EXHIBIT 10.8
USA MOBILE COMMUNICATIONS, INC. II
(TO BE RENAMED ARCH COMMUNICATIONS, INC.)
$130,000,000
12 3/4% SENIOR NOTES DUE 2007
PURCHASE AGREEMENT
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JUNE 24, 1998
BEAR, XXXXXXX & CO. INC.
BARCLAYS CAPITAL INC.
RBC DOMINION SECURITIES CORPORATION
BNY CAPITAL MARKETS, INC.
TD SECURITIES (USA) INC.
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
USA MOBILE COMMUNICATIONS, INC. II, a Delaware corporation to be renamed
Arch Communications, Inc. (the "Company"), proposes, subject to the terms and
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conditions stated herein, to issue and sell to Bear, Xxxxxxx & Co. Inc.,
Barclays Capital Inc., RBC Dominion Securities Corporation, BNY Capital Markets,
Inc. and TD Securities (USA) Inc. (the "Initial Purchasers") severally, an
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aggregate of $130,000,000 principal amount of the Company's 12 3/4% Senior Notes
due 2007 (the "Notes"). The Notes will be issued pursuant to an Indenture (the
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"Indenture") to be dated as of the Closing Date (as defined herein) between the
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Company and U.S. Bank Trust National Association, as trustee (in such capacity,
the "Trustee").
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The Company has prepared a preliminary offering memorandum dated June 8,
1998, a supplement thereto dated June 22, 1998 (as supplemented, the
"Preliminary Offering Memorandum") and a final offering memorandum dated June
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24, 1998 (the "Offering Memorandum") relating to and summarizing the terms of
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the Notes. The Company hereby confirms that it has authorized the use of the
Preliminary Offering Memorandum and the Offering Memorandum in connection with
the offer and sale of the Notes by the Initial Purchasers in the manner and to
the persons contemplated herein and therein (the "Offering"). Unless stated to
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the contrary, all references herein to the Offering Memorandum are to the
Offering Memorandum at the date hereof and are not meant to include any
amendment or supplement thereto subsequent to the date hereof.
The Notes are being issued and sold in connection with a series of
transactions, including: (i) the merger of Arch Communications Enterprises,
Inc. ("ACE") with and into a subsidiary ("Merger Sub") of USA Mobile
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Communications, Inc. II (the "Merger"); (ii) the repayment of (a) a portion of
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the outstanding indebtedness under a credit agreement dated May 21, 1996, as
amended,
among ACE, Arch Communications Group, Inc. ("Parent") and The Bank of New York
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("BNY"), as administrative agent (the "ACE Credit Facility") for the lenders
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thereunder, and (b) all outstanding indebtedness under a credit agreement dated
March 19, 1997, as amended, among USA Mobile Communications, Inc. II ("USAM"),
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the direct subsidiaries of USAM and BNY, as administrative agent for the lenders
thereunder (the "USAM Credit Facility"); (iii) the amendment and restatement of
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the ACE Credit Facility to create the Amended Credit Facility, as defined in the
Preliminary Offering Memorandum (the "Amended Credit Facility"); (iv) the
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termination of the USAM Credit Facility; and (v) an investment by Sandler
Capital Partners IV, L.P. and Sandler Capital Partners IV FTE, L.P. (together
with their assigns, "Sandler"), and other investors designated by Sandler, of
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$25.0 million in Parent in the form of Series C Convertible Preferred Stock of
Parent ("Series C Preferred Stock"), $24.0 million of the net proceeds of which
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Parent will contribute to the Company as an equity investment (the "Equity
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Investment").
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As used in this agreement,"Transaction Documents" shall mean, collectively,
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this Agreement, the Indenture, the Exchange and Registration Rights Agreement
(as defined herein), the Merger Agreement (as defined herein) and the Amended
Credit Facility.
None of the Notes have been registered under the Securities Act of 1933, as
amended (the "Securities Act"), and the Notes are being offered and sold in
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reliance on exemptions from or in transactions not subject to the registration
requirements of the Securities Act, including sales by the Initial Purchasers to
"qualified institutional buyers" ("QIBs") as defined in, and in reliance on,
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Rule 144A under the Securities Act ("Rule 144A").
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The Initial Purchasers and other holders of the Notes will have, with
respect to the Notes, the registration rights set forth in the Exchange and
Registration Rights Agreement, dated as of the Closing Date, in substantially
the form of Exhibit A hereto (the "Exchange and Registration Rights Agreement").
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Pursuant to the Exchange and Registration Rights Agreement, the Company will
agree, among other things, to file with the Securities and Exchange Commission
(the "Commission") under the circumstances set forth therein (i) a registration
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statement under the Securities Act with respect to which Notes (the "Registered
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Notes") issued under the Indenture will be offered in exchange for the then
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outstanding Notes and to use its best efforts to cause such registration
statement to be declared effective and (ii) under certain circumstances, a shelf
registration statement pursuant to Rule 415 under the Securities Act relating to
the resale of the Notes by holders thereof and to use its best efforts to cause
such shelf registration statement to be declared effective.
1. Representations and Warranties of the Company. The Company represents
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and warrants to the Initial Purchasers that:
(a) The Preliminary Offering Memorandum as of its date and the date of
the supplement thereto did not and the Offering Memorandum as of the date hereof
and as of the Closing Date does not contain and will not contain any untrue
statement of a material fact or omit to state a material fact (except, in the
case of the Preliminary Offering Memorandum, for pricing terms and other pricing
related terms intentionally left blank) necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this
paragraph (a) do not apply to statements or omissions in the Offering Memorandum
based
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upon the information referred to in Section 7(b) furnished to the Company in
writing by, or on behalf of, the Initial Purchasers expressly for use therein.
(b) The Company and each of its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of its respective jurisdiction of incorporation with full corporate power
and authority to carry on its business as it is currently being conducted and to
own, lease and operate its properties, and 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, individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), results of operations, business or prospects
of the Company and its subsidiaries taken as a whole.
(c) The Merger and the Agreement and Plan of Merger to be dated as of
the Closing Date among ACE, Merger Sub and USAM (the "Merger Agreement") has
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been duly authorized by all necessary corporate action on the part of each of
ACE, Merger Sub and USAM, including, to the extent required by applicable law,
all action by their respective boards of directors and stockholders, and when
executed and delivered by ACE, Merger Sub and USAM, will be a valid and binding
agreement of each of ACE, Merger Sub and USAM enforceable in accordance with its
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance 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. The
Merger, the Merger Agreement and the consummation of the transactions
contemplated thereby will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default (or an
event which, with notice or lapse of time or both, would constitute such a
default) under, any indenture, mortgage, deed or trust, loan agreement or other
agreement or instrument to which ACE, Merger Sub or USAM is a party or by which
any of them is bound or to which any of the property or assets of any of them is
subject except as would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), results of operations,
business or prospects of the Company and its subsidiaries taken as a whole, (ii)
result in any violation of the provisions of the certificate of incorporation,
by-laws or other governing documents of ACE, Merger Sub or USAM, (iii) result in
the violation of any law or statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over ACE, Merger Sub or
USAM or any of their properties or assets or (iv) result in the creation or
imposition of any lien, charge, claim or encumbrance upon any property or asset
of ACE, Merger Sub or USAM except in the case of this clause (iv) as described
in the Offering Memorandum or as would not, individually or in the aggregate,
have a material adverse effect on the condition (financial or otherwise),
results of operations, business or prospects of the Company and its subsidiaries
taken as a whole.
