Exhibit 10.8
EXECUTION COPY
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IWO ESCROW COMPANY
$290,000,000
$150,000,000 SENIOR SECURED FLOATING RATE NOTES DUE 2012
$140,000,000 PRINCIPAL AMOUNT AT MATURITY 10.75% SENIOR DISCOUNT NOTES DUE 2015
PURCHASE AGREEMENT
DECEMBER 14, 2004
BEAR, XXXXXXX & CO. INC.
XXXXXX BROTHERS INC.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED
_____________________________________
IWO ESCROW COMPANY
$290,000,000
$150,000,000 SENIOR SECURED FLOATING RATE NOTES DUE 2012
$140,000,000 PRINCIPAL AMOUNT AT MATURITY 10.75% SENIOR DISCOUNT NOTES DUE 2015
PURCHASE AGREEMENT
December 14, 2004
New York, New York
BEAR, XXXXXXX & CO. INC.
XXXXXX BROTHERS INC.
XXXXXXX LYNCH, XXXXXX, XXXXXX &
XXXXX INCORPORATED
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies & Gentlemen:
IWO Escrow Company, a Delaware corporation (the "COMPANY"), proposes to
issue and sell to Bear, Xxxxxxx & Co. Inc. ("BEAR XXXXXXX"), Xxxxxx Brothers
Inc. and Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated (each, an "INITIAL
PURCHASER" and, collectively, the "INITIAL PURCHASERS") $150,000,000 in
aggregate principal amount of Senior Secured Floating Rate notes due 2012 (the
"SENIOR SECURED NOTES") and $140,000,000 principal amount at maturity of its
10.75% Senior Discount Notes due 2015 (the "SENIOR DISCOUNT NOTES" and, together
with the Senior Secured Notes, the "Notes"), subject to the terms and conditions
set forth herein. The Senior Secured Notes will be issued pursuant to an
indenture (the "SENIOR SECURED NOTES INDENTURE") and the Senior Discount Notes
will be issued pursuant to an indenture (the "SENIOR DISCOUNT NOTES INDENTURE,"
together with the Senior Secured Notes Indenture, the "INDENTURES"), in each
case to be dated January 6, 2005, in each case among the Company and U.S. Bank
National Association, as trustee (the "TRUSTEE").
The issuance and sale of the Notes pursuant to this Agreement is part
of a series of transactions designed to reorganize the ownership and capital
structure of IWO Holdings, Inc., a Delaware corporation ("HOLDINGS"). Such
transactions, including the Pre-Packaged Plan and the Merger (as defined
herein), are referred to herein as the "REORGANIZATION." As part of the
Reorganization, the Company has prepared an Offering Memorandum and Holdings has
prepared the Disclosure Statement dated December 1, 2004, and related Plan of
Reorganization and Ballot, pursuant to which Holdings commenced a solicitation
of votes for a pre-packaged bankruptcy plan of reorganization under Chapter 11
of the U.S. Bankruptcy Code (the "PRE-PACKAGED PLAN").
As part of the consummation of the Reorganization, the Company will
merge with and into Holdings after which Holdings will be the surviving entity
(the "MERGER"). Upon consummation of the Merger, Holdings will succeed to the
obligations of the Company hereunder and under the Indentures, the Notes and the
Registration Rights Agreement (as hereinafter defined), and will execute a
supplemental indenture to each Indenture or an assumption agreement to the
Indentures and the Registration Rights Agreement in connection therewith. In
addition, upon consummation of the Merger, the Notes will become fully and
unconditionally guaranteed (the "GUARANTEES") as to payment of principal,
interest, premium and liquidated damages, if any, on a senior secured basis in
the case of the Senior Secured Notes and on a senior unsecured basis in the case
of the Senior Discount Notes, jointly and severally by all of the subsidiaries
of Holdings listed on Schedule I hereto (collectively, the "GUARANTORS").
Prior to the Closing Date, Holdings will deposit funds into an escrow
account (the "ESCROW ACCOUNT") in an amount (the "PRE-FUNDED AMOUNT") at least
equal to (i) the amount of interest that would accrue on the Senior Secured
Notes from the Closing Date to (but not including) the latest day on which,
pursuant to the terms of the Escrow and Security Agreement (as defined below),
the Senior Secured Notes could be redeemed, plus (ii) the amount by which the
Senior Discount Notes would accrete from the Closing Date to (but not including)
the latest day on which, pursuant to the terms of the Escrow and Security
Agreement, the Senior Discount Notes could be redeemed, plus (iii) an amount
equal to the fees and expenses payable to the Escrow Agent, the Trustee and the
Collateral Trustee through the period ending on the latest date on which,
pursuant to the terms of the Escrow and Security Agreement, the Notes could be
redeemed. On the Closing Date, an additional $232,720,400, representing the
gross proceeds from the sale of the Notes, will be deposited into the Escrow
Account by the Company (such amount the "OFFERING PROCEEDS" and the aggregate
amount in the Escrow Account being referred to as the "ESCROWED FUNDS"). The
Escrow Account will be governed by an agreement between the Company and U.S.
Bank National Association, as escrow agent (the "ESCROW AGENT"), to be dated the
Closing Date (the "ESCROW AND SECURITY AGREEMENT"). Pending release of the funds
in the Escrow Account (a) to Holdings upon consummation of the Merger or (b) to
the trustee in the event of a Special Mandatory Redemption (as defined in the
Offering Memorandum), the Notes will be secured by a security interest in the
Escrowed Funds and a security interest in all the assets of the Company.
1. Issuance of Notes. The Company proposes, upon the terms and subject
to the conditions set forth herein, to issue and sell to the Initial Purchasers
an aggregate of $150,000,000 in principal amount of Senior Secured Notes and an
aggregate of $140,000,000 in principal amount at maturity of Senior Discount
Notes. It is understood and acknowledged that upon original issuance thereof,
and until such time as the same is no longer required under the applicable
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
the Notes (and all securities issued in exchange therefor or in substitution
thereof, other than the New Notes (as defined below)) shall bear the following
legend:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
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EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE OFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) (a) IN THE UNITED STATES TO A
PERSON WHO 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, (b) OUTSIDE THE UNITED STATES IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES
ACT, (c) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL IF THE ISSUER SO REQUESTS), (2) TO THE ISSUER OR (3)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF
THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE."
2. Offering. The Notes will be offered and sold (the "OFFERING") to the
Initial Purchasers pursuant to an exemption from the registration requirements
under the Securities Act. The Company prepared a preliminary offering
memorandum, dated December 6, 2004, (the "PRELIMINARY OFFERING MEMORANDUM") and
a final offering memorandum, dated December 14, 2004 (the "OFFERING
MEMORANDUM"), relating to the Company, Holdings, the Offering and the Notes.
The Initial Purchasers have advised the Company that the Initial
Purchasers will make offers (the "EXEMPT RESALES") of the Notes on the terms set
forth in the Offering Memorandum, as amended or supplemented, solely to persons
whom the Initial Purchasers reasonably believe to be (a) "qualified
institutional buyers," as defined in Rule 144A under the Securities Act ("QIBS")
or (b) non-US persons, as defined in Regulation S promulgated under the
Securities Act ("REGULATION S"), ("NON-US PERSONS") outside the United States to
whom the Initial Purchasers reasonably believe offers and sales of the Notes may
be made in reliance upon, and in accordance with Regulation S, such persons to
also be referred to herein as the "ELIGIBLE PURCHASERS."
Holders (including subsequent transferees) of the Notes will have the
registration rights set forth in the registration rights agreement relating
thereto (the "REGISTRATION RIGHTS AGREEMENT"), to be dated the Closing Date, for
so long as such Notes constitute "TRANSFER RESTRICTED SECURITIES" (as defined in
the Registration Rights Agreement). Pursuant to the Registration Rights
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Agreement, the Company will agree to file with the Securities and Exchange
Commission (the "COMMISSION"), under the circumstances set forth therein (i) a
registration statement under the Securities Act (the "EXCHANGE OFFER
REGISTRATION STATEMENT") relating to the Company's new Senior Secured Floating
Rate Notes due 2012 (the "NEW SENIOR SECURED NOTES") and new 10.75% Senior
Discount Notes due 2015 (the "NEW SENIOR DISCOUNT NOTES" and, together with the
New Senior Secured Notes, the "NEW NOTES") in a like aggregate principal amount
as the Company issued under the Indentures and a guarantee thereof by the
Guarantors (the "EXCHANGE GUARANTEE"), identical in all material respects to the
Notes and the Guarantees and registered under the Securities Act to be offered
in exchange for the Notes (such offer to exchange being referred to as the
"EXCHANGE OFFER") and the Guarantees thereof and (ii) a shelf registration
statement pursuant to Rule 415 under the Securities Act (the "SHELF REGISTRATION
STATEMENT" and, together with the Exchange Offer Registration Statement, the
"REGISTRATION STATEMENTS") relating to the resale by certain holders of the
Notes, and to use their best efforts to cause such Registration Statements to be
declared effective and to consummate the Exchange Offer.
This Agreement, the Notes, the Indentures, the Registration Rights
Agreement, the Escrow and Security Agreement, the Security Agreement and the
Pledge Agreement and are hereinafter referred to collectively as the "OPERATIVE
DOCUMENTS."
3. Purchase, Sale and Delivery.
(a) On the basis of the representations, warranties and covenants
contained in this Agreement, and subject to its terms and conditions: (i) 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
respective principal amounts of Senior Secured Notes and Senior Discount Notes
set forth opposite the name of such Initial Purchaser on Exhibit A. The purchase
price for the Senior Secured Notes will be $1,000 per $1,000 principal amount
Senior Secured Note. The purchase price for the Senior Discount Notes will be
$590.86 per $1,000 principal amount at maturity Senior Discount Note. Upon
consummation of the Reorganization and release of the Escrowed Funds, the
Company agrees to pay to each Initial Purchaser $30.00 per $1,000 principal
amount Senior Secured Note and $17.7258 per $1,000 principal amount at maturity
Senior Discount Note purchased by such Initial Purchaser hereunder, which amount
will be paid subject to, and in accordance with, the terms of the Escrow and
Security Agreement.
