initial Purchasers agree that it
would not be just and equitable if contribution pursuant to this Section 8(d)
were determined by pro rata allocation (even if the Initial Purchasers were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such indemnified party in connection with investigating or defending any
matter, including any action, that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 8, the Initial Purchasers shall not be required to contribute any amount
in excess of the amount by which the total discounts and commissions received by
such Initial Purchaser exceeds the amount of any damages which the 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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Initial Purchasers' obligations to contribute pursuant to
this Section 8(d) are several in proportion to the respective number of Units
purchased by each of the Initial Purchasers hereunder and not joint.
(5) 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.
32
9. Conditions of Initial Purchasers' Obligations. The obligations of the
---------------------------------------------
Initial Purchasers to purchase the Units under this Agreement are subject to the
satisfaction of each of the following conditions:
(1) All the representations and warranties of the Company and the
Guarantor contained in this Agreement shall be true and correct in all material
respects on the Closing Date with the same force and effect as if made on and as
of the Closing Date.
(2) On or after the date hereof, (i) there shall not have occurred
any downgrading, suspension or withdrawal of, nor shall any notice have been
given of any potential or intended downgrading, suspension or withdrawal of, or
of any review (or of any potential or intended review) for a possible change
that does not indicate the direction of the possible change in, any rating of
the Company or any Guarantor or any securities of the Company or any Guarantor
(including, without limitation, the placing of any of the foregoing ratings on
credit watch with negative or developing implications or under review with an
uncertain direction) by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act, (ii) there shall not have occurred any change, nor shall any notice have
been given of any potential or intended change, in the outlook for any rating of
the Company or any Guarantor or any securities of the Company or any Guarantor
by any such rating organization and (iii) no such rating organization shall have
given notice that it has assigned (or is considering assigning) a lower rating
to any of the Securities than that on which the Units were marketed.
(3) Since the respective dates as of which information is given in
the Offering Circular other than as set forth in the Offering Circular
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement), (i) there shall not have occurred any change or any development
reasonably likely to involve a prospective change in the condition, financial or
otherwise, or the earnings, business, management or operations of the Company
and its subsidiaries, taken as a whole, (ii) there shall not have been any
change or any development reasonably likely to involve a prospective change in
the capital stock or in the long-term debt of the Company or any of its
subsidiaries and (iii) neither the Company nor any of its subsidiaries shall
have incurred any liability or obligation, direct or contingent, the effect of
which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in
your judgment, is material and adverse and, in your judgment, makes it
impracticable to market the Securities on the terms and in the manner
contemplated in the Offering Circular.
33
(4) You shall have received on the Closing Date a certificate dated
the Closing Date, signed by the Chief Executive Officer and the Chief Operating
Officer of the Company and the Guarantor, confirming the matters set forth in
Sections 6(hh), 9(a) and 9(b) and stating that each of the Company and the
Guarantor has complied with all the agreements and satisfied all of the
conditions herein contained and required to be complied with or satisfied on or
prior to the Closing Date.
(5) You shall have received on the Closing Date an opinion
(reasonably satisfactory to you and counsel for the Initial Purchasers), dated
the Closing Date, of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Company and
the Guarantor, to the effect that:
(1) the Warrant Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement of
the Company, enforceable against the Company in accordance with its
terms;
(2) the Warrants have been duly authorized and, when executed by
the Company in accordance with the provisions of the Warrant Agreement
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 the Company, enforceable against the Company in
accordance with its terms;
(3) the Warrant Shares have been duly and validly authorized for
issuance by the Company and, when issued pursuant to the terms of the
Warrants and the Warrant Agreement, will be validly issued, fully
paid, nonassessable and not subject to any preemptive or similar
rights pursuant to the General Corporation Law of the State of
Delaware or the Company's certificate of incorporation or any other
preemptive or similar rights;
(4) the Initial Notes have been duly authorized 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
34
Agreement, will be entitled to the benefits of the Indenture and will
be valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms;
(5) the Guarantee has been duly authorized and, when the Initial
Notes are 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, the
Guarantee endorsed thereon will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Guarantor,
enforceable against the Guarantor in accordance with its terms;
(6) the Indenture has been duly authorized, executed and
delivered by the Company and the Guarantor and is a valid and binding
agreement of the Company and the Guarantor, enforceable against the
Company and the Guarantor in accordance with its terms;
(7) this Agreement has been duly authorized, executed and
delivered by the Company and the Guarantor;
(8) The Notes Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and the Guarantor
and is a valid and binding agreement of the Company and the Guarantor,
enforceable against the Company and the Guarantor in accordance with
its terms;
(9) the Warrant Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms;
(10) the Exchange Notes have been duly authorized;
(11) the discussion set forth in the Offering Circular under the
caption "Certain United States Federal Tax Considerations,"
constitutes a fair and accurate summary of the
35
United States federal tax consequences to holders who purchase Units
pursuant to the Offering Circular.