(d) Each of the Stock Purchase Agreement among Sandler, Parent and the
other investors to be dated as of the Closing Date (the "Stock Purchase
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Agreement") and the Equity Investment has been duly authorized by all necessary
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corporate action on the part of Parent, including, to the extent required by
applicable law, all action of Parent's board of directors and stockholders, and
when executed and delivered by Parent, will be a valid and
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binding agreement of Parent enforceable in accordance with its terms except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance 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. Neither the Stock
Purchase Agreement and the consummation of the transactions contemplated thereby
nor the Equity Investment will (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default (or an
event which, with notice or lapse of time or both, would constitute such a
default) under, any indenture, mortgage, deed or trust, loan agreement or other
agreement or instrument to which Parent is a party or by which it is bound or to
which any of the property or assets of Parent is subject, (ii) result in any
violation of the provisions of the certificate of incorporation, by-laws or
other governing documents of Parent, (iii) result in the violation of any law or
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over Parent or any of its properties or assets, (iv)
result in the creation or imposition of any lien, charge, claim or encumbrance
upon any property or asset of Parent, (v) require registration of the Series C
Preferred Stock under the Securities Act or (vi) require any other consent,
approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body which consent has not been
received (except as such may be required under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976).
(e) The Notes have been duly authorized by the Company for issuance
and sale pursuant to this Agreement and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to the Initial
Purchasers against payment therefor as provided by this Agreement, the Notes
will be entitled to the benefits of the Indenture, 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,
fraudulent conveyance 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.
(f) The Registered Notes have been duly authorized by the Company for
issuance and sale pursuant to this Agreement and the Exchange and Registration
Rights Agreement and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to the holders of the Notes being
exchanged therefor, the Registered Notes will be entitled to the benefits of the
Indenture, 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, fraudulent conveyance 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.
(g) This Agreement has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company enforceable in
accordance with its terms except as (i) rights to indemnity and contribution
hereunder may be limited by applicable law, (ii) the enforceability thereof may
be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws
affecting creditors' rights generally and (iii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
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principles of general applicability, and its consummation will not (A) conflict
with or result in a breach or violation of any of the terms or provisions of, or
constitute a default (or an event which, with notice or lapse of time or both,
would constitute such a default) under, any indenture, mortgage, deed or trust,
loan agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which it or they are bound or to which any of
their respective property or assets is subject, (B) result in any violation of
the provisions of the certificates of incorporation, by-laws or other governing
documents of the Company or any of its subsidiaries, (C) result in the violation
of any law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets or (D) result in
the creation or imposition of any lien, charge, claim or encumbrance upon any
respective property or asset of the Company or any of its subsidiaries.
(h) Each of the Indenture, the Exchange and Registration Rights
Agreement and the Amended Credit Facility has been duly authorized by the
Company and, when executed and delivered by the Company on the Closing Date,
will be a valid and binding agreement of the Company, enforceable in accordance
with its terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance 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, and their consummation will not (A) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default (or an event which, with notice or lapse of time or both, would
constitute such a default) under, any indenture, mortgage, deed or trust, loan
agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or they are bound or to which any of
their respective property or assets is subject, (B) result in any violation of
the provisions of the certificates of incorporation, by-laws or other governing
documents of the Company or any of its subsidiaries, (C) result in the violation
of any law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets or (D) result in
the creation or imposition of any lien, charge, claim or encumbrance upon any
respective property or asset of the Company or any of its subsidiaries.
(i) The Amended Credit Facility has been duly authorized by Arch
Paging, Inc. ("API") as borrower and by Parent and the subsidiaries of the
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Company as guarantors thereof (collectively, the "Amended Credit Facility
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Parties") and, when executed and delivered by the Amended Credit Facility
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Parties, will be a valid and binding agreement of the Amended Credit Facility
Parties, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance 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, and will not (A) conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default (or an event which, with notice or lapse of time or both,
would constitute such a default) under, any indenture, mortgage, deed or trust,
loan agreement or other agreement or instrument to which any of the Amended
Credit Facility Parties is a party or by which they are bound or to which any of
their respective property or assets is subject, (B) result in any violation of
the provisions of the certificates of incorporation, by-laws or other governing
documents of any of the Amended Credit Facility
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Parties, (C) result in the violation of any law or statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
any of the Amended Credit Facility Parties or any of their respective properties
or assets or (D) result in the creation or imposition of any lien, charge, claim
or encumbrance upon any respective property or asset of any of the Amended
Credit Facility Parties except under or as contemplated by the Amended Credit
Facility.
(j) The Company and certain of its subsidiaries (the "Tower Sellers")
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have duly entered into the Asset Purchase and Sale Agreement (the "Tower Site
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Sale Agreement") dated as of April 10, 1998 among the Company, the Tower Sellers
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and OmniAmerica, Inc., which agreement is in full force and effect on and as of
the date hereof. The Tower Site Sale Agreement has been duly executed and
delivered by the Company and the Tower Sellers and is the valid and binding
agreement of the Company and the Tower Sellers, enforceable against the Company
and the Tower Sellers in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance 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.
(k) The Notes conform as to legal matters to the description thereof
contained in the Offering Memorandum.
(l) Neither the Company nor any of its subsidiaries is in violation of
its respective certificate of incorporation or by-laws or in default (and no
condition exists which, with notice or lapse of time or both, would constitute a
default) in the performance of any obligation, agreement or condition contained
in any bond, debenture, note or any other evidence of indebtedness or in any
other agreement, indenture or instrument material to the conduct of the business
of the Company and its subsidiaries to which the Company or its subsidiaries is
a party or by which the Company or its subsidiaries or their respective property
is bound, in each case other than such violation or default as would not have a
material adverse effect on the condition (financial or otherwise), results of
operations, business or prospects of the Company and its subsidiaries, taken as
a whole.
(m) The execution, delivery and performance of the Merger Agreement,
this Agreement, the Indenture and the Notes and compliance by the Company and
each of its subsidiaries with all the provisions hereof and thereof, as the case
may be, and the consummation of the transactions contemplated hereby and thereby
will not require any consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other governmental body which
consent has not been received (except as such may be required under the
securities or "blue sky" laws of the various states of, or jurisdictions
outside, the United States).
(n) The execution, delivery and performance of the Merger Agreement
and compliance by each of ACE, Merger Sub and USAM with all the provisions
hereof and thereof, as the case may be, and the consummation of the transactions
contemplated hereby and thereby will not require any consent, approval,
authorization or other order of any court, regulatory body, administrative
agency or other governmental body which consent has not
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been received (except as such may be required under the securities or "blue sky"
laws of the various states of, or jurisdictions outside, the United States).
(o) The execution, delivery and performance of the Exchange and
Registration Rights Agreement and the Registered Notes and compliance by the
Company with all the provisions thereof and the consummation of the
transactions contemplated thereby will not require any consent, approval,
authorization or other order of any court, regulatory body, administrative
agency or other governmental body (except as such may be required under the
Securities Act, the Trust Indenture Act of 1939, as amended (the "Trust
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Indenture Act"), or the securities or "blue sky" laws of the various states of,
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or jurisdictions outside, the United States).
(p) Except as set forth in the Offering Memorandum, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which their respective property is the subject
that would be required to be disclosed by Item 103 of Regulation S-K promulgated
by the Commission or otherwise, and, to the Company's knowledge, no such
proceedings are threatened or contemplated.