(b) On the Closing Date, the Company shall deliver to the Initial
Purchasers, in such denomination or denominations and registered in such name or
names as the Initial Purchasers request upon notice to the Company, (i) one or
more Senior Secured Notes and one or more Senior Discount Notes in definitive
global form, registered in the name of Cede & Co., as nominee of The Depository
Trust Company ("DTC"), having an aggregate amount corresponding to the aggregate
principal amount of the Notes sold pursuant to Exempt Resales to QIBs (the
"GLOBAL NOTE") and (ii) if any Exempt Resales are made in reliance on Regulation
S, one or more Senior Secured Notes and one or more Senior Discount Notes in
definitive form, registered in the name of Cede & Co., as nominee of DTC, having
an aggregate amount corresponding to the aggregate amount of the Notes, if any,
sold pursuant to Exempt Resales in offshore transactions in reliance on
Regulation S (the "REGULATION S GLOBAL NOTE"), against payment of the purchase
price therefor by wire transfer of same-day funds to the account of the Company,
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previously designated by it in writing. Such delivery of and payment for the
Initial Notes shall be made at the offices of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx, 00000 or such other location as may be
mutually acceptable. Such delivery and payment shall be made at 9:30 a.m., New
York City time, on January 6, 2005 or at such other time as shall be agreed upon
by the Initial Purchasers and the Company. The time and date of such delivery
and payment are herein called the "CLOSING DATE." The Global Note and the
Regulation S Global Note shall be made available to the Initial Purchasers for
inspection not later than 5:00 p.m., New York City time, on the business day
immediately preceding the Closing Date.
4. Agreements of the Company. The Company covenants to and agrees with
the Initial Purchasers as follows:
(a) 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 Notes for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purpose by any state
securities commission or other regulatory authority and (ii) of the happening of
any event that makes any statement of a material fact made in the Preliminary
Offering Memorandum or the Offering Memorandum untrue or that requires the
making of any additions to or changes in the Preliminary Offering Memorandum or
the Offering Memorandum in order to make the statements therein, in the light of
the circumstances under which they are made, not misleading. The Company shall
use its best efforts to prevent the issuance of any stop order or order
suspending the qualification or exemption of any Notes under any state
securities or Blue Sky laws and, if at any time any state securities commission
or other regulatory authority shall issue an order suspending the qualification
or exemption of any Notes under any state securities or Blue Sky laws, the
Company shall use its best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time.
(b) To furnish the Initial Purchasers, to counsel to the Initial
Purchasers and to those persons identified by the Initial Purchasers to the
Company, without charge, as many copies of the Preliminary Offering Memorandum
and the Offering Memorandum and any amendments or supplements thereto, as the
Initial Purchasers may reasonably request. The Company consents to the use of
the Preliminary Offering Memorandum and the Offering Memorandum, and any
amendments and supplements thereto required pursuant hereto, by the Initial
Purchasers in connection with Exempt Resales.
(c) Not to amend or supplement the Preliminary Offering Memorandum or
the Offering Memorandum or any amendment or supplement thereto during such
period as in the opinion of counsel for the Initial Purchasers the Preliminary
Offering Memorandum or the Offering Memorandum is required by law to be
delivered in connection with Exempt Resales and in connection with market-making
activities of the Initial Purchasers for so long as any Notes are outstanding
unless the Initial Purchasers shall previously have been advised thereof and
shall not have reasonably objected thereto within a reasonable time after being
furnished a copy thereof. The Company shall promptly prepare, upon the Initial
Purchasers' reasonable request or the request of counsel to the Initial
Purchasers, any amendment or supplement to the Preliminary Offering Memorandum
or the Offering Memorandum that may be necessary or advisable in connection with
such Exempt Resales or such market making activities.
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(d) If, after the date hereof and prior to consummation of any Exempt
Resale, any event shall occur as a result of which, in the judgment of the
Company or in the reasonable opinion of counsel for the Company or counsel for
the Initial Purchasers, it becomes necessary or advisable to amend or supplement
the Preliminary Offering Memorandum or Offering Memorandum in order to make the
statements therein, in the light of the circumstances when such Offering
Memorandum is delivered to an Eligible Purchaser which is a prospective
purchaser, not misleading, or if for any other reason it is necessary or
advisable to amend or supplement the Preliminary Offering Memorandum or Offering
Memorandum to comply with applicable law, rules or regulations, (i) to notify
the Initial Purchasers and (ii) forthwith to prepare an appropriate amendment or
supplement to such Preliminary Offering Memorandum or the Offering Memorandum 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 include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein not misleading, or so that such Preliminary
Offering Memorandum or the Offering Memorandum will comply with applicable law,
rules and regulations.
(e) To cooperate with the Initial Purchasers and counsel for the
Initial Purchasers in connection with the qualification of the Notes for
offering and sale by the Initial Purchasers and dealers under the securities or
Blue Sky laws of such jurisdictions as the Initial Purchasers may reasonably
request and to continue such qualification in effect so long as required for the
Exempt Resales; provided, however, that the Company shall not be required in
connection therewith to register or qualify as a foreign corporation where it is
not now so qualified or to take any action that would subject it to service of
process in suits or taxation, in each case, other than as to matters and
transactions relating to the Preliminary Offering Memorandum, the Offering
Memorandum or Exempt Resales, in any jurisdiction where it is not now so
subject.
(f) Whether or not the transactions contemplated by this Agreement
including, but not limited to, the transactions described in the Operative
Documents, are consummated or this Agreement becomes effective or is terminated,
to pay all costs, expenses, fees and taxes incident to the performance of the
obligations of the Company, including in connection with: (i) the preparation,
printing, filing and distribution of the Preliminary Offering Memorandum and the
Offering Memorandum (including, without limitation, financial statements) and
all amendments and supplements thereto required pursuant hereto, (ii) the
preparation (including, without limitation, duplication costs) and delivery of
all agreements, correspondence and all other documents prepared and delivered in
connection herewith and with the Exempt Resales, (iii) the issuance, transfer
and delivery of the Notes and Guarantees endorsed thereon to the Initial
Purchasers, (iv) the qualification or registration of the Notes for offer and
sale under the securities or Blue Sky laws of the several states (including,
without limitation, the cost of printing and mailing a preliminary and final
Blue Sky Memorandum and the reasonable fees and disbursements of counsel for the
Initial Purchasers relating thereto), (v) furnishing such copies of the
Preliminary Offering Memorandum and the Offering Memorandum, and all amendments
and supplements thereto, as may be requested for use in connection with Exempt
Resales, (vi) the preparation of certificates for the Notes (including, without
limitation, printing and engraving thereof) and the New Notes (as applicable),
(vii) the fees, disbursements and expenses of the counsel and accountants to the
Company and the Guarantors, (viii) all expenses and listing fees in connection
with the application for quotation of the Securities in the National Association
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of Securities Dealers Automated Quotation System ("PORTAL"), (ix) all fees and
expenses (including fees and expenses of counsel) of the Company in connection
with the approval of the Notes by DTC for "book-entry" transfer, (x) rating the
Notes and the New Notes (as applicable) by rating agencies, (xi) the reasonable
fees and expenses of the Trustee and its counsel, (xii) the performance by the
Company of its other obligations under this Agreement and the other Operative
Documents and (xiii) "roadshow" travel and other expenses incurred in connection
with the marketing and sale of the Notes upon presentation of reasonably
satisfactory documentation.
(g) To use the proceeds from the sale of the Notes in the manner
described in the Offering Memorandum under the caption "Use of Proceeds."
(h) Not to voluntarily claim, and to resist actively any attempts to
claim, the benefit of any usury laws against the holders of any Notes.
(i) To do and perform all things required to be done and performed
under this Agreement by them prior to or after the Closing Date and to satisfy
all conditions precedent on their part to the delivery of the Notes.
(j) Not to sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Securities Act) that
could be integrated with the sale of the Notes in a manner that would require
the registration under the Securities Act of the sale to the Initial Purchasers
or the Eligible Purchasers of the Notes or to take any other action that would
result in the Exempt Resales not being exempt from registration under the
Securities Act and not to allow any of their respective "affiliates" (as defined
in Rule 144A under the Act) to do any of the foregoing.
(k) For so long as any of the Notes remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act and are not able to be sold in their entirety under Rule 144
under the Securities Act (or any successor provision) and during any period in
which the Company and the Guarantor are not subject to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), to make
available to any holder or beneficial owner of Notes in connection with any sale
thereof and any prospective purchaser of such Notes from such holder or
beneficial owner, the information (the "ADDITIONAL ISSUER Information") required
by Rule 144A(d)(4) under the Securities Act.
(l) To cause the Exchange Offer to be made in the appropriate form to
permit registered New Notes and the Exchange Guarantees to be offered in
exchange for the Notes and the Guarantees thereof and to comply with all
applicable federal and state securities laws in connection with the Exchange
Offer.
(m) To comply with all of its agreements set forth in the Registration
Rights Agreement and all agreements set forth in the representation letters of
the Company to DTC relating to the approval of the Notes by DTC for "book-entry"
transfer.
(n) To effect the inclusion of the Notes in PORTAL and to obtain
approval of the Notes by DTC for "book-entry" transfer.
(o) During a period of five years following the Closing Date, (i) to
deliver without charge to the Initial Purchasers, as they may reasonably
request, promptly upon their becoming available, copies of all reports or other
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publicly available information that the Company or any Guarantors shall mail to
their securityholders, (ii) to notify the Initial Purchasers, promptly upon
their becoming available, of all filings of reports, financial statements and
proxy or information statements filed by the Company or any Guarantors with the
Commission or any national securities exchange, and (iii) to notify the Initial
Purchasers, promptly upon their becoming available, of such other information
concerning the Company, any Guarantors or any of their subsidiaries, including
without limitation press releases, that they may make available to their
securityholders; and in the case of (ii) and (iii) hereof make available
promptly to the Initial Purchasers copies of the same without charge.