(12) Insofar as the statements in the Offering Circular purport
to describe specific provisions of the Units, the Notes, the Warrants,
the capital stock of the Company or the Guarantor, the Company's
credit facilities and the Purchase Agreement, such statements present
in all material respects an accurate summary of such provisions.
(13) neither the issuance of the Notes or Guarantee nor the
execution, delivery and performance by either the Company or the
Guarantor of the Operative Documents to which it is a party, do or
will violate the charter or bylaws of such party;
(i) neither of the issuance of the Notes or Guarantee nor
the execution, delivery and performance by either Company or the
Guarantor of the Operative Documents to which it is a party, do
or will violate, or require any authorization, consent, waiver or
approval of any governmental authority or regulatory body of the
State New York or the United States of America under, any law or
regulation of the State of New York or the United States of
America applicable to such party that, in our experience, is
generally applicable to transactions in the nature of those
contemplated by the Operative Documents or the General
Corporation Law of the State of Delaware;
(14) neither the Company nor the Guarantor is and, after giving
effect to the offering and sale of the Securities and the
application of the net proceeds thereof as described in the Offering
Circular, will not be, required to be registered as an "investment
company" as such term is defined in the Investment Company Act of
1940, as amended;
(15) the Indenture complies as to form in all material respects
with the requirements of the TIA, and the rules and
36
regulations of the Commission applicable to an indenture which is
qualified thereunder. 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 or in connection with
the Exempt Resales to qualify the Indenture under the TIA.
(16) no registration under the Act of the Securities is
required for the sale of the Securities to the Initial Purchasers as
contemplated by this Agreement or for the Exempt Resales assuming
(i) the accuracy of, and compliance with, the Initial Purchasers'
representations and agreements contained in Section 7 of this
Agreement and (ii) the accuracy of the representations of the
Company and the Guarantor set forth in Sections 6(ii), (jj) and (kk)
of this Agreement.
(17) The Security Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement of
the Company, enforceable against the Company in accordance with its
terms.
(18) The provisions of the Security Agreement are effective to
create, in favor of the Trustee to secure the Obligations (as
defined in the Security Agreement), a valid security interest in the
Company's rights in all Security Entitlements (as defined in the
Security Agreement).
(19) The provisions of the Security Agreement are effective to
perfect the security interest of the Trustee in the Security
Entitlements.
The foregoing opinions as to enforceability and the legal, valid and
binding nature of obligations may be subject to (i) the effect of any
bankruptcy, insolvency, reorganization, moratorium, arrangement or 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
37
equitable remedies regardless of whether enforceability is considered in a
proceeding in equity or at law. The opinion of Xxxxxx Xxxx & Xxxxxxxx LLP may
be subject to other customary exceptions, assumptions and qualifications.
At the time the foregoing opinion is delivered, Xxxxxx Xxxx & Xxxxxxxx
LLP shall additionally state that it has participated in conferences with
officers and other representatives of the Company and the Guarantor,
representatives of the independent public accountants for the Company,
representatives of the Initial Purchasers and counsel for the Initial
Purchasers, at which conferences the contents of the Offering Circular and
related matters were discussed, and, although it has not independently verified
and is not passing upon and assumes no responsibility for the accuracy,
completeness or fairness of the statements contained in the Offering Circular
(except to the extent specified in subsections (xi) and (xii)), no facts have
come to its attention which lead it to believe that the Offering Circular, on
the date thereof or at the Closing Date, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading (it being understood
that such firm need express no opinion with respect to the financial statements
and related notes thereto and the other financial and accounting data included
in the Offering Circular).