(q) Except as would not have a material adverse effect on the
condition (financial or otherwise), results of operations, business or prospects
of the Company and its subsidiaries, taken as a whole, or otherwise be required
to be disclosed in a registration statement under the Securities Act, or as
disclosed in the Offering Memorandum, (i) neither the Company nor any of its
subsidiaries is in violation of any federal, state or local laws and regulations
relating to pollution or protection of human health or the environment or the
use, treatment, storage, disposal, transport or handling, emission, discharge,
release or threatened release of toxic or hazardous substances, materials or
wastes, or petroleum and petroleum products ("Materials of Environmental
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Concern") (collectively, "Environmental Laws"), including, without limitation,
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noncompliance with or lack of any permits or other environmental authorizations,
and (ii) (A) neither the Company nor any of its subsidiaries has received any
communication from any person or entity alleging any violation of or
noncompliance with any Environmental Laws, and there are no past or present
circumstances known to the Company that could be reasonably expected to lead to
any such violation in the future, (B) there is no pending or, to the Company's
knowledge, threatened claim, action, investigation or notice by any person or
entity against the Company or any of its subsidiaries or against any person or
entity for whose acts or omissions the Company or any of its subsidiaries is
liable, either contractually or by operation of law, alleging liability for
investigatory, cleanup, or governmental response costs, or natural resources or
property damages, or personal injuries, attorney's fees or penalties relating to
any Materials of Environmental Concern or any violation or potential violation,
of any Environmental Law (collectively, "Environmental Claims"), and (C) there
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are no existing actions, activities, circumstances, conditions, events or
incidents that could be reasonably expected to form the basis of any such
Environmental Claim.
(r) Except as disclosed in the Offering Memorandum, the Company and
each of its subsidiaries has such permits, licenses, franchises and
authorizations of governmental or regulatory authorities ("Permits"), including,
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without limitation, under any applicable Environmental Laws, as are necessary to
own, lease and operate its properties and to conduct their respective businesses
except those Permits, the absence of which would not,
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individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), results of operations, business or prospects
of the Company and its subsidiaries taken as a whole; the Company and each of
its subsidiaries has fulfilled and performed all of their respective obligations
with respect to such Permits and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination thereof which
might have a material adverse effect on the condition (financial or otherwise),
results of operations, business or prospects of the Company and its
subsidiaries, taken as a whole, and such Permits contain no restrictions that
materially interfere with the business or operations of the Company and its
subsidiaries as currently conducted.
(s) Except as otherwise set forth in the Offering Memorandum or such
as are not material to the condition (financial or otherwise), results of
operations, business or prospects of the Company and its subsidiaries, taken as
a whole, the Company and each of its subsidiaries has good and marketable title,
free and clear of all liens, claims, encumbrances and zoning, use and other
restrictions, except liens for taxes not yet due and payable, to all real and
other property and assets described in the Offering Memorandum as being owned by
the Company and its subsidiaries and the Company and each of its subsidiaries
enjoys peaceful and undisturbed possession of all such real and other property
and other assets with such liens, claims, encumbrances and restrictions as do
not materially interfere or threaten to materially interfere with the use made
or proposed to be made by the Company and its subsidiaries. All leases to which
the Company or its subsidiaries is a party are valid and binding and no default
by the Company or its subsidiaries, or to the knowledge of the Company, by any
other party, has occurred or is continuing thereunder, which might result in any
material adverse effect on the condition (financial or otherwise), results of
operations, business or prospects of the Company and its subsidiaries, taken as
a whole, and the Company and each of its subsidiaries enjoys peaceful and
undisturbed possession under all such leases with such exceptions as do not
materially interfere with the use made or proposed to be made by the Company or
its subsidiaries.
(t) The Company and each of its subsidiaries maintains, with insurers
of recognized standing, reasonably adequate insurance against property and
casualty loss, general liability, business interruption and such other losses
and risks, in each case, in such amounts as are prudent and customary in the
respective businesses in which the Company and each of its subsidiaries is
engaged.
(u) Xxxxxx Xxxxxxxx LLP are independent public accountants with
respect to the Company within the meaning of the Securities Act.
(v) The financial statements of the Company, including the notes
thereto, contained in the Offering Memorandum present fairly the respective
financial position, results of operations and cash flows of the Company, as of
the respective dates and for the respective periods to which they apply, and
have been prepared in accordance with generally accepted accounting principles
("GAAP") and the requirements of Regulation S-X promulgated by the Commission
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that would be applicable if the Offering Memorandum were a prospectus included
in a registration statement on Form S-1 filed under the Securities Act. The
summary and selected historical financial data included in the Offering
Memorandum are accurately presented and have been derived from, and prepared on
a basis consistent with, the respective financial statements and the books and
records of the Company. All
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other financial and statistical data relating to the Company included in the
Offering Memorandum are accurately presented and are derived from, and prepared
on a basis consistent with, the respective financial statements and the books
and records of the Company.
(w) All of the outstanding shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and nonassessable and
are owned of record (directly or indirectly) and beneficially by Parent. All of
the outstanding shares of capital stock of each of the subsidiaries of the
Company have been duly authorized and validly issued, are fully paid and
nonassessable and, except as set forth in Schedule III, are owned of record and
beneficially by the Company, subject to the stock pledges disclosed in the
Offering Memorandum.
(x) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens related to or
entitling any person to purchase or otherwise to acquire any shares of the
capital stock of, or other ownership interest in, the Company, except as
disclosed in the Offering Memorandum.
(y) Except as disclosed in the Offering Memorandum, there are no
business relationships or related party transactions that would be required to
be disclosed therein by Item 404 of Regulation S-K promulgated by the
Commission.
(z) Subsequent to the respective dates as of which information is
given in the Offering Memorandum (or, if the Offering Memorandum is not in
existence, the most recent Preliminary Offering Memorandum), (i) neither the
Company nor any of its subsidiaries has incurred any liability or obligation,
direct or contingent, nor entered into any transaction not in the ordinary
course of business, in either case which is material to the Company and its
subsidiaries taken as a whole, and (ii) there has not been any material change
in the short-term debt or long-term debt of the Company or any of its
subsidiaries, except in each case for additional borrowings under the USAM
Credit Facility, ACE Credit Facility or, on the Closing Date, the Amended Credit
Facility, in the ordinary course of business and except as described in or
contemplated by the Offering Memorandum (or, if the Offering Memorandum is not
in existence, the most recent Preliminary Offering Memorandum).
(aa) There is (i) no unfair labor practice complaint pending against
the Company or its subsidiaries or, to the knowledge of the Company, threatened
against the Company or its subsidiaries, before the National Labor Relations
Board or any state or local labor relations board, and no grievance or
arbitration proceeding arising out of or under any collective bargaining
agreement is pending against the Company or its subsidiaries or, to the
knowledge of the Company, threatened against it, and (ii) no strike, labor
dispute, work rule or other slowdown, job action or stoppage pending against the
Company or its subsidiaries or, to the knowledge of the Company, threatened
against it except for such matters specified in clause (i) or (ii) above, which,
singly or in the aggregate, would not have a material adverse effect on the
condition (financial or otherwise), results of operations, business or prospects
of the Company and its subsidiaries, taken as a whole.
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(bb) 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.