(p) Not to take, directly or indirectly, any action designed to, or
that might reasonably be expected to, cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Notes. Except as permitted by the Securities Act, the Company
will not distribute any (i) preliminary offering memorandum, including, without
limitation, the Preliminary Offering Memorandum, (ii) offering memorandum,
including, without limitation, the Offering Memorandum, or (iii) other offering
material in connection with the offering and sale of the Notes.
(q) To take all reasonable action necessary to enable Investor
Services, Inc. (Xxxxx'x) and Standard & Poor's Ratings Services to provide their
respective initial credit ratings on the Notes.
(r) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement prior to the Closing
Date and to satisfy all conditions precedent to the delivery of the Notes.
(s) To comply with the agreements in the Indentures, the Registration
Rights Agreement and each other Operative Document.
(t) To use its best efforts to do and perform all things necessary to
perfect, to the extent permitted by law, a first priority security interest in
the Collateral (as such term is defined in the Security Agreement).
(u) To deposit into the Escrow Account the Offering Proceeds and to
comply with all of its agreements set forth in the Escrow and Security
Agreement.
(v) To represent the Notes sold in reliance on Regulation S upon
issuance by Temporary Regulation S Global Notes that may not be exchanged for
definitive securities until the expiration of the 40-day distribution compliance
period referred to in Rule 903(b)(3) of the Act and only upon certification of
beneficial ownership of such Initial Notes (as defined in the Registration
Rights Agreement) by non-U.S. persons or U.S. persons who purchased such Initial
Notes in transactions that were exempt from the registration requirements of the
Act.
(w) During the period from the date hereof until 90 days after the
Closing Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company or warrants to purchase debt securities of the
Company substantially similar to the Notes (other than (i) the Notes, (ii) the
Guarantees and (iii) intercompany debt between the Company and its affiliates
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permitted by the Indentures to be incurred) or to announce any intention to do
any of the foregoing, without the prior written consent of Bear Xxxxxxx, on
behalf of the Initial Purchasers.
5. Representations and Warranties of the Company. The Company
represents and warrants to the Initial Purchasers that:
(a) Any reference to the Preliminary Offering Memorandum or the
Offering Memorandum shall be deemed to refer to and include any Additional
Issuer Information (as defined in Section 4(l)) and so deemed to be included in
the Preliminary Offering Memorandum or the Offering Memorandum furnished by the
Company prior to the completion of the distribution of the Notes. The
Preliminary Offering Memorandum as of its date does not, and the Offering
Memorandum as of its date and as of the Closing Date does not and will 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 necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties contained
in this paragraph shall not apply to statements in or omissions from the
Preliminary Offering Memorandum and the Offering Memorandum (or any supplement
or amendment thereto) made in reliance upon and in conformity with information
relating to any Initial Purchaser furnished to the Company in writing by any
Initial Purchaser expressly for use therein. No stop order preventing the use of
the Preliminary Offering Memorandum or the Offering Memorandum, 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 Securities Act, has been issued.
(b) As of the date hereof, and after giving effect to the
Reorganization, Holdings has, and will have, no subsidiaries other than the
Guarantors.
(c) The Company is, and upon the consummation of the Reorganization,
Holdings and the Guarantors will (i) be duly organized, validly existing as a
corporation in good standing under the laws of its respective jurisdiction of
incorporation, (ii) have all requisite corporate power and authority to carry on
its business as it is currently being conducted and as described in the Offering
Memorandum and to own, lease and operate its properties, and (iii) be duly
qualified and 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, with
respect to clauses (i) (as it relates to good standing) and (iii), where the
failure to be so qualified or in good standing does not and would not reasonably
be expected to (x) individually or in the aggregate, result in a material
adverse effect on the properties, business, results of operations, condition
(financial or otherwise), affairs or prospects of the Company and, following the
Reorganization, Holdings or any of the Guarantors, taken as a whole (y)
interfere with or adversely affect the issuance or sale of the Notes pursuant
hereto or (z) in any manner draw into question the validity of this Agreement or
any other Operative Document or the transactions described in the Offering
Memorandum under the caption "Use of Proceeds" (any of the events set forth in
clauses (x), (y) or (z), a "MATERIAL ADVERSE EFFECT").
(d) All of the outstanding shares of capital stock of Holdings and the
Guarantors have been duly authorized, validly issued, and are fully paid and
nonassessable and were not issued in violation of any preemptive or similar
rights. At September 30, 2004 the Company had the actual and pro forma
capitalization as set forth in the Offering Memorandum under the caption
"Capitalization" (subject in each case to the assumptions set forth under such
caption).
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(e) When the Notes are issued and delivered pursuant to this Agreement,
no Note will be of the same class (within the meaning of Rule 144A under the
Securities Act) as securities of the Company that are listed on a national
securities exchange registered under Section 6 of the Exchange Act or that are
quoted in a U.S. automated inter-dealer quotation system.
(f) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and each of
the other Operative Documents and the Company has all requisite corporate power
and authority to consummate the transactions contemplated hereby and thereby,
including, without limitation, the corporate power and authority to issue, sell
and deliver the Notes, and the Company has the corporate power to effect the Use
of Proceeds as described herein and in the Offering Memorandum.
(g) This Agreement has been duly and validly authorized, executed and
delivered by the Company and is the legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or
similar laws affecting the rights of creditors generally and subject to general
principles of equity, and except insofar as indemnification and contribution
provisions may be limited by applicable law or equitable principles.
(h) The Indentures have been duly and validly authorized by the Company
and, when duly executed and delivered by the Company, will be legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or similar laws affecting the
rights of creditors generally and subject to general principles of equity, and
except insofar as indemnification and contribution provisions may be limited by
applicable law or equitable principles. On the Closing Date, the Indentures will
conform in all material respects to the requirements of the Trust Indenture Act
of 1939, as amended (the "TRUST INDENTURE ACT"), and the rules and regulations
of the Commission applicable to an indenture which is qualified thereunder. The
Offering Memorandum contains summaries of the terms of the Indentures, which are
accurate in all material respects.
(i) The Registration Rights Agreement has been duly and validly
authorized by the Company, and, when duly executed and delivered by the Company,
will be the legal, valid and binding obligation of the Company, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or similar laws affecting the
rights of creditors generally and subject to general principles of equity, and
except insofar as indemnification and contribution provisions may be limited by
applicable law or equitable principles. The Offering Memorandum contains a
summary of the terms of the Registration Rights Agreement, which is accurate in
all material respects.
(j) The Security Agreement has been duly and validly authorized by the
Company, and when duly executed and delivered by the Company, will create a
legal, valid and binding obligation of the Company, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or similar laws affecting the rights of
10
creditors generally and subject to general principles of equity, and except
insofar as indemnification and contribution provisions may be limited by
applicable law or equitable principles. The Offering Memorandum contains a
summary of the terms of the Security Agreement, which is accurate in all
material respects.
(k) The Notes have been duly and validly authorized by the Company for
issuance and sale to the Initial Purchasers pursuant to this Agreement and, when
issued and authenticated in accordance with the terms of the Indentures and
delivered against payment therefor in accordance with the terms hereof and
thereof, will be the legal, valid and binding obligations of the Company,
enforceable against it in accordance with their terms and entitled to the
benefits of the Indentures, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity. The Offering
Memorandum contains summaries of the terms of the Notes, which are accurate in
all material respects.
(l) The New Notes have been duly authorized by the Company and, when
the New Notes are issued, executed and authenticated in accordance with the
terms of the Exchange Offer and the Indentures and delivered against payment
therefor in accordance with the terms thereof, the New Notes will be entitled to
the benefits of the Indentures and will be the valid and legally binding
obligations of the Company or Holdings enforceable against them in accordance
with their terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity. The offering Memorandum
contains a summary of the terms of the New Notes which is accurate in all
material respects.
(m) The Exchange Guarantees, upon the consummation of the
Reorganization, will be duly authorized by the Guarantors, and when the Exchange
Guarantees are issued, executed and authenticated in accordance with the terms
of the Exchange Offer and the Indentures and delivered in accordance with the
terms thereof, the Exchange Guarantees will be entitled to the benefits of the
Indentures and will be the valid and legally binding obligations of the
Guarantors enforceable against them in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or
similar laws affecting the rights of creditors generally and subject to general
principles of equity. The offering Memorandum contains a summary of the terms of
the Exchange Guarantees which is accurate in all material respects.
(n) Each of the Registration Rights Agreement, Security Agreement and
Pledge Agreement and Collateral Trust Agreement, upon the consummation of the
Reorganization and when duly executed and delivered by Holdings and the
Guarantors, will be the legal, valid and binding obligations of Holdings and the
Guarantors, enforceable against each of them in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or similar laws affecting the rights of creditors generally and
subject to general principles of equity, and except insofar as indemnification
and contribution provisions may be limited by applicable law or equitable
principles.
(o) The Indentures, upon the consummation of the Reorganization and
when the Indentures and supplemental indentures thereto are duly executed and
delivered by Holdings and the Guarantors, will be legal, valid and binding
obligations of Holdings and the Guarantors, enforceable against the them in
11
accordance with their terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity, and except
insofar as indemnification and contribution provisions may be limited by
applicable law or equitable principles. After giving effect to the
Reorganization, the Indentures will conform in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission applicable to
an indenture which is qualified thereunder.
(p) The statistical, industry-related and market-related data included
in the Offering Memorandum are based on or are derived from sources (whether
internal or external) which the Company believes to be reliable and accurate in
all material respects and such data agree with the sources (whether internal or
external) from which they are derived.
(q) The Company is not and, after giving effect to the Offering and the
transactions described in the Offering Memorandum, Operative Documents and the
Reorganization, will not be, (A) in violation of its certificate of
incorporation or bylaws, (B) in default in the performance of any bond,
debenture, note, indenture, mortgage, deed of trust or other agreement or
instrument to which it is a party or by which it is bound or to which any of its
properties is subject, or (C) in violation of any local, state or federal law,
statute, ordinance, rule, regulation, requirement, judgment or court decree
(including, without limitation, the Communications Act of 1934 (the
"COMMUNICATIONS ACT") and the rules and regulations of the Federal
Communications Commission (the "FCC"), and environmental laws, statutes,
ordinances, rules regulations, judgments or court decrees) applicable to the
Company or any of its assets or properties (whether owned or leased) other than,
in the case of clauses (B) and (C), any default or violation that (x) would not
reasonably be expected to have a Material Adverse Effect or (y) which is
disclosed in the Offering Memorandum. There exists no condition that, with
notice, the passage of time or otherwise, would constitute a default under any
such document or instrument, except as disclosed in the Offering Memorandum.