(6) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Initial Purchasers), dated the
Closing Date, of Xxxx and Xxxx LLC, counsel for the Company and the Guarantor,
to the effect that:
(1) each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the
corporate (or similar) power and authority to carry on its business
as described in the Offering Circular and to own, lease and operate
its properties;
(2) each of the Company and its subsidiaries is duly qualified
and is in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or
its ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not be reasonably
likely to have a Material Adverse Effect;
38
(3) all the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid, non-
assessable and not subject to any preemptive or similar rights;
(4) all of the outstanding shares of capital stock of each of
the Company's subsidiaries have been duly authorized and validly
issued and are fully paid and non-assessable, and are owned by the
Company, free and clear of any Lien;
(5) the statements under the caption "Regulation of the
Wireless Telecommunications Industry" in the Offering Circular,
insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly
present in all material respects such legal matters, documents and
proceedings;
(6) neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws and, to the best of
such counsel's knowledge after due inquiry, neither the Company nor
any of its subsidiaries is in default in the performance of any
obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company and its subsidiaries,
taken as a whole, to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries or their
respective property is bound;
(7) the execution, delivery and performance of this Agreement
and the other Operative Documents by the Company and the Guarantor,
the compliance by the Company and the Guarantor with all provisions
hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (i) require any consent,
approval, authorization or other order of, or qualification with,
any court or governmental body or agency (except such as may be
required under the securities or Blue Sky laws of the various
states), (ii) conflict with or constitute a breach of any of the
terms or
39
provisions of, or a default under, the charter or by-laws of the
Company or any of its subsidiaries or any indenture, loan agreement,
mortgage, lease or other agreement or instrument that is material to
the Company and its subsidiaries, taken as a whole, to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or their respective property is
bound, (iii) violate or conflict with any applicable law or any
rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Company,
any of its subsidiaries or their respective property, (iv) result in
the imposition or creation of (or the obligation to create or
impose) a Lien under, any agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or their respective property is
bound, or (v) result in the termination, suspension or revocation of
any Authorization (as defined below) of the Company or any of its
subsidiaries or result in any other impairment of the rights of the
holder of any such Authorization.
(8) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is or could be a party or to
which any of their respective property is or could be subject, which
might result, singly or in the aggregate, in a Material Adverse
Effect.
(9) neither the Company nor any of its subsidiaries has
violated any Environmental Law or any provisions of ERISA, any
provisions of the Foreign Corrupt Practices Act or the rules and
regulations promulgated thereunder, except for such violations
which, singly or in the aggregate, would not be reasonably likely to
have a Material Adverse Effect;
(10) to the best of such counsel's knowledge after due inquiry,
each of the Company and its subsidiaries has such Authorizations of,
and has made all filings with and notices to, all governmental or
regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including without limitation, under any
applicable Environmental Laws,
40
as are necessary to own, lease, license and operate its respective
properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice
would not, singly or in the aggregate, have a Material Adverse
Effect. Each such Authorization is valid and in full force and
effect and each of the Company and its subsidiaries is in compliance
with all the terms and conditions thereof and with the rules and
regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred
(including the receipt of any notice from any authority or governing
body) which allows or, after notice or lapse of time or both, would
allow, revocation, suspension or termination of any such
Authorization or results or, after notice or lapse of time or both,
would result in any other impairment of the rights of the holder of
any such Authorization; and such Authorizations contain no
restrictions that are burdensome to the Company or any of its
subsidiaries; except where such failure to be valid and in full
force and effect or to be in compliance, the occurrence of any such
event or the presence of any such restriction would not, singly or
in the aggregate, have a Material Adverse Effect;
(11) to the best of such counsel's knowledge after due inquiry,
except as disclosed in the Offering Circular, there are no
contracts, agreements or understandings between the Company or the
Guarantor and any person granting such person the right to require
the Company or the Guarantor to file a registration statement under
the Act with respect to any securities of the Company or the
Guarantor or to require the Company or the Guarantor to include such
securities with any Securities registered pursuant to the Notes
Registration Statement or the Warrant Shelf Registration Statement;
(12) to the best of such counsel's knowledge after due inquiry,
the Company and its subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to all
personal property owned by them which is material to the business of
the Company and its subsidiaries, in each case, free and clear of
all Liens and defects except such as are described in the Offering
Circular or such as do not
41
materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings
held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases with, to such
counsel's knowledge, such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property
and buildings by the Company and its subsidiaries, in each case
except as described in the Offering Circular;
(13) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and
trade names ("intellectual property") currently employed by them in
---------------------
connection with the business now operated by them except where the
failure to own or possess or otherwise be able to acquire such
intellectual property would not, singly or in the aggregate, have a
Material Adverse Effect on the business, prospects, financial
condition or results of operation of the Company and its
subsidiaries, taken as a whole; and neither the Company nor any of
its subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any of such
intellectual property which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect;
(14) Neither the issuance of the Notes or Guarantee nor the
execution, delivery, and performance by either the Company or the
Guarantor of the Operative documents to which it is a party, do or
will violate, to the best of our knowledge, any order, judgment or
decree of any court or other agency of government binding on such
party.