(cc) All tax returns required to be filed by the Company and each of
its subsidiaries in any jurisdiction have been filed, other than those filings
being contested in good faith, and all taxes, including withholding taxes,
penalties and interest, assessments, fees and other charges due pursuant to such
returns or pursuant to any assessment received by the Company and each of its
subsidiaries have been paid, other than those being contested in good faith and
for which adequate reserves have been provided. The Company will not incur any
federal, state or local income, franchise or other taxes as a result of the
Merger which are material to the Company and its subsidiaries taken as a whole.
(dd) The Company and each of its subsidiaries own or possess, or can
acquire on reasonable terms, all material patents, patent applications,
trademarks, service marks, trade names, licenses, copyrights and proprietary or
other confidential information currently employed by them in connection with its
business, and neither the Company nor any of its subsidiaries has received any
notice of infringement of or conflict with asserted rights of any third party
with respect to any of the foregoing which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in any
material adverse effect on the condition (financial or otherwise), results of
operations, business or prospects of the Company or its subsidiaries except as
described in the Offering Memorandum.
(ee) The Company does not intend to incur debts beyond its ability to
pay such debts as they mature, taking into account the timing and the amounts of
cash to be received by the Company and the timing and the amounts of cash to be
payable on or in respect of the Company's indebtedness.
(ff) The Notes are eligible for resale to QIBs pursuant to Rule 144A
and, when issued, will not be of the same class (within the meaning of Rule
144A(d)(3)) as any securities (i) listed on a national securities exchange
registered under Section 6 of the United States Securities Exchange Act of 1934,
as amended (the "Exchange Act"), or (ii) quoted on any United States "automated
------------
inter-dealer quotation system" (as such term is used in the Exchange Act) in the
United States.
(gg) Neither the Company, any of its affiliates (as used in this
Agreement, such term shall have the meaning set forth in Rule 501(b) under the
Securities Act) nor any person authorized to act on behalf of any such person
(it being understood that no representation is given as to the Initial
Purchasers and their respective affiliates) has, directly or indirectly, (i)
sold, offered for sale, solicited offers to buy or otherwise negotiated in
respect of, any security (as defined in the Securities Act) which is or could be
integrated with the sale of the Notes in a manner that would require the
registration of any of the Notes
-10-
under the Securities Act or (ii) engaged in any form of general solicitation or
general advertising (as such terms are defined in Rule 502(c) under the
Securities Act) in connection with the Offering.
(hh) None of the Company, any of its affiliates or any person acting
on its or their behalf (it being understood that no representation is given as
to the Initial Purchasers and their respective affiliates) has engaged in any
directed selling efforts within the meaning of Rule 902 under the Securities Act
with respect to any Notes to be sold in reliance on Regulation S, and each of
the Company, its affiliates and persons acting on its or their behalf (it being
understood that no representation is given as to the Initial Purchasers and
their respective affiliates) has complied with Rule 903 under the Securities Act
with respect to any Notes to be sold in reliance on Regulation S.
(ii) Subject to compliance by the Initial Purchasers with the
representations, warranties, covenants and the procedures set forth in Sections
3 and 4 hereof, it is not necessary in connection with the offer, sale and
delivery of the Notes to the Initial Purchasers in the manner contemplated by
this Agreement and the Offering Memorandum to register the Notes under the
Securities Act or to qualify the Indenture under the Trust Indenture Act.
(jj) The Company is not, or upon consummation of the transactions
contemplated under this Agreement, the Exchange and Registration Rights
Agreement and the Indenture will be, an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "Investment Company Act"), or be subject to
----------------------
registration under the Investment Company Act.
(kk) All of the representations and warranties of the Company and the
Tower Sellers contained in the Tower Site Sale Agreement were true and correct
on the date thereof and are true and correct on the date hereof, except where
the inaccuracy of such statements would not (i) reasonably be expected to have a
material adverse effect on the condition (financial or otherwise), results of
operations, business or prospects of the Company, (ii) cause the Offering
Memorandum to contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (iii) constitute a
failure of condition that would relieve the other parties to the Tower Site Sale
Agreement of their obligation to consummate substantially all of the
transactions contemplated by the Tower Site Sale Agreement.
(ll) The execution and delivery of this Agreement, the Exchange and
Registration Rights Agreement and the Indenture and the sale of the Notes to the
Initial Purchasers or by the Initial Purchasers to other purchasers of the Notes
will not involve any prohibited transaction within the meaning of Section 406 of
the Employee Retirement Income Security Act of 1974, as amended, or the rules
and regulations promulgated thereunder ("ERISA") or Section 4975 of the Internal
-----
Revenue Code of 1986, as amended, or the rules and regulations promulgated
thereunder (the "Code"). The representation made by the Company in the
----
preceding sentence is made in reliance upon and subject to the accuracy of, and
compliance with, the representations and covenants made or deemed made by
purchasers of the Notes (other than the Initial Purchasers) as set forth in the
Offering Memorandum under the section entitled "Notice to Investors."
-11-
(mm) Neither the Company nor its subsidiaries or affiliates or any
person acting on its or their behalf, has taken, nor will it or any of them or
any such person take, directly or indirectly, any action designed to cause or
result in, or which constitutes or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of the Notes to
facilitate the sale or resale of the Notes.
(nn) Subsequent to the respective dates as of which information is
given in the Offering Memorandum, except as set forth therein, (i) neither the
Company nor its subsidiaries has sustained any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, and (ii) there has not been any material adverse change in the
business, prospects, properties, operations, condition (financial or other) or
results of operations of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of business.
2. Purchase, Sale and Delivery of the Notes.
----------------------------------------
(a) Subject to the terms and conditions herein set forth and on the
basis of the representations, warranties, covenants and agreements herein
contained, the Company agrees to sell to the several Initial Purchasers, and the
Initial Purchasers agree to purchase, severally and not jointly, from the
Company, the aggregate principal amount of Notes set forth opposite such Initial
Purchasers' names in Schedule I hereto at a purchase price equal to 95.108% of
----------
the principal amount thereof.
(b) Subject to the terms and conditions herein set forth, payment of
the purchase price for, and delivery of, the Notes shall be made at the offices
of Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx at 9:00 a.m. (New
York time), unless postponed as a result of the failure of the Company to
satisfy any of the conditions set forth in Section 6 hereof, on June 29, 1998 or
at such other time or on such other date as shall be mutually agreed in writing
between the Company and the Initial Purchasers (the time and date of such
payment and delivery being herein called the "Closing Date"). At least 24 hours
------------
prior to the Closing Date, the Company shall execute and deliver the Notes for
authentication in definitive form and in such denominations and registered in
such names as the Initial Purchasers may request in writing not less than 36
hours prior to the Closing Date. The Notes shall be represented by one
permanent global note, which may be subdivided ("Global Notes"), in definitive
------------
form, registered in the name of Cede & Co., as nominee of The Depository Trust
Company ("DTC"), for the account or accounts of participants in the DTC system
---
(including Xxxxxx Guaranty Trust Company of New York, Brussels office, as
operator of the Euroclear System ("Euroclear") and Cedel Bank, Societe Anonyme
---------
("Cedel Bank"), as the case may be) having an aggregate principal amount
----------
corresponding to the aggregate principal amount of the Notes purchased by the
Initial Purchasers hereunder, which will be deposited by or on behalf of the
Company with DTC or its designated custodian. Against delivery of the Notes to
the Initial Purchasers, which will be accomplished by causing DTC to credit the
respective accounts of the Initial Purchasers, the Initial Purchasers shall pay
or cause to be paid to the Company the purchase price for the Notes, which
payment shall be made to the Company by wire transfer or certified or official
bank check or checks drawn in federal funds or similar immediately available
funds to the order of the Company.