(r) None of (A) the execution, delivery or performance by the Company
of this Agreement or any of the other Operative Documents to which it is a
party, (B) the issuance and sale of the Notes and, following the Reorganization,
the issuance of the Guarantees and (C) the consummation by the Company and,
following the Reorganization, Holdings of the transactions described in the
Offering Memorandum under the caption "Use of Proceeds," violates, conflicts
with or constitutes a breach of any of the terms or provisions of, or after
giving effect to the Reorganization will violate, conflict with or constitute a
breach of any of the terms or provisions of, or a default under (or an event
that with notice or the lapse of time, or both, would constitute a default), or
require consent under, or result in the imposition of a lien or encumbrance on
any properties of the Company, Holdings or the Guarantors, or an acceleration of
any indebtedness of the Company, Holdings or the Guarantors under (i) the
charter or bylaws of the Company, Holdings or the Guarantors, (ii) any bond,
debenture, note, indenture, mortgage, deed of trust or other agreement or
instrument to which the Company, Holdings or the Guarantors is a party, or by
which any of them or their property is or may be bound, (iii) any statute, rule
or regulation applicable to the Company, Holdings or the Guarantors or any of
their assets or properties or (iv) any judgment, order or decree of any court or
governmental agency or authority having jurisdiction over the Company, Holdings
or the Guarantors or any of their assets or properties, other than, in the case
of clause (ii) above, any default or violation that (a) would not reasonably be
12
expected to have a Material Adverse Effect or (b) which is disclosed in the
Offering Memorandum. No consent, approval, authorization or order of, or filing,
registration, qualification, license or permit of or with, (A) any court or
governmental agency, body or administrative agency or (B) any other person is
required for (i) the execution, delivery and performance by the Company,
Holdings or the Guarantors of this Agreement or any of the other Operative
Documents to which they are a party or (ii) the issuance and sale of the Notes
and the transactions contemplated hereby and thereby, except such as have been
or will be obtained and made (x) in connection with the court proceedings
relating to the Reorganization, (y) otherwise on or prior to the Closing Date or
(z), in the case of the Registration Rights Agreement, will be obtained and made
under the Securities Act, the Trust Indenture Act, and state securities or Blue
Sky laws and regulations.
(s) There is (A) no action, suit, or proceeding before or by any court,
arbitrator or governmental agency, body or official, domestic or foreign, now or
after giving effect to the Reorganization pending or, to the knowledge of the
Company, threatened or contemplated to which the Company, Holdings or any
Guarantor is a party or to which the business or property of the Company,
Holdings or any Guarantor, is or may be subject, (B) no statute, rule,
regulation or order that has been enacted, adopted or issued by any governmental
agency or that has been proposed by any governmental body and (C) no injunction,
restraining order or order of any nature by a federal or state court or foreign
court of competent jurisdiction to which the Company, Holdings or any Guarantor
is or may be subject or after giving effect to the Reorganization will or may be
subject or to which the business, assets or property of the Company, Holdings or
any Guarantor is or may be subject or after giving effect to the Reorganization
will or may be subject, that, in the case of clauses (A), (B) and (C) above, (x)
is required to be disclosed in the Preliminary Offering Memorandum and the
Offering Memorandum and that is not so disclosed, or (y) would reasonably be
expected to, individually or in aggregate, result in a Material Adverse Effect
or challenge in any respect or seek to delay or prevent the issuance and sale of
the Notes or the Reorganization.
(t) No action has been taken and no statute, rule, regulation or order
has been enacted, adopted or issued by any governmental agency that prevents the
issuance of the Notes or the Guarantees or prevents or suspends the use of the
Offering Memorandum; no injunction, restraining order or order of any kind by a
federal or state court of competent jurisdiction has been issued that prevents
the issuance of the Notes or Guarantees or prevents or suspends the sale of the
Notes or Guarantees in any jurisdiction referred to in Section 4(e) hereof or
that could adversely affect the consummation of the transactions contemplated by
this Agreement or the Offering Memorandum; and every request of any securities
authority or agency of any jurisdiction for additional information has been
complied with in all material respects.
(u) There is not, nor after giving effect to the Reorganization with
respect to Holdings or any Guarantor will there be, (A) any significant unfair
labor practice complaint pending against the Company, Holdings or any Guarantor
nor, to the knowledge of the Company, threatened against any of them, before the
National Labor Relations Board, any state or local labor relations board or any
foreign labor relations board, and no significant grievance or significant
arbitration proceeding arising out of or under any collective bargaining
agreement is so pending against the Company, Holdings or any Guarantor nor, to
the knowledge of the Company, threatened against any of them, (B) any
significant strike, labor dispute, slowdown or stoppage pending against the
13
Company, Holdings or any Guarantor nor, to the knowledge of the Company,
threatened against any of them, nor (C) to the knowledge of the Company, any
union representation question existing with respect to the employees of the
Company, Holdings or any Guarantor that, in the cases of clauses (A), (B) or (C)
above, would reasonably be expected to result in a Material Adverse Effect. To
the knowledge of the Company, no collective bargaining organizing activities are
taking place with respect to the Company, Holdings or any Guarantor. None of the
Company, Holdings or any Guarantor has violated (x) any federal, state or local
law or foreign law relating to discrimination in hiring, promotion or pay of
employees, (y) any applicable wage or hour laws or (z) any provision of the
Employee Retirement Income Security Act of 1974, as amended, and the regulations
and published interpretations thereunder (collectively, "ERISA"), which in the
case of clause (x), (y) or (z) above would reasonably be expected to result in a
Material Adverse Effect.
(v) Except as disclosed in the Offering Memorandum, and except for such
matters as would not, individually or in the aggregate, either result in a
Material Adverse Effect or require disclosure in the Offering Memorandum, the
Company, Holdings and the Guarantors (1) are conducting and have conducted their
businesses, operations and facilities in compliance with Environmental Laws; (2)
have duly obtained, possess, maintain in full force and effect, and have
fulfilled and performed all of their obligations under any and all permits,
licenses or registrations required under Environmental Law ("ENVIRONMENTAL
PERMITS"); (3) are not party to, or otherwise bound by, any contract under which
the Company or any of its subsidiaries is obligated by any indemnification,
covenant, restriction or other undertaking concerning any material liability
under Environmental Law or related to the remediation of any Hazardous
Substances (as defined below); (4) have not received any notice from a
governmental authority or any other third party alleging any violation of
Environmental Law or liability thereunder (including, without limitation,
liability as a "potentially responsible party" and/or for costs of investigating
or remediating sites containing Hazardous Substances and/or damages to natural
resources); (5) are not subject to any pending or, to the knowledge of the
Company, the Guarantors or any of their respective subsidiaries, threatened
claim or other legal proceeding under any Environmental Laws against the Company
or its subsidiaries; (6) do not have any knowledge of any pending Environmental
Law, or any unsatisfied condition in an Environmental Permit, or any release of
Hazardous Substances that, individually or in the aggregate, can reasonably be
expected to form the basis of any such claim or legal proceeding against the
Company, Holdings or any Guarantor or to require any material capital
expenditures to maintain the Company's or the subsidiaries' compliance with
Environmental Law or with their Environmental Permits; and (7) does not (a) rely
on any third party for an indemnity for, or the contractual assumption of, any
material remediation obligation or liability under Environmental Law and (b)
have reasonable cause to doubt such third party's ability to comply with such
indemnity or contractual assumption. As used in this paragraph, "ENVIRONMENTAL
LAWS" means any and all applicable federal, state, local, and foreign laws,
statutes, ordinances, rules, regulations, requirements and common law, or any
enforceable administrative or judicial interpretation, order, consent, decree or
judgment thereof, relating to pollution or the protection of human health or the
environment, including, without limitation, those relating to, regulating, or
imposing liability or standards of conduct concerning (i) noise or odor, (ii)
emissions, discharges, releases or threatened releases of Hazardous Substances
into ambient air, surface water, groundwater or land, (iii) the generation,
manufacture, processing, distribution, use, treatment, storage, disposal,
release, transport or handling of, or exposure to, Hazardous Substances, (iv)
the protection of wildlife or endangered or threatened species, or (v) the
14
investigation, remediation or cleanup of any Hazardous Substances. As used in
this paragraph, "HAZARDOUS SUBSTANCES" means pollutants, contaminants or
hazardous or toxic substances, materials, constituents or wastes or toxins,
petroleum, petroleum products and their breakdown constituents, or any other
chemical substance regulated under Environmental Laws.
(w) Each of the Company, Holdings and Guarantors has, and after giving
effect to the Reorganization will have, (A) good and marketable title to all of
the properties and assets described in the Offering Memorandum as owned by it,
free and clear of all liens, charges, encumbrances and restrictions, except such
as are described in the Offering Memorandum or as would not have a Material
Adverse Effect, (B) peaceful and undisturbed possession of its properties under
all material leases to which it is a party as lessee, (C) all licenses,
certificates, permits, authorizations, approvals, franchises and other rights
from, and has made all declarations and filings with, all federal, state and
local authorities, all self-regulatory authorities and all courts and other
tribunals necessary to engage in the business conducted by it in the manner
described in the Offering Memorandum, except as described in the Offering
Memorandum or where failure to hold such authorizations would not, individually
or in the aggregate, have a Material Adverse Effect (each an "AUTHORIZATION")and
(D) no reason to believe that any governmental body or agency is considering
limiting, suspending or revoking any such Authorization. Except where the
failure to be in full force and effect would not have a Material Adverse Effect,
all such Authorizations are, and after giving effect to the Reorganization will
be, valid and in full force and effect, and each of the Company, Holdings and
Guarantors is, and after giving effect to the Reorganization will be, in
compliance in all material respects with the terms and conditions of all such
Authorizations and with the rules and regulations of the regulatory authorities
having jurisdiction with respect thereto. All material leases to which the
Company, Holdings or any Guarantor is a party are, and after giving effect to
the Reorganization will be, valid and binding, and no default by the Company,
Holdings or any Guarantor, as the case may be, has occurred and is continuing
thereunder, or after giving effect to the Reorganization will have occurred and
will be continuing thereunder, and, to the knowledge of the Company, no material
defaults by the landlord are existing under any such lease, or after giving
effect to the Reorganization will be existing under any such lease, except those
defaults that could not reasonably be expected to result in a Material Adverse
Effect.