The foregoing opinions as to enforceability and the legal, valid and
binding nature of obligations may be subject to (i) the effect of any
bankruptcy, insolvency, reorganization, moratorium, arrangement or similar laws
affecting
42
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
enforceability is considered in a proceeding in equity or at law. The opinion
of Xxxx and Xxxx LLC may be subject to other customary exceptions, assumptions
and qualifications.
(7) The Initial Purchasers shall have received on the Closing
Date an opinion, dated the Closing Date, of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, counsel for the Initial Purchasers, in form and
substance reasonably satisfactory to Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation.
(8) The Initial Purchasers shall have received, at the time
this Agreement is executed and at the Closing Date, letters dated
the date hereof or the Closing Date, as the case may be, in form and
substance satisfactory to the Initial Purchasers from each of
PricewaterhouseCoopers LLP, and Ernst & Young LLP, independent
public accountants, containing the information and statements of the
type ordinarily included in accountants' "comfort letters" to the
Initial Purchasers with respect to the financial statements and
certain financial information contained in the Offering Circular.
(9) The Initial Notes and Warrants as Units shall have been
approved by the NASD for trading and duly listed in PORTAL.
(10) The Initial Purchasers shall have received a counterpart,
conformed as executed, of the Indenture which shall have been
entered into by the Company, the Guarantor and the Trustee.
(11) The Initial Purchasers shall have received a counterpart,
conformed as executed, of the Warrant Agreement which shall have
been entered into by the Company and the Warrant Agent.
(12) The Company and the Guarantor shall have executed the
Notes Registration Rights Agreement and the Initial Purchasers shall
have received an original copy thereof, duly executed by the Company
and the Guarantor.
43
(13) The Company shall have executed the Warrant Registration
Rights Agreement and the Initial Purchasers shall have received an
original copy thereof, duly executed by the Company.
(14) Neither the Company nor the Guarantor shall have failed at
or prior to the Closing Date to perform or comply in any material
way with any of the agreements herein contained and required to be
performed or complied with by the Company or the Guarantor, as the
case may be, at or prior to the Closing Date.
(15) The Company shall have (i) granted to the Trustee for its
benefit and the ratable benefit of the Holders of the Notes a valid,
perfected and first priority security interest in the Securities
Account, the Pledged Securities (as defined in the Security
Agreement) and related collateral to secure the Company's payment
and performance of its Obligations (as defined in the Security
Agreement), and (ii) executed and delivered the Security Agreement
to evidence that security interest. The Initial Purchasers shall
have received an original copy thereof, duly executed by the
Company, the Trustee and the Securities Intermediary.
10. Effectiveness of Agreement and Termination. This Agreement shall
------------------------------------------
become effective upon the execution and delivery of this Agreement by the
parties hereto.
If on the Closing Date any one or more of the Initial Purchasers shall
fail or refuse to purchase the Units which it or they have agreed to purchase
hereunder on such date and the aggregate amount of the Units which such
defaulting Initial Purchaser or Initial Purchasers, as the case may be, agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
amount of the Units to be purchased on such date by all Initial Purchasers, each
non-defaulting Initial Purchaser shall be obligated severally, in the proportion
which the amount of the Units set forth opposite its name in Schedule B bears to
the aggregate amount of the Units which all the non-defaulting Initial
Purchasers, as the case may be, have agreed to purchase, or in such other
proportion as you may specify, to purchase the Units which such defaulting
Initial Purchaser or Initial Purchasers, as the case may be, agreed but failed
or refused to purchase on such date; provided that in no event shall the
aggregate amount of the Units which any Initial Purchaser has agreed to purchase
pursuant to Section 2 hereof be increased pursuant to this Section 10 by an
amount in excess of one-ninth of such amount of the Units 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 the Units and the
aggregate amount of the Units with respect to
44
which such default occurs is more than one-tenth of the aggregate amount of
the Units to be purchased by all Initial Purchasers and arrangements
satisfactory to the Initial Purchasers and the Company for purchase of such
the Units are not made within 48 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Initial
Purchaser and the Company. In any such case which does not result in
termination of this Agreement, either you or the Company shall have the right
to postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Offering Circular or 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 any such Initial Purchaser under this Agreement.