-12-
3. Subsequent Offers and Resales of the Notes. The Initial Purchasers
------------------------------------------
and the Company hereby establish and agree to observe the following procedures
in connection with the offer and sale of the Notes:
(a) Each Initial Purchaser has advised the Company that it proposes to
offer the Notes for resale upon the terms and conditions set forth in this
Agreement and the Offering Memorandum. Each Initial Purchaser understands that
the Notes have not been and, other than pursuant to the Company's obligations
under the Exchange and Registration Rights Agreement, will not be registered
under the Securities Act. Each Initial Purchaser agrees that it has not and
will not take, and acknowledges that the Company has not taken, any action that
would permit a public offering of the Notes in any jurisdiction and further
agrees that, with respect to the offer or sale of any Notes or the delivery or
distribution of any Offering Memorandum, it will comply with applicable laws and
regulations in any jurisdiction in which it acquires, offers, sells or delivers
the Notes or distributes the Offering Memorandum to which it is subject.
(b) Each Initial Purchaser represents and warrants that (i) it is a
"qualified institutional buyer" within the meaning of Rule 144A and (ii) that
neither it nor any of its affiliates nor any person acting on behalf of any such
person has engaged or will engage in any general solicitation or general
advertising, as such terms are defined in Rule 502(c) under the Securities Act,
in connection with the offer or sale of the Notes.
(c) Each Initial Purchaser represents and warrants that in connection
with the initial resale of the Notes, it has solicited and will solicit offers
for the Notes only from persons whom it reasonably believes to be QIBs and that
it will send a copy of the Offering Memorandum (including any amendment or
supplement thereto) to each purchaser of the Notes in connection with written
confirmation of the sale of the Notes to such person.
4. Agreements of the Company. The Company covenants and agrees with the
-------------------------
Initial Purchasers that:
(a) The Company will make no further amendment or supplement to the
Offering Memorandum except as permitted herein; and if at any time prior to the
earlier of (i) the completion of the distribution of the Notes by the Initial
Purchasers or (ii) 180 days after the Closing Date any event shall have occurred
as a result of which the Offering Memorandum, as then amended or supplemented,
would, in the judgment of the Initial Purchasers or the Company, include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, each Initial Purchaser or the Company, as the
case may be, will promptly notify the other and the Company will promptly
prepare and deliver to the Initial Purchasers an amendment or supplement that
will correct such untrue statement or omission.
(b) The Company shall advise the Initial Purchasers promptly and, if
requested, will confirm such advice in writing, (i) of any proposal to amend or
supplement the Offering Memorandum and will afford the Initial Purchasers a
reasonable opportunity to comment on any such proposed amendment or supplement,
(ii) of receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in
-13-
any jurisdiction or the initiation or threat of any proceeding for that purpose
and (iii) of any downgrading in the rating accorded the Notes by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Securities Act, an "NRSRO"), or any public announcement that
-----
any such organization has under surveillance or review its rating of the Notes
(other than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading of such rating) as soon as the
Company learns of any such downgrading or announcement.
(c) The Company will promptly deliver to the Initial Purchasers,
without charge, such number of copies of the Offering Memorandum and all
amendments of and supplements thereto as the Initial Purchasers may reasonably
request.
(d) Whether or not required by the rules and regulations of the
Commission, so long as any Notes are outstanding and so long as the Indenture so
requires, the Company will (i) furnish holders of the Notes (A) all quarterly
and annual financial information that would be required to be contained in a
filing with the Commission on Forms 10-Q and 10-K, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and,
with respect to the annual information only, a report thereon by the Company's
certified independent accountants, and (B) all financial information that would
be required to be included in a Form 8-K filed with the Commission, and (ii)
file a copy of all such information and reports with the Commission for public
availability (unless the Commission will not accept such a filing) and to make
such information available to investors or potential investors in the Company's
debt securities who request it in writing.
(e) During the period referred to in paragraph (d), the Company will
furnish to the Initial Purchasers as soon as available a copy of each report or
other publicly available information of the Company mailed to the security
holders of the Company or filed with the Commission and such other publicly
available information concerning the Company as the Initial Purchasers may
reasonably request.
(f) Without the prior consent of Bear, Xxxxxxx & Co. Inc., prior to
the expiration of 180 days after the date of the Offering Memorandum the Company
will not offer, sell, contract to sell or otherwise dispose of any note or
debenture similar to the Notes having a maturity of more than one year (other
than the Registered Notes).
(g) The Company shall do and perform, or cause to be done or
performed, all things required or necessary to be done and performed under this
Agreement by the Company prior to the Closing Date and to satisfy all conditions
precedent to the delivery of the Notes.
(h) The Company shall use its best efforts in cooperation with the
Initial Purchasers to (i) permit the Notes to be eligible for clearance and
settlement through the facilities of DTC, Euroclear and Cedel Bank and (ii)
include quotation of the Notes on the Private Offerings, Resales and Trading
through Automated Linkages ("PORTAL") Market of the National Association of
------
Securities Dealers, Inc.
-14-
(i) The Company will use its best efforts to take such actions as are
necessary to enable Standard & Poor's Corporation ("S&P") and Xxxxx'x Investors
---
Service, Inc. ("Moody's") to provide their respective initial credit ratings on
-------
the Notes.
(j) None of the Company, any of its affiliates or any person acting on
behalf of any of them (it being understood that no representation is given as to
the conduct of the Initial Purchasers and their respective affiliates) will
solicit any offer to buy or offer to sell the Notes by means of any form of
general solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act, except in
either case as contemplated by the Exchange and Registration Rights Agreement.
(k) None of the Company, any of its affiliates or any person acting on
behalf of any of them (it being understood that no representation is given as to
the conduct of the Initial Purchasers and their respective affiliates) will,
directly or indirectly, offer, sell, solicit offers to buy or sell or otherwise
negotiate in respect of any security (as defined in the Securities Act) which
will be integrated with the sale of any of the Notes in a manner that would
require the registration of any of the Notes under the Securities Act.
(l) During the period of two years after the Closing Date (or such
other period as the Notes in general constitute "restricted securities" within
the meaning of Rule 144 under the Securities Act) it will, upon request, furnish
to the Initial Purchasers and any holder of Notes a copy of the restrictions on
transfer applicable to the Notes.
(m) The Company will not, and will not permit any of its affiliates
to, resell any of the Notes that have been acquired by any of them and that
constitute "restricted securities" within the meaning of Rule 144 of the
Securities Act, except outside the United States in accordance with Regulation
S, pursuant to an exemption from the registration requirements of the Securities
Act or in a transaction registered under the Securities Act.
(n) Neither the Company nor any of its affiliates has or will, either
alone or with one or more other persons, bid for or purchase for any account in
which it or any of its affiliates has a beneficial interest any Notes or attempt
to induce any person to purchase any Notes, and neither the Company nor any of
its affiliates will make bids or purchase Notes for the purpose of creating
actual, or apparent, active trading in, or of raising the price of, the Notes.
(o) Each of the Notes will bear a legend substantially in the form
contained in the section captioned "Notice to Investors" in the Offering
Memorandum for the time period and upon the other terms stated therein;
provided, however, that such legend will be removed upon request to the Trustee
or the security registrar under the Indenture after such Notes are resold
pursuant to a registration statement that has been declared effective by the
Commission under the Securities Act.