(x) Neither the Company, Holdings nor any Guarantor nor any of their
respective officers, directors, partners, employees, agents or affiliates or any
other person acting on behalf of the Company, Holdings or any Guarantor has,
directly or indirectly, given or agreed to give any money, gift or similar
benefit (other than legal price concessions to customers in the ordinary course
of business) to any customer, supplier, employee or agent of a customer or
supplier, official or employee of any governmental agency (domestic or foreign),
instrumentality of any government (domestic or foreign) or any political party
or candidate for office (domestic or foreign) or other person who was, is or may
be in a position to help or hinder the business of the Company, Holdings or any
Guarantor (or assist the Company, Holdings or any Guarantor in connection with
any actual or proposed transaction), which (A) might subject the Company,
Holdings or any Guarantor, or any other individual or entity, to any damage or
penalty in any civil, criminal or governmental litigation or proceeding
(domestic or foreign), (B) if not given in the past, might have had a material
adverse effect on the assets, business or operations of the Company, Holdings or
any Guarantor or (C) if not continued in the future, might have a Material
Adverse Effect.
15
(y) Each of the Company, Holdings and Guarantors owns, possesses or has
the right to employ and, after giving effect to the Reorganization will own,
possess or have the right to employ, all patents, patent rights, licenses
(including all FCC, state, local or other regulatory licenses), inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, software, systems or
procedures), trademarks, service marks and trade names, inventions, computer
programs, technical data and information (collectively, the "INTELLECTUAL
PROPERTY") presently employed by it in connection with the businesses now
operated by it or that are proposed to be operated by it, including as a result
of the Reorganization, or its subsidiaries free and clear of and without
violating any right, claimed right, charge, encumbrance, pledge, security
interest, restriction or lien of any kind of any other person and none of the
Company, Holdings or any Guarantor has received any notice of infringement of or
conflict with asserted rights of others with respect to any of the foregoing,
except as (A) disclosed in the Offering Memorandum or (B) as would not
reasonably be expected to have a Material Adverse Effect. To the knowledge of
the Company, the use of the Intellectual Property in connection with the
business and operations of the Company, Holdings and the Guarantors does not
infringe on the rights of any person, except as disclosed in the Offering
Memorandum or as would not reasonably be expected to have a Material Adverse
Effect.
(z) All material tax returns required to be filed through the date
hereof by the Company, Holdings or any Guarantor in all jurisdictions have, and
after giving effect to the Reorganization will have, been so filed. All taxes,
including withholding taxes, penalties and interest, assessments, fees and other
charges due or claimed to be due from such entities or that are due and payable
through the date hereof have been paid, other than those being contested in good
faith and for which adequate reserves have been provided or those currently
payable without penalty or interest. To the knowledge of the Company, there are,
and after giving effect to the Reorganization there will be, no material
proposed additional tax assessments against the Company, Holdings or any
Guarantor, or the assets or property of the Company, Holdings or any Guarantor.
Each of the Company, Holdings and Guarantors has made adequate charges, accruals
and reserves in the applicable financial statements included in the Offering
Memorandum in respect of all federal, state and foreign income and franchise
taxes for all periods as to which the tax liability of the Company or any of its
consolidated subsidiaries has not been finally determined.
(aa) The Company is not, and upon consummation of the Reorganization,
Holdings or any Guarantor will not be, (A) required to register as an
"investment company within the meaning of the Investment Company Act of 1940, as
amended (the "INVESTMENT COMPANY ACT"), or (B) a "holding company" or a
"subsidiary company" or an "affiliate" of a holding company within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
(bb) Except as disclosed in the Offering Memorandum, there are no
holders of securities of the Company, Holdings or any Guarantor who, by reason
of the execution by the Company of this Agreement or any of the Operative
Documents, or the consummation by the Company of the Reorganization or the
transactions contemplated hereby and thereby, have the right to request or
demand that the Company, Holdings or any Guarantor register under the Securities
Act or analogous foreign laws and regulations securities held by them, other
than such that have been duly waived.
16
(cc) Each of the Company, Holdings and the Guarantors maintains, and
after giving effect to the Reorganization will maintain, a system of internal
accounting controls sufficient to provide reasonable assurance that (A)
transactions are executed in accordance with management's general or specific
authorizations, (B) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets, (C) access to assets is
permitted only in accordance with management's general or specific authorization
and (D) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to
any differences thereto.
(dd) Except as disclosed in the Offering Memorandum, each of the
Company, Holdings and Guarantors maintains, and after giving effect to the
Reorganization will maintain, insurance covering its properties, operations,
personnel and businesses. Such insurance insures against such losses and risks
as are adequate in accordance with customary industry practice to protect the
Company, its subsidiaries and their respective businesses. None of the Company,
Holdings or any Guarantor has received notice from any insurer or agent of such
insurer that substantial capital improvements or other expenditures will have to
be made in order to continue such insurance. All such insurance is outstanding
and duly in force on the date hereof, subject only to changes made in the
ordinary course of business, consistent with past practice, which do not, singly
or in the aggregate, materially alter the coverage thereunder or the risks
covered thereby. The Company has no reason to believe that the Company, Holdings
or any Guarantor will not be able (A) to renew its existing insurance coverage
as and when such policies expire or (B) to obtain comparable coverage from
similar institutions as may be necessary or appropriate to conduct their
business as now conducted or as presently contemplated and at a cost that would
not result in a Material Adverse Effect.
(ee) None of the Company, Holdings or any Guarantor nor any affiliate
of the foregoing (within the meaning of Rule 144A of the Securities Act) has (A)
taken, directly or indirectly, any action designed to, or that might reasonably
be expected to, cause or result in stabilization or manipulation of the price of
any security of the Company, Holdings or any Guarantor to facilitate the sale or
resale of the Notes or (B) since the date of the Preliminary Offering Memorandum
(x) sold, bid for, purchased or paid any person any compensation for soliciting
purchases of the Notes or (y) paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities of the
Company, Holdings or any Guarantor.
(ff) The accountants who have certified or will certify the financial
statements included or to be included as part of the Offering Memorandum are
independent registered accountants as required by the Act and the Exchange Act.
The historical financial statements present fairly in all material respects the
financial position and results of operations of Holdings and its subsidiaries on
a consolidated basis at the dates and for the periods indicated. Such financial
statements have been prepared in accordance with United States generally
accepted accounting principles ("U.S. GAAP") applied on a consistent basis
throughout the periods presented. The pro forma financial statements included in
the Offering Memorandum have been prepared on a basis consistent with such
historical statements of Holdings, except for the pro forma adjustments
specified therein, and give effect to assumptions made on a reasonable basis and
present fairly in all material respects the historical and proposed transactions
associated with the Offering, the Reorganization and contemplated by this
Agreement and the other Operative Documents. The other financial and statistical
17
information and data included in the Offering Memorandum derived from the
historical and pro forma financial statements, are accurately presented in all
material respects and prepared on a basis consistent with the financial
statements, historical and pro forma, as the case may be, included in the
Offering Memorandum and the books and records of Holdings and its subsidiaries.
(gg) The Company, Holdings, Guarantors and any "employee benefit plan"
(as defined under ERISA) established or maintained by the Company, Holdings or
any Guarantor or their "ERISA Affiliates" (as defined below) are in compliance
in all material respects with ERISA. "ERISA AFFILIATE" means, with respect to
the Company, Holdings or any Guarantor, any member of any group of organizations
described in Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of
1986, as amended, and the regulations and published interpretations thereunder
(the "Code") of which the Company, Holdings or any Guarantor is a member. No
"reportable event" (as defined under ERISA) has occurred or is reasonably
expected to occur with respect to any "employee benefit plan" established or
maintained by the Company, Holdings or any Guarantor, or any of their ERISA
Affiliates. No "employee benefit plan" established or maintained by the Company,
Holdings or any Guarantor, or any of their ERISA Affiliates, if such "employee
benefit plan" were terminated that would reasonably be expected to have a
Material Adverse Effect, would have any "amount of unfunded benefit liabilities"
(as defined under ERISA) that would reasonably be expected to have a Material
Adverse Effect. None of the Company, Holdings or any Guarantor, or any of their
ERISA Affiliates has incurred or reasonably expects to incur any liability under
(i) Title IV of ERISA with respect to termination of, or withdrawal from, any
"employee benefit plan" or (ii) Sections 412, 4971, 4975 or 4980B of the Code
that would reasonably be expected to have a Material Adverse Effect. Except as
would not reasonably be expected to have a Material Adverse Effect, each
"employee benefit plan" established or maintained by the Company, any of its
subsidiaries, or any of their ERISA Affiliates that is intended to be qualified
under Section 401(a) of the Code is so qualified and nothing has occurred,
whether by action or failure to act, which would cause the loss of such
qualification.
(hh) No registration under the Securities Act of the Notes is required
for the sale of the Notes to the Initial Purchasers as contemplated hereby or
for the Exempt Resales assuming (A) that the purchasers who buy the Notes in the
Exempt Resales are Eligible Purchasers and (B) the accuracy of the Initial
Purchasers' representations regarding the absence of general solicitation in
connection with the sale of Notes to the Initial Purchasers and the Exempt
Resales contained herein. No form of general solicitation or general advertising
(as defined in Regulation D under the Securities Act) was used by the Company or
its representatives (other than the Initial Purchasers, as to which the Company
make no representation or warranty) in connection with the offer and sale of any
of the Notes in connection with Exempt Resales, or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act,
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 the Notes have been issued and sold by the Company, Holdings or any
Guarantor within the six-month period immediately prior to the date hereof.