This Agreement may be terminated at any time on or prior to the
Closing Date by the Initial Purchasers by written notice to the Company if any
of the following has occurred: (i) any outbreak or escalation of hostilities or
other national or international calamity or crisis or change in economic
conditions or in the financial markets of the United States or elsewhere that,
in the Initial Purchasers' judgment, is material and adverse and, in the Initial
Purchasers' judgment, makes it impracticable to market the Securities on the
terms and in the manner contemplated in the Offering Circular, (ii) the
suspension or material limitation of trading in securities or other instruments
on the New York Stock Exchange, the American Stock Exchange, the Chicago Board
of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade
or the Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company or any Guarantor on any
exchange or in the over-the-counter market, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your opinion
materially and adversely affects, or will materially and adversely affect, the
business, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action by
any federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
11. Miscellaneous. Notices given pursuant to any provision of this
-------------
Agreement shall be addressed as follows: (i) if to the Company or any
Guarantor, to IWO Holdings, Inc., 000 Xxxxx Xxxx Xxxxxxxxx, Xxxxxx, Xxx Xxxx
00000, Tel: (000) 000-0000 and (ii) if to the Initial Purchasers, c/x
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, Eleven Madison Avenue,
New York, New
45
York 10010, Attention: Syndicate Department, or in any case to such other
address as the person to be notified may have requested in writing.
In this Agreement, the term "DLJ" means Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation until such time (currently anticipated to be February 1,
2001) as Credit Suisse First Boston Corporation succeeds to DLJ's business,
whether by merger, sale of assets or otherwise, at which time "DLJ" will mean
Credit Suisse First Boston Corporation, which shall be considered a successor of
DLJ hereunder and shall be treated as having assumed DLJ's obligations
hereunder, including those under Section 2.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, the Guarantor and the Initial
Purchasers set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Securities, regardless of (i) any investigation, or statement as to the
results thereof, made by or on behalf of the Initial Purchasers, the officers or
directors of the Initial Purchasers, any person controlling the Initial
Purchasers, the Company, the Guarantor, the officers or directors of the Company
or the Guarantor, or any person controlling the Company or the Guarantor, (ii)
acceptance of the Securities and payment for them hereunder and (iii)
termination of this Agreement.
If for any reason the Securities are not delivered by or on behalf of
the Company as provided herein (other than as a result of any termination of
this Agreement pursuant to Section 10 or solely by reason of a default by the
Initial Purchasers in their obligation to purchase the Securities pursuant to
Section 2 hereof, after all conditions, hereunder have been satisfied by the
Company and the Guarantor in accordance herewith) the Company and the Guarantor,
jointly and severally, agree to reimburse the Initial Purchasers for all out-of-
pocket expenses (including the fees and disbursements of counsel) incurred by
them. Notwithstanding any termination of this Agreement, the Company shall be
liable for all expenses which it has agreed to pay pursuant to Section 5(i)
hereof. The Company and the Guarantor also agree, jointly and severally, to
reimburse the Initial Purchasers and their respective officers, directors and
each person, if any, who controls such Initial Purchasers within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act for any and all fees and
expenses (including without limitation the fees and expenses of counsel)
incurred by them in connection with enforcing their rights under this Agreement
(including without limitation its rights under Section 8).
46
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Guarantor,
the Initial Purchasers, the Initial Purchasers' directors and officers, any
controlling persons referred to herein, the directors of the Company and the
Guarantor and their respective successors and assigns, all as and to the extent
provided in this Agreement, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" shall
not include a purchaser of any of the Securities from the Initial Purchasers
merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
47
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Guarantor and the Initial Purchasers.
Very truly yours,
IWO HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
INDEPENDENT WIRELESS ONE
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES
CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
CHASE SECURITIES INC.
By: /s/ Xxxxxxx Xxxxxx
------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
BNP PARIBAS SECURITIES CORP.
By: /s/ Xxxxx Xxxxxxxxx
-------------------
Name: Xxxxx Xxxxxxxxx
Title: Managing Director
UBS WARBURG LLC
By: /s/ Xxxxxxx Xxxxxx
------------------
Name: Xxxxxxx Xxxxxx
Title: Executive Director
By: /s/ F. Xxxxx Xxxxx, Jr.
-----------------------
Name: F. Xxxxx Xxxxx, Jr.
Title: Managing Director
SCHEDULE A
Initial Purchaser Number of Units
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation... 56,000,000
Chase Securities Inc.................................. 56,000,000
BNP Paribas Securities Corp........................... 24,000,000
UBS Warburg LLC....................................... 24,000,000
===========
Total................................................. 160,000,000
===========
S-1
SCHEDULE B
Subsidiaries
Independent Wireless One
Corporation
Independent Wireless One Leased Realty
Corporation
S-2