(p) For so long as any of the Notes constitute "restricted securities"
within the meaning of Rule 144(a)(3) under the Securities Act, the Company will
make available to any holder of the Notes or to any prospective purchaser of the
Notes designated by any holder, upon request of such holder or prospective
purchaser, information required to be
-15-
provided by Rule 144A(d)(4) under the Securities Act if at the time of such
request the Company is not subject to the reporting requirements under Section
13 or 15(d) of the Exchange Act.
(q) The Company will use the proceeds from the sale of the Notes in
the manner described in the Offering Memorandum under the caption "Use of
Proceeds."
(r) The Company will comply with the agreements in the Transaction
Documents to which it is a party except where the failure to comply would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), results of operations, business or prospects
of the Company and its subsidiaries taken as a whole.
5. Expenses. The Company will pay all costs and expenses incident to the
--------
performance of its obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 11 hereof, including all costs and expenses incident to (a)
the printing or other production of documents with respect to the transactions,
including all costs of printing any Preliminary Offering Memorandum and the
Offering Memorandum, (b) all arrangements relating to the delivery to the
Initial Purchasers of copies of the foregoing documents, (c) the fees and
disbursements of the counsel, the accountants and any other experts or advisors
retained by the Company, (d) preparation, issuance and delivery to the Initial
Purchasers of any certificates evidencing the Notes, (e) the qualification of
the Notes under state or foreign securities or "blue sky" laws, including filing
fees and reasonable fees and disbursements of counsel for the Initial Purchaser
relating thereto, (f) the fees paid to rating agencies in connection with the
Notes, (g) the quotation of the Notes on PORTAL, (h) "roadshow" travel and other
expenses incurred in connection with the marketing and sale of the Notes, (i)
the fees and expenses of the Trustee and any agent of the Trustee and the
reasonable fees and disbursements of counsel for the Trustee and (j) the costs
and charges of DTC, and, if any, Euroclear and Cedel Bank.
6. Conditions to Initial Purchasers' Obligations. The obligation of the
---------------------------------------------
Initial Purchasers to purchase the Notes under this Agreement is subject to the
satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in
this Agreement shall be true and correct on the Closing Date with the same force
and effect as if made on and as of the Closing Date.
(b) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have been any downgrading, nor shall
any notice have been given of any intended or potential downgrading in the
rating accorded any of the Company's or Parent's securities by any NRSRO, or any
public announcement that any such organization has under surveillance or review
its rating of any such securities (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading of such rating).
-16-
(c) (i) Since the date of the latest balance sheet included in the
Offering Memorandum, there shall not have been any material adverse change, or
any development involving a prospective material adverse effect on the condition
(financial or otherwise), results of operations, business or prospects of the
Company, whether or not arising in the ordinary course of business, except as
otherwise described in the Offering Memorandum, (ii) since the date of the
latest balance sheet included in the Offering Memorandum there shall not have
been any material change, or any development reasonably likely to involve a
prospective material adverse change, in the long-term debt of the Company from
that set forth in the Offering Memorandum, except as otherwise described in the
Offering Memorandum, (iii) the Company shall have no liability or obligation,
direct or contingent, which would be required to be disclosed in a final
prospectus filed under Rule 424(b) under the Securities Act, other than those
set forth in the Offering Memorandum and (iv) on the Closing Date the Initial
Purchaser shall have received a certificate dated the Closing Date, signed by
Xxxxxx X. Xxxxxxx, in his capacity as President and Chief Operating Officer of
the Company, and by J. Xxx Xxxxxx, in his capacity as Executive Vice President
and Chief Financial Officer of the Company, confirming the matters set forth in
paragraphs (a), (b), (c) and (j) of this Section 6.
(d) The Initial Purchasers shall have received on the Closing Date an
opinion (in the form and substance satisfactory to the Initial Purchasers and
counsel for the Initial Purchasers), dated the Closing Date, of Xxxx and Xxxx
LLP, counsel for the Company, to the effect set forth in Exhibit B hereto.
---------
(e) The Initial Purchasers shall have received on the Closing Date an
opinion (in the form and substance satisfactory to the Initial Purchasers and
counsel for the Initial Purchasers), dated the Closing Date, of Xxxxx X. Xxxxxx,
general counsel for the Company, to the effect set forth in Exhibit C hereto.
---------
(f) The Initial Purchasers shall have received an opinion, dated the
Closing Date, of Wilkinson, Barker, Xxxxxx & Xxxxx, LLP, special
telecommunications regulatory counsel for the Company, to the effect that to
such counsel's knowledge, the Company and its subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal
telecommunications authorities material to the operations of the Company and its
subsidiaries, taken as a whole and as presently conducted, and such counsel has
no knowledge of either the Company or any of its subsidiaries receiving any
notice of proceedings relating to the revocation or involuntary modification of
any such certificate, authorization or permit.
Such counsel shall also state, that as special telecommunications
regulatory counsel to the Company and its subsidiaries, it believes that the
information and statements contained in the Offering Memorandum under the
headings "Risk Factors -- Government Regulation, Foreign Ownership and Possible
Redemption" (to the extent that the discussion in this section pertains to the
federal telecommunications laws and regulations) and "Business -- Regulation"
insofar as such statements constitute a summary of the legal matters, documents
or proceedings referred to therein, provide a fair summary of such legal
matters, documents and proceedings.
-17-
In rendering any such opinion, such counsel may rely as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials, to the extent shown to and
satisfactory in form and scope to counsel for the Initial Purchasers.
(g) The opinion of Xxxx and Xxxx LLP, counsel for the Company,
described in paragraph (d) above shall be rendered to the Initial Purchasers at
the request of the Company and shall so state therein.
(h) The Initial Purchasers shall have received on the Closing Date an
opinion, dated the Closing Date, of Xxxxxx & Xxxxxxx, counsel for the Initial
Purchasers, as to such matters as the Initial Purchasers shall reasonably
request.
(i) The Initial Purchasers shall have received a letter or letters on
and as of the date of this Agreement (each, an "Initial Letter"), in form and
--------------
substance satisfactory to the Initial Purchasers, from Xxxxxx Xxxxxxxx LLP,
independent public accountants, with respect to the financial statements and
certain financial information contained in the Offering Memorandum and a letter
or letters on and as of the Closing Date, in form and substance satisfactory to
the Initial Purchasers from Xxxxxx Xxxxxxxx LLP confirming the information
contained in the Initial Letter provided by such accountants.
(j) The Company shall not have failed at or prior to the Closing Date
to perform or comply with any of the agreements herein contained and required to
be performed or complied with by the Company at or prior to the Closing Date.
(k) On or prior to the Closing Date, each of DTC, Euroclear and Cedel
Bank shall have accepted the Global Notes for clearance.
(l) On or prior to the Closing Date, the Notes shall have been
approved for quotation on PORTAL.
(m) The Company and the Trustee shall have entered into the Indenture
and the Initial Purchasers shall have received executed counterparts thereof.
(n) The Company shall have entered into the Exchange and Registration
Rights Agreement and the Initial Purchasers shall have received executed
counterparts thereof.
(o) The Merger shall be consummated and become effective in accordance
with applicable law, including the laws of the State of Delaware, prior to, or
simultaneously with, the Closing of the Offering on substantially the terms
described in the Offering Memorandum and the Initial Purchasers shall have
received such documentation as they deem necessary to evidence the consummation
and effectiveness thereof.