18
(ii) The execution and delivery of this Agreement, the other Operative
Documents and the sale of the Notes to be purchased by Eligible Purchasers will
not involve any prohibited transaction described in Section 406(a) of ERISA or
Section 4975(c)(A)-(D) of 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
Eligible Purchasers as set forth in the Offering Memorandum under the caption
"Notice to Investors."
(jj) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its date, and each amendment or supplement thereto, as of its
date, contains the information specified in, and meets the requirements of, Rule
144A(d)(4) under the Securities Act.
(kk) Prior to the effectiveness of any Registration Statement, the
Indentures are not required to be qualified under the Trust Indenture Act.
(ll) None of the Company, Holdings any Guarantor nor any of their
respective affiliates or any person acting on their behalf (other than the
Initial Purchasers, as to whom the Company makes no representation) has engaged
or will engage in any directed selling efforts within the meaning of Regulation
S with respect to the Notes.
(mm) None of the execution, delivery and performance of this Agreement,
the issuance and sale of the Notes, the application of the proceeds from the
issuance and sale of the Notes and the consummation of the transactions
contemplated thereby as set forth in the Offering Memorandum, will violate
Regulations T, U or X promulgated by the Board of Governors of the Federal
Reserve System.
(nn) Except pursuant to this Agreement and the Reorganization, there
are no contracts, agreements or understandings between the Company, Holdings and
any Guarantor, and any other person that would give rise to a valid claim
against the Company, Holdings, any Guarantor, or the Initial Purchasers, for a
brokerage commission, finder's fee or like payment in connection with the
issuance, purchase and sale of the Notes.
(oo) Upon consummation of the Reorganization, Holdings and the
Guarantors are and will be the sole beneficial owners of the Collateral (as
defined in the Security Agreement) and other than Permitted Liens no Lien will
exist upon any such Collateral (and no right or option to acquire the same will
exist in favor of any other person or entity), except for the pledge and
security interest in favor of the Collateral Trustee to be created or provided
for in the Security Agreement and in favor of the Collateral Trustee for the
benefit of the holders of the Notes and other existing and future indebtedness
as described in the Offering Memorandum, which pledge and security interest
constitutes a first priority perfected pledge and security interest in and to
all of the Collateral.
(pp) After giving effect to the Reorganization, Holdings is and will be
the sole beneficial owner of the issued and outstanding capital stock described
in Schedule I to the Pledge Agreement (the "PLEDGED SHARES") (and no right or
option to acquire the same will exist in favor of any other person or entity),
except for the pledge and security interest in favor of the Trustee to be
created or provided for in the Security Agreement and in favor of the Trustee
for the benefit of the holders of other existing and future indebtedness as
described in the Offering Memorandum, which pledge and security interest
constitutes a first priority perfected pledge and security interest in and to
all of the Pledged Shares.
19
(qq) Each of the Pledge Agreement and Security Agreement will secure
the obligations of the Company under the Notes and the Indentures.
(rr) Neither the Company nor, after giving effect to the
Reorganization, Holdings nor any Guarantor intends to nor believes that it will,
incur debts beyond their ability to pay such debts as they mature. The present
fair saleable value of the assets of the Company exceeds, and after the
Reorganization, the assets of the Company, Holdings and the Guarantors will
exceed, the amount that will be required to be paid on or in respect of its
existing debts and other liabilities (including contingent liabilities) as they
become absolute and matured. The assets of the Company and, after the
Reorganization, the assets of the Company, Holdings and the Guarantors, will not
constitute unreasonably small capital to carry out their respective businesses
as conducted or as proposed to be conducted. Upon the issuance of the Notes, the
present fair saleable value of the assets of the Company and, after the
Reorganization, the assets of the Company, Holdings and the Guarantors, will not
constitute unreasonably small capital to carry out its business as now conducted
and will exceed the amount that will be required to be paid on or in respect of
its existing debts and other liabilities (including contingent liabilities) as
they become absolute and matured, including the capital needs of each of the
Company, Holdings, and the Guarantors, taking into account the projected capital
requirements and capital availability, and after giving effect to the
Reorganization.
(ss) Each certificate signed by any officer of the Company and
delivered to the Initial Purchasers or counsel for the Initial Purchasers shall
be deemed to be a representation and warranty by the Company to the Initial
Purchasers as to the matters covered thereby.
(tt) The Company, Holdings and the Guarantors and their Affiliates and
all persons acting on their behalf (other than the Initial Purchasers, as to
whom the Company and the Guarantors make no representation) have complied with
and will comply with the offering restrictions requirements of Regulation S in
connection with the offering of the Notes outside the United States and, in
connection therewith, the Preliminary Offering Memorandum and the Offering
Memorandum will contain the disclosure required by Rule 902(g)(2).
(uu) Since the respective dates as of which information is given in the
Offering Memorandum, and except as disclosed in the Offering Memorandum, and
other than the Reorganization, there has not been any material adverse change,
or any development that is reasonably likely to result in a material adverse
change, in the capital stock or the long-term debt, or material increase in the
short-term debt, of the Company, Holdings or any Guarantor from that set forth
in the Offering Memorandum and no dividend or distribution of any kind shall
have been declared, paid or made by the Company, Holdings or any Guarantor on
any class of their respective capital stock whether or not arising from
transactions in the ordinary course of business, there has not been any material
adverse change, or any development that is reasonably likely to result in a
material adverse change in or affecting (i) the business, condition (financial
or otherwise), results of operations, properties or prospects of the Company,
Holdings or any Guarantor, individually or taken as a whole; (ii) the ability of
the Company to consummate the Offering, the Reorganization or any of the other
transactions contemplated by the Operative Documents. Since the date of the
20
latest balance sheet included in the Offering Memorandum none of the Company,
Holdings or any Guarantor shall have incurred any liabilities or obligations,
whether direct or indirect, liquidated or contingent, matured or unmatured, or
entered into any transaction, including any acquisition or disposition of any
business or asset, that are material, individually or in the aggregate, to the
Company, Holdings or any Guarantor, individually or taken as a whole, except for
liabilities, obligations and transactions that are disclosed in the Offering
Memorandum. Since the date hereof and since the dates as of which information is
given in the Offering Memorandum, and except as disclosed in the Offering
Memorandum, there shall not have occurred any material adverse change, or any
development that is reasonably likely to result in a Material Adverse Effect.
(vv) Except as disclosed in the Offering Memorandum, there exist no
conditions, nor will there exist any conditions after giving effect to the
Reorganization, that would constitute a default (or an event which with notice
or the lapse of time, or both, would constitute a default) under any of the
Operative Documents or any of the contracts described in the Offering Memorandum
by the Company, Holdings or any Guarantor, nor has any of the foregoing received
a notice or claim of any such default or obtained knowledge of any breach of
such contracts by the other party or parties thereto.
(ww) None of the Company, Holdings nor any Guarantor has distributed
any written offering material in connection with the offering and sale of the
Notes other than the Preliminary Offering Memorandum and the Offering
Memorandum.
The Company acknowledges that the Initial Purchasers and, for purposes
of the opinions to be delivered to the Initial Purchasers pursuant to Section 8
hereof, counsel for Holdings, the Note holders and counsel for the Initial
Purchasers, will rely upon the accuracy and truth of the foregoing
representations and hereby consent to such reliance.
6. Representations and Warranties of the Initial Purchasers. Each of
the Initial Purchasers, severally and not jointly, represents, warrants and
covenants to the Company and agrees that:
(a) Such Initial Purchaser is a QIB, with such knowledge and experience
in financial and business matters as are necessary in order to evaluate the
merits and risks of an investment in the Notes.
(b) Such Initial Purchaser (A) is not acquiring the Notes with a view
to any distribution thereof that would violate the Securities 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 Notes only to QIBs in
reliance on the exemption from the registration requirements of the Securities
Act provided by Rule 144A and non-US persons outside the United States to whom
such Initial Purchaser reasonably believes offers and sales of the Notes may be
made in reliance upon, and in accordance with, Regulation S, in each case upon
the terms and conditions set forth in this agreement and the Offering
Memorandum.
21
(c) No form of general solicitation or general advertising (within the
meaning of Regulation D under the Securities Act) has been or will be used by
such Initial Purchaser or any of its representatives in connection with the
offer and sale of any of the Notes, 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.
(d) Such Initial Purchaser agrees that it has not offered or sold and
will not offer or sell the Notes 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 until 40 days after the later of the commencement of the
offering of the Notes 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 40-day distribution compliance period, it will not cause any advertisement
with respect to the Initial Notes (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 Initial Notes, except such
advertisements as permitted by and include the statements required by Regulation
S.
(e) Each Initial Purchaser agrees that at or prior to confirmation of
all sales of the Securities pursuant to Regulation S, it will have sent to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases Securities from it during the Restricted Period a
confirmation or notice substantially to the following effect:
"The Notes covered hereby and the guarantees thereof have not been
registered under the U.S. Securities Act of 1933 (the "Securities Act") and may
not be offered and sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the commencement of the offering or
the closing date, except in either case in accordance with Regulation S or Rule
144A if available under the Securities Act. Terms used above have the meanings
assigned to them in Regulation S."
(f) The sales of the Securities pursuant to Regulation S are "offshore
transactions" and are not part of a plan or scheme to evade the registration
provisions of the Securities Act.
(g) Such Initial Purchaser understands that the Company, for purposes
of the opinions to be delivered to the Initial Purchasers pursuant to Section 8
hereof, counsel for the Company and Holdings counsel for the Initial Purchasers
will rely upon the accuracy and truth of the foregoing representations and
hereby consents to such reliance.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless (i) each Initial
Purchaser, (ii) each person, if any, who controls any of the Initial Purchasers
within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act and (iii) the respective officers, directors, partners, employees,
representatives and agents of each of the Initial Purchasers or any controlling
person to the fullest extent lawful, from and against any and all losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to attorneys' fees and any and all expenses whatsoever incurred in
22
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), joint or several, 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 Preliminary Offering Memorandum or
the Offering Memorandum, or in any supplement thereto or amendment thereof, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under 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 alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company in writing by or on behalf of any Initial Purchaser
expressly for use therein. The foregoing indemnity agreement shall be in
addition to any liability which the Company may otherwise have, including under
this Agreement.
(b) Each Initial Purchaser, severally and not jointly, agrees to
indemnify and hold harmless (i) the Company, (ii) each 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, and (iii) the respective officers, directors,
partners, employees, representatives and agents of the Company, against any
losses, liabilities, claims, damages and expenses whatsoever (including but not
limited to attorneys' fees and any and all 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), to which it 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 Preliminary Offering Memorandum or 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 required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under 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 untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company in writing 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 discounts and commissions received by such Initial
Purchaser, as set forth on the cover page of the Offering Memorandum. This
indemnity will be in addition to any liability which any Initial Purchaser may
otherwise have, including under this Agreement.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any 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 except to the extent that it has been prejudiced
23
in any material respect by such failure or from any liability which it may
otherwise have). In case any such action is brought against any indemnified
party, and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent it
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 the indemnifying parties in connection with the defense of such
action, (ii) the indemnifying parties shall not have employed counsel to take
charge of the defense of such action within a reasonable time after notice of
commencement of the action, 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 party or 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 of counsel
shall be borne by the indemnifying parties; provided, however, that the
indemnifying party under subsection (a) or (b) above shall only be liable for
the legal expenses of one counsel (in addition to any local counsel) for all
indemnified parties in each jurisdiction in which any claim or action is
brought. 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 prior written consent, provided that such consent was not
unreasonably withheld.
8. Contribution. In order to provide for contribution in circumstances
in which the indemnification provided for in Section 7 is for any reason held to
be unavailable from the Company, or is insufficient to hold harmless a party
indemnified thereunder, the Company, on the one hand, and the Initial
Purchasers, on the other hand, 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 in the case of
losses, claims, damages, liabilities and expenses suffered by the Company, any
contribution received by the Company from persons, other than the Initial
Purchasers, who may also be liable for contribution, including 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 and the Initial
Purchasers may be subject, in such proportion as is appropriate to reflect the
relative benefits received by the Company, on 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, 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 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 one
hand, and the Initial Purchasers, on the other hand, shall be deemed to be in
the same proportion as (i) the total proceeds from the offering of Notes (net of
discounts but before deducting expenses) received by the Company and (ii) the
discounts and commissions received by the Initial Purchasers, respectively, in
each case as set forth in the table on the cover page of the Offering
Memorandum. The relative fault of the Company, on one hand, and of the Initial
24
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 Initial Purchasers 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 even if the Initial Purchasers were treated as
one entity for such purposes or by any other method of allocation which does not
take into account the equitable considerations referred to above.
Notwithstanding the provisions of this Section 8, (A) in no case shall any
Initial Purchaser be required to contribute any amount in excess of the amount
by which the discounts and commissions applicable to the Notes purchased by such
Initial Purchaser pursuant to this Agreement exceeds the amount of any damages
which such Initial Purchaser has otherwise been required to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission and (B) 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. For purposes of this
Section 8, (x) each person, if any, who controls an Initial Purchaser within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act
and (y) the respective officers, directors, partners, employees, representatives
and agents of any Initial Purchaser or any controlling person shall have the
same rights to contribution as such Initial Purchaser, and (1) each 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 and (2) the respective officers,
directors, partners, employees, representatives and agents of the Company shall
have the same rights to contribution as the Company, subject in each case to
clauses (A) and (B) of this Section 8. 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 under this Section 8, notify such party
or parties from whom contribution may be sought, but the failure 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. No party shall be liable for contribution with respect
to any action or claim settled without its prior written consent, provided that
such written consent was not unreasonably withheld. The Initial Purchasers'
obligations to contribute pursuant to this Section 8 are several in proportion
to the respective principal amount of Notes purchased by each of the Initial
Purchasers hereunder and not joint.
9. Conditions of Initial Purchasers' Obligations. The obligation of the
Initial Purchasers to purchase and pay for the Notes on the Closing Date will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of officers of the Company
made pursuant to the provisions hereof, to the performance in all material
respects by the Company of each of its obligations hereunder and to the
following additional conditions precedent:
(a) All of the representations and warranties of the Company contained
in this Agreement and in the Operative Documents (to the extent such Operative
Documents are in effect) shall be true and correct on the date hereof and on the
Closing Date with the same force and effect as if made on and as of the date
hereof and the Closing Date, respectively. The Company shall have performed or
complied in all material respects with all of the agreements herein contained
and required to be performed or complied with by it at or prior to the Closing
Date.
25
(b) The Offering Memorandum shall have been printed and copies
distributed to the Initial Purchasers not later than 10:00 A.M., New York City
time, on the second business day following the date of this Agreement or at such
later date and time as to which the Initial Purchasers may agree, and no stop
order suspending the qualification or exemption from qualification of the Notes
in any jurisdiction referred to in Section 4(e) shall have been issued and no
proceeding for that purpose shall have been commenced or shall be pending or
threatened.
(c) No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental agency
which would, as of the Closing Date, prevent the issuance of the Notes; no
action, suit or proceeding shall have been commenced and be pending against or
affecting or, to the knowledge of the Company, threatened against, the Company,
Holdings or any Guarantor before any court or arbitrator or any governmental
body, agency or official that, if adversely determined, could reasonably be
expected to result in a Material Adverse Effect; and no stop order shall have
been issued preventing the use of the Offering Memorandum, or any amendment or
supplement thereto, or which could reasonably be expected to have a Material
Adverse Effect.
(d) Since the dates as of which information is given in the Offering
Memorandum and except as disclosed in the Offering Memorandum, (i) there shall
not have been any material adverse change, or any development that is reasonably
likely to result in a material adverse change, in the capital stock or the
long-term debt, or material increase in the short-term debt, of the Company,
Holdings or any Guarantor from that set forth in the Offering Memorandum, (ii)
no dividend or distribution of any kind shall have been declared, paid or made
by the Company, Holdings or any Guarantor on any class of their capital stock,
and (iii) none of the Company, Holdings or any Guarantor shall have incurred any
liabilities or obligations, direct or contingent, that are material,
individually or in the aggregate, to the Company, Holdings or Guarantors, taken
as a whole, and that are required to be disclosed on a balance sheet or notes
thereto in accordance with U.S. GAAP and are not disclosed on the latest balance
sheet or notes thereto included in the Offering Memorandum. Since the date
hereof and since the dates as of which information is given in the Offering
Memorandum, and except as disclosed in the Offering Memorandum, there shall not
have occurred any material adverse change in the business, financial condition
or results of operation of the Company, Holdings and Guarantors, taken as a
whole.
(e) The Initial Purchasers shall have received certificates, dated the
Closing Date, signed on behalf of the Company, in form and substance
satisfactory to the Initial Purchasers, confirming, as of the Closing Date,
among other matters, the matters set forth in paragraphs (a), (b), (c) and (d)
of this Section 9 and that, as of the Closing Date, the obligations of the
Company to be performed hereunder on or prior thereto have been duly performed.
(f) The Initial Purchasers shall have received on the Closing Date an
opinion and letter, each dated the Closing Date, in form and substance
satisfactory to the Initial Purchasers and counsel for the Initial Purchasers,
of Weil, Gotshal & Xxxxxx LLP, counsel for Holdings, to the effect set forth in
Exhibit B hereto.
26
(g) The Initial Purchasers shall have received on the Closing Date an
opinion, dated the Closing Date, in form and substance satisfactory to the
Initial Purchasers and counsel for the Initial Purchasers, of Xxxxx, Nace,
Xxxxxxxxx & Xxxxx Chartered, special communications counsel for Holdings, to the
effect set forth in Exhibit C hereto.
(h) The Initial Purchasers shall have received on the Closing Date an
opinion, dated the Closing Date, in the form and substance satisfactory to the
Initial Purchasers and counsel for the Initial Purchasers, of Xxxx, Xxxxx,
Rifkind, Xxxxxxx and Xxxxxxxx LLP, counsel to the Company, to the effect set
forth in Exhibit D hereto.
(i) The Initial Purchasers shall have received on the Closing Date
negative assurance letter , dated the Closing Date, in the form and substance
satisfactory to the Initial Purchasers and counsel for the Initial Purchasers,
from Xxxxx X. Xxxxxx, Chief Financial Officer of Holdings, to the effect set
forth in Exhibit E hereto.
(j) The Initial Purchasers shall have received on the Closing Date the
Indemnity Agreement, dated the Closing Date, in the form and substance
satisfactory to the Initial Purchasers and counsel for the Initial Purchasers,
executed by Holdings, substantially in the form attached hereto as Exhibit F.
(k) At the time this Agreement is executed and at the Closing Date, the
Initial Purchasers shall have received from Ernst & Young LLP, independent
registered public accountants, dated as of the date of this Agreement and as of
the Closing Date, customary comfort letters addressed to the Initial Purchasers
and in form and substance satisfactory to the Initial Purchasers and counsel for
the Initial Purchasers with respect to the financial statements and certain
financial information of Holdings and the Guarantors contained in the Offering
Memorandum and/or incorporated therein by reference.
(l) The Initial Purchasers shall have received an opinion, dated the
Closing Date, in form and substance reasonably satisfactory to the Initial
Purchasers, of Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers,
covering such matters as are customarily covered in such opinions.
(m) Xxxxxx & Xxxxxxx LLP shall have been furnished with such documents,
in addition to those set forth above, as they may reasonably require for the
purpose of enabling them to review or pass upon the matters referred to in this
Section 9 and in order to evidence the accuracy, completeness or satisfaction in
all material respects of any of the representations, warranties or conditions
herein contained.
(n) Prior to the Closing Date, the Company, Holdings and the Guarantors
shall have furnished to the Initial Purchasers and to counsel to the Initial
Purchasers such further information, certificates, papers and documents as they
may reasonably request, all in form and substance reasonably satisfactory to
them.
(o) The Company and the Trustee shall have entered into the Indentures
and the Initial Purchasers shall have received counterparts, conformed as
executed, thereof.
27
(p) The Company and the Initial Purchasers shall have entered into the
Registration Rights Agreement and the Initial Purchasers shall have received
counterparts, conformed as executed, thereof.