(p) The Amended Credit Facility Parties and the lenders listed on
Schedule II attached hereto shall have entered into the Amended Credit Facility
and the Initial Purchasers shall have received executed counterparts thereof and
API shall have made initial borrowings thereunder as contemplated by the
Offering Memorandum.
-18-
(q) Parent, Sandler and certain other investors shall have entered
into and executed and consummated the Stock Purchase Agreement and the Initial
Purchasers shall have received executed counterparts thereof.
(r) Parent shall have made the Equity Investment.
(s) Prior to the Closing Date, the Company shall have furnished to the
Initial Purchasers such further information, certificates and documents as the
Initial Purchasers may reasonably request.
7. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless each Initial
Purchaser and each person, if any, who controls any Initial Purchaser within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, against any and all losses, liabilities, claims, damages and expenses
whatsoever as incurred (including, but not limited to, reasonable attorneys'
fees and any and all reasonable expenses whatsoever incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation), jointly or severally, to which they or any of them may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Offering Memorandum or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary to make the
statements therein, in the light of the circumstances in which they were made,
not misleading; provided, however, that the Company will not be liable in any
such case to the extent, but only to the extent, that any such loss, liability,
claim, damage or expense arises out of or is based upon any such untrue
statement or omission, or alleged untrue statement or omission, made therein in
reliance upon and in conformity with written information referred to in Section
7(b) furnished to the Company by, or on behalf of, any Initial Purchaser
expressly for use therein. This indemnity obligation will be in addition to any
liability which the Company may otherwise have, including under this Agreement.
(b) Each Initial Purchaser agrees to indemnify and hold harmless the
Company, each of the directors of the Company, each of the officers of the
Company, and each other person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, against any losses, liabilities, claims, damages and expenses whatsoever as
incurred (including but not limited to attorneys' fees and any and all
reasonable expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, and
any and all amounts paid in settlement of any claim or litigation), jointly or
severally, to which they or any of them may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Offering Memorandum or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary to make the statements therein, in the
light of the
-19-
circumstances in which they were made, not misleading, in each case to the
extent, but only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or omission, or
alleged untrue statement or omission, made therein in reliance upon and in
conformity with written information furnished to the Company by, or on behalf
of, any Initial Purchaser expressly for use therein; provided, however, that in
no case shall any Initial Purchaser be liable or responsible for any amount in
excess of the discount of the purchase price of the Notes granted to such
Initial Purchaser hereunder. The Company acknowledges that (i) the statements
set forth in the last paragraph of the inside front cover of the Offering
Memorandum, (ii) the names of the Initial Purchasers as set forth on the outside
front cover page of the Offering Memorandum and in the table in the section
captioned "Plan of Distribution" and (iii) the information contained in the last
paragraph of the section captioned "Plan of Distribution" in the Offering
Memorandum constitute the only information furnished to the Company in writing
by, or on behalf of, any Initial Purchaser expressly for use in the Offering
Memorandum or in any amendment thereof or supplement thereto.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any claim or action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 7 or otherwise). In case any
such claim or action is brought against any indemnified party, and such
indemnified party notifies an indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate in the defense thereof,
and to the extent such indemnifying party may elect by written notice delivered
to the indemnified party promptly after receiving the aforesaid notice from such
indemnified party to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense thereof, (ii) the indemnifying parties
shall not have employed counsel to have charge of the defense thereof within a
reasonable time after notice of the commencement, or (iii) such indemnified
party or parties shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties (it being
understood, however, that the indemnifying party shall not be liable in any one
claim or action or separate but substantially similar or related claims or
actions in the same jurisdiction for the expenses of more than one separate
counsel and one additional local counsel). Anything in this subsection to the
contrary notwithstanding, an indemnifying party shall not be liable for any
settlement of any claim or action effected without its written consent (which
consent may not be unreasonably withheld). No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
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release of such indemnified party from all liability or claims that are the
subject matter of such proceeding.
8. Contribution. In order to provide for contribution in circumstances
------------
in which the indemnification provided for in Section 7 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Company and the Initial Purchasers
shall contribute to the aggregate losses, claims, damages, liabilities and
expenses of the nature contemplated by such indemnification provision (including
any investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting any contribution received from persons who may
also be liable for contribution, including officers and directors of the Company
and persons who control the Company within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act) to which the Company, on
the one hand, and one or more of the Initial Purchasers, on the other hand, may
be subject as incurred in such proportions as is appropriate to reflect the
relative benefits received by the Company, on the one hand, and the Initial
Purchasers, on the other hand, from the offering of the Notes or, if such
allocation is not permitted by applicable law or indemnification is not
available as a result of the indemnifying party not having received notice as
provided in Section 7 hereof, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Company, 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 expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company, on the
one hand, and the Initial Purchasers, on the other hand, shall be deemed to be
in the same proportion as (x) the total proceeds from the offering of the Notes
(net of discounts to the Initial Purchasers but before deducting expenses)
received by the Company and (y) the total discounts received by the Initial
Purchasers. The relative fault of the Company, on the one hand, and of the
Initial Purchasers, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand, and 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 Initial Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the provisions
of this Section 8, no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Notwithstanding the provisions of this Section 8, no Initial
Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Notes purchased by it were offered to
investors exceeds the amount of any damages that such Initial Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. For purposes of this Section 8, each
person, if any, who controls any Initial Purchaser within the meaning of Section
15 of the Securities Act or Section 20(a) of the Exchange Act shall have the
same rights to contribution as such Initial Purchaser, and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act
or Section 20(a) of the
-21-
Exchange Act and each officer and each director of the Company shall have the
same right to contribution as the Company. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties, notify each party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 8 or otherwise, except to
the extent that it has been prejudiced in any material respect by the omission
to so notify. No party shall be liable for contribution with respect to any
action or claim settled without its consent (which consent may not be
unreasonably withheld).
9. Default by an Initial Purchaser.
-------------------------------
(a) If one or more of the Initial Purchasers shall fail at the Closing
Date to purchase the Notes which it is obligated to purchase under this
Agreement (the "Defaulted Notes") and such Defaulted Notes do not exceed in the
---------------
aggregate 10% of the aggregate principal amount of the Notes, then the non-
defaulting Initial Purchasers shall purchase the Defaulted Notes.
(b) Notwithstanding the foregoing, if the Defaulted Notes equal or
exceed in the aggregate 10% of the aggregate principal amount of the Notes, then
the non-defaulting Initial Purchasers shall have the right, but shall not be
obligated, within 48 hours after the Closing Date to purchase all, but not less
than all, of the Defaulted Notes upon the terms herein set forth; provided that
if the non-defaulting Initial Purchasers shall not have elected to purchase the
Defaulted Notes within such 48-hour period then the Company shall be entitled to
a further 48-hour period within which to procure another party or parties
satisfactory to the non-defaulting Initial Purchasers to purchase the Defaulted
Notes on such terms.
No action taken pursuant to this Section 9 shall relieve any
defaulting Initial Purchaser from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, the non-defaulting Initial Purchasers or the
Company shall have the right to postpone the Closing Date for a period not
exceeding seven days in order to effect any required changes in the Offering
Memorandum or in any other documents or arrangements.
10. Survival of Representations and Agreements. All representations and
------------------------------------------
warranties, covenants and agreements of the Initial Purchasers and the Company
contained in this Agreement, including, without limitation, the agreements
contained in Sections 4 and 5, the indemnity agreements contained in Section 7
and the contribution agreements contained in Section 8, shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of the Initial Purchasers or any controlling person thereof or by or on
behalf of the Company, any of its officers and directors or any controlling
person thereof, and shall survive delivery of and payment for the Notes to and
by the Initial Purchasers. The representations contained in Section 1 and the
agreements contained in Sections 5, 7 and 8 and this Section 10 shall survive
the termination of this Agreement, including termination pursuant to Xxxxxxx 00.
-00-
00. Xxxxxxxxxxx.
-----------
(a) Bear, Xxxxxxx & Co. Inc., on behalf of the Initial Purchasers,
shall have the right to terminate this Agreement at any time prior to the
Closing Date:
(i) if any domestic or international event or act or occurrence
has materially disrupted, or in the Initial Purchasers' sole opinion will in the
immediate future materially disrupt, the United States or international
securities markets;
(ii) if trading on the New York Stock Exchange, the American Stock
Exchange or the National Association of Securities Dealers Automated Quotation
System shall have been suspended or materially limited;
(iii) if a banking moratorium has been declared by any United
States federal or New York State authority or if any new restriction materially
adversely affecting the distribution of the Notes shall have become effective;
(iv) if the United States becomes engaged in hostilities or there
is an escalation of hostilities involving the United States or there is a
declaration of a national emergency or war by the United States; or
(v) if there shall have been any other change in political,
financial or economic conditions, if the effect of such event in the sole
judgment of the Initial Purchaser is to make it impracticable or inadvisable to
proceed with the offering, sale and delivery of the Notes on the terms
contemplated by the Offering Memorandum.
(b) Any notice of termination pursuant to this Section 11 shall be
made to the Company by telephone, telecopy or telex confirmed in writing by
letter.
(c) If this Agreement shall be terminated pursuant to any of the
provisions hereof, or if the sale of the Notes provided for herein is not
consummated because any condition to the obligations of the Initial Purchasers
set forth herein is not satisfied or because of any refusal, inability or
failure on the part of the Company to perform any agreement herein or comply
with the provision hereof, the Company will, subject to demand by the Initial
Purchasers, reimburse the Initial Purchasers for all reasonable out-of-pocket
expenses (including the reasonable fees and expenses of their counsel), incurred
by the Initial Purchasers in connection herewith.
12. Notice. All communications hereunder, except as may be otherwise
------
specifically provided herein, shall be in writing and, if sent to any Initial
Purchaser, shall be mailed, delivered, telecopied, telexed or telegraphed and
confirmed in writing, to such Initial Purchaser, c/o Bear, Xxxxxxx & Co. Inc.,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx; with a copy
to Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx X. Xxxxxxx; if sent to the Company, shall be mailed, delivered,
telecopied, telexed or telegraphed and confirmed in writing to Arch
Communications, Inc., 0000 Xxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Chief Executive Officer; with a copy to Xxxx and
Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxx X.
Xxxxxxxxxx.
-23-
13. Consent to Jurisdiction; Waiver of Immunities.
---------------------------------------------
(a) The Company:
(i) irrevocably submits to the jurisdiction of any New York State
or federal court sitting in New York City and any appellate court from any
thereof in any action or proceeding arising out of or relating to this Agreement
or any other document delivered hereunder;
(ii) irrevocably agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State court or
in such federal court; and
(iii) irrevocably waives, to the fullest extent permitted by law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding and irrevocably consents, to the fullest extent permitted by law, to
service of process of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to the Company at its address as provided in Section 12 hereof
such service to become effective five days after such mailing.
(b) Nothing in this Section 13 shall affect the right of any person to
serve legal process in any other manner permitted by law or affect the right of
any person to bring any action or proceeding against the Company or its
properties in the courts of other jurisdictions.
14. Parties. This Agreement shall inure solely to the benefit of, and
-------
shall be binding upon, the Initial Purchasers, the Company and the controlling
persons, directors, officers, employees and agents referred to in Sections 7 and
8, and their respective successors and assigns, and no other person shall have
or be construed to have any legal or equitable right, remedy or claim under or
in respect of or by virtue of this Agreement or any provision herein contained.
The term "successors and assigns" shall not include a purchaser, in its capacity
as such, of Notes from the Initial Purchasers.
15. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of New York for contracts made and to be
fully performed in such state without regard to the conflict of law principles
thereof.
16. Counterparts. This Agreement may be executed and delivered (including
------------
by facsimile transmission) in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed and
delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
[signature pages follow]
-24-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Initial Purchasers and the Company in accordance with its terms.
Very truly yours,
USA MOBILE COMMUNICATIONS, INC. II
/s/
By:_______________________________________________
Name:
Title:
Accepted as of the date first above written:
BEAR, XXXXXXX & CO. INC.
/s/ J. Xxxxxx Xxxxx
By:_______________________________________________
Name: J. Xxxxxx Xxxxx
Title: Senior Managing Director
BARCLAYS CAPITAL INC.
/s/ Xxxxxx X. Xxxxxxxx
By:_______________________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Director
RBC DOMINION SECURITIES CORPORATION
/s/ Xxxxxx X. Xxxxxx
By:_______________________________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
BNY CAPITAL MARKETS, INC.
/s/ Xxxx X. Xxx
By:_______________________________________________
Name: Xxxx X. Xxx
Title: Managing Director
TD SECURITIES (USA) INC.
/s/
By:______________________________________________
Name:
Title:
-25-
SCHEDULE I
Aggregate Principal Amount
Name of Initial Purchaser Of Notes To Be Purchased
------------------------- ---------------------------
Bear, Xxxxxxx & Co. Inc. $ 71,500,000
Barclays Capital Inc. 17,550,000
RBC Dominion Securities Corporation 14,950,000
BNY Capital Markets, Inc. 13,000,000
TD Securities (USA) Inc. 13,000,000
============
$130,000,000
-26-
SCHEDULE II
The Bank of New York
Toronto Dominion Bank (Texas), Inc.
Xxx Xxxxxx American Capital
First Union National Bank
Royal Bank of Canada
PNC Bank, N.A.
Fleet Bank
Bank of Boston
General Electric Capital Corporation
Sun Trust Bank
Societe Generale
Bear, Xxxxxxx Government Securities
Barclays Bank
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SCHEDULE III
List of Non-Wholly Owned Subsidiaries
Partially-Owned Subsidiaries of Arch Communications Group, Inc.
---------------------------------------------------------------
Name Percent Owned
---- -------------
Arch Latin America 12%
Canada, Inc. 20%
Partially-Owned Subsidiaries of Arch Communications Enterprises, Inc.
---------------------------------------------------------------------
Name Percent Owned
---- -------------
Canada, Inc. 33%
Partially-Owned Subsidiaries of The Westlink Company
----------------------------------------------------
Name Percent Owned
---- -------------
Answer Iowa, Inc. 62%
Xxxxxx PCS Ventures, Inc. 9.9%
Non-Voting 15% Voting Stock
Cascade Mobile Communications 40% Limited Partner
Limited Partnership 35% General Partner
TeleComm/KRT Partnership 75% General Partner
Waterloo Communications, Inc. 45% General Partner
-28-
EXHIBIT A
[Form of Exchange and Registration Rights Agreement]
A-1
EXHIBIT B
[Form of Xxxx and Xxxx LLP Opinion]
B-1
EXHIBIT C
[Form of Xxxxx X. Xxxxxx Opinion]
C-1