(q) The Company, the Trustee and the Collateral Trustee shall have
entered into the Security Agreement and the Initial Purchasers shall have
received counterparts, conformed as executed thereof.
(r) The Company, the Trustee and the Collateral Trustee shall have
entered into the Pledge Agreement and the Initial Purchasers shall have received
counterparts, conformed as executed thereof.
(s) The Company and the Escrow Agent shall have entered into the Escrow
and Security Agreement and the Initial Purchasers shall have received
counterparts conformed as executed thereof.
(t) On or after the date hereof, (i) there shall not have occurred any
downgrading, suspension or withdrawal of, nor shall there have been any
announcement of any potential or intended downgrading, suspension or withdrawal
of, or of any review (or of any potential or intended review) for a possible
downgrading, or with negative implications, or direction not determined of, any
rating of the Company, Holdings or any Guarantor or any securities of the
Company, Holdings 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 adverse
change, nor shall any notice have been given of any potential or intended
adverse change, in the outlook for any rating of the Company, Holdings or any
Guarantor or any securities of the Company, Holdings 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 the
Notes than that on which the Notes were marketed.
(u) The Notes shall have been approved for trading on PORTAL.
(v) All opinions, certificates, letters and other documents required by
this Section 9 to be delivered by the Company, Holdings and the Guarantors will
be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to the Initial Purchasers. The Company,
Holdings and Guarantors shall furnish the Initial Purchasers with such conformed
copies of such opinions, certificates, letters and other documents as they shall
reasonably request.
(w) Each of the other agreements or instruments executed in connection
with the transactions contemplated hereby shall be reasonably satisfactory in
form and substance to the Initial Purchasers and shall have been executed and
delivered by all the respective parties thereto and shall be in full force and
effect, and there shall have been no material amendments, alterations,
modifications or waivers of any provision thereof since the date of this
Agreement.
28
(x) The Pre-Funded Amount shall have been deposited into the Escrow
Account by Holdings and shall be remaining in the Escrow Account, and the
Initial Purchasers and counsel to the Initial Purchasers shall have received
copies of such papers and documents as they may reasonably request in connection
therewith.
(y) Holdings shall have filed such petitions for bankruptcy in the
United States Bankruptcy Court for the District of Delaware as are necessary to
commence the Pre-Packaged Plan and the Initial Purchasers and counsel to the
Initial Purchasers shall have received copies of such papers and documents as
they may reasonably request in connection therewith.
(z) All proceedings taken in connection with the issuance of the Notes
and the transactions contemplated by this Agreement and all documents and papers
relating hereto shall be reasonably satisfactory to the Initial Purchasers and
counsel to the Initial Purchasers.
10. Initial Purchasers' Information. The Company acknowledges that the
statements with respect to the offering of the Notes set forth in the first
sentence of the third paragraph, the seventh sentence of the fifth paragraph and
the sixth paragraph of the "Plan of Distribution" section in the Offering
Memorandum constitute the only information relating to the Initial Purchasers
furnished to the Company in writing by or on behalf of any of the Initial
Purchasers expressly for use in the Offering Memorandum.
11. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Initial Purchasers and the Company
contained in this Agreement, including the agreements contained in Sections 4(g)
and 12(d), 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, any controlling person thereof, or by or on behalf of the Company 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
Sections 5 and 6 and the agreements contained in Sections 4(g), 7, 8 and 12(d)
shall survive the termination of this Agreement, including any termination
pursuant to Section 12.
12. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon execution and delivery
of a counterpart hereof by each of the parties hereto.
(b) This Agreement may be terminated in the sole discretion of the
Initial Purchasers by notice to the Company from the Initial Purchasers, without
liability (other than with respect to Sections 7 and 8) on the Initial
Purchasers' part to the Company in the event that the Company has failed,
refused or been unable to perform or satisfy all conditions on their respective
parts to be performed or satisfied hereunder on or prior to the Closing Date,
any other condition to the obligations of the Initial Purchasers hereunder as
provided in Section 9 is not fulfilled when and as required, or if:
(i) in the reasonable judgment of the Initial Purchasers, any
material adverse change has occurred since 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) in the condition (financial or otherwise),
business, properties, assets, liabilities, prospects, net worth,
results of operations or cash flows of the Company, Holdings or the
Guarantors, taken as a whole, other than as set forth in the Offering
Memorandum;
29
(ii) any domestic or international event or act or occurrence has
materially disrupted, or in the opinion of the Initial Purchasers will
in the immediate future materially disrupt, the market for the
Company's, Holdings's or any Guarantor's securities or for securities
in general;
(iii) trading in securities generally on the New York Stock
Exchange, or the Nasdaq National Market, has been suspended or made
subject to material limitations, or minimum or maximum prices for
trading has been fixed, or maximum ranges for prices for securities
has been required, on the New York Stock Exchange or the Nasdaq
National Market, or by order of the Commission or other regulatory
body or governmental authority having jurisdiction;
(iv) a banking moratorium has been declared by any federal or
state authority, a moratorium in foreign exchange trading by major
international banks or persons has been declared, or if any material
disruption in commercial banking or securities settlement or clearance
services has occurred;
(v) (A) there has occurred any outbreak or escalation of
hostilities or acts of terrorism involving the United States on or
after the date hereof, or there is a declaration of a national
emergency or war by the United States, or (B) there has been any other
calamity or crisis or any change in political, financial or economic
conditions if the effect of any such event in (A) or (B), in the
Initial Purchasers' judgment, makes it inadvisable or impracticable to
proceed with the offering, sale and delivery of the Securities, on the
terms and in the manner contemplated hereby and in the Offering
Memorandum;
(vi) any debt securities of the Company, Holdings or any
Guarantor has been downgraded or placed on any "watch list" for
possible downgrading by any "nationally recognized statistical rating
organization" as defined for purposes of Rule 436(g) under the Act.
(c) Any notice of termination pursuant to this Section 12 shall be by
telephone or facsimile and, in either case, confirmed in writing by letter.
(d) If this Agreement is terminated pursuant to any of the provisions
hereof, or if the sale of the Initial 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 any provision hereof or any failure on the part of Holdings or any
Guarantor to deliver any certificate or other delivery required hereby, the
Company shall, subject to written demand by the Initial Purchasers, reimburse
the Initial Purchasers for all out-of-pocket expenses (including the reasonable
fees and expenses of the Initial Purchasers' counsel), incurred by the Initial
Purchasers in connection herewith.
30
(e) If on the Closing Date any one or more of the Initial Purchasers
shall fail or refuse to purchase the Notes which it or they have agreed to
purchase hereunder on such date and the aggregate principal amount of the Notes
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 principal amount of the Notes to be purchased on such date by all
Initial Purchasers, each non-defaulting Initial Purchaser shall be obligated
severally, in the proportion which the principal amount of the Notes set forth
opposite its name in Exhibit A bears to the aggregate principal amount of the
Notes which all the non-defaulting Initial Purchasers, as the case may be, have
agreed to purchase, or in such other proportion as Bear Xxxxxxx may specify, to
purchase the Notes 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 principal amount of the
Notes which any Initial Purchaser has agreed to purchase pursuant to Section 3
hereof be increased pursuant to this Section 12 by an amount in excess of
one-ninth of such principal amount of the Notes 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 Notes and the aggregate
principal amount of the Notes with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of the Notes to be purchased by
all Initial Purchasers and arrangements satisfactory to the Initial Purchasers,
the Company and the Guarantor for purchase of such Notes are not made within 48
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Initial Purchaser, the Company or the Guarantor. In
any such case which does not result in termination of this Agreement, either
Bear Xxxxxxx, the Company or the Guarantor 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 Memorandum 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.
13. 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 and confirmed in writing or
sent by a nationally recognized overnight courier service guaranteeing delivery
on the next business day to such Initial Purchaser c/o Bear, Xxxxxxx & Co. Inc.,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Finance
Department, telecopy number: (000) 000-0000, with a copy to Xxxxxx & Xxxxxxx
LLP, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxx X.
Xxxxxxxxxxx, telecopy number: (000) 000-0000; and if sent to either of the
Company or the Guarantor, shall be mailed, delivered, telecopied and confirmed
in writing or sent by a nationally recognized overnight courier service
guaranteeing delivery on the next business day to IWO Escrow Company, 000
Xxxxxxxxx Xxxxxx, Xxxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxx, telecopy
number: (000) 000-0000, with a copy to Xxxx, Xxxxx, Rifkind, Xxxxxxx & Xxxxxxxx
LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxxxxx
X. Xxxxx, telecopy number: (000) 000-0000.
31
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 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; provided Holdings
shall have third-party beneficiary rights with respect to all rights of the
Company hereunder. The term "successors and assigns" shall not include a
purchaser, in its capacity as such, of Notes from any of the Initial Purchasers.
15. Construction. This Agreement shall be construed in accordance with
the internal laws of the State of New York applicable to agreements made and to
be performed within New York, without giving any effect to any provisions
thereof relating to conflicts of law. TIME IS OF THE ESSENCE IN THIS AGREEMENT.
16. Entire Agreement.
This Agreement constitutes the entire agreement among the parties
hereto and supersedes all prior agreements, understandings and arrangements,
oral or written, among the parties hereto with respect to the subject matter
hereof.
17. No Waiver; Modifications in Writing. No failure or delay on the
part of the Company or the Initial Purchasers in exercising any right, power or
remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
The remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to the Company or any Initial Purchaser at law or
in equity or otherwise. No waiver of or consent to any departure by the Company
or any Initial Purchaser from any provision of this Agreement shall be effective
unless signed in writing by the party entitled to the benefit thereof and, if
such party entitled to the benefit thereof is the Company, with the consent of
Holdings; provided that notice of any such waiver shall be given to each party
hereto as set forth above. Except as otherwise provided herein, no amendment,
modification or termination of any provision of this Agreement shall be
effective unless signed in writing by or on behalf of the Company, with the
consent of Holdings, and the Initial Purchasers. Any amendment, supplement or
modification of or to any provision of this Agreement, any waiver of any
provision of this Agreement, and any consent to any departure by the Company or
the Initial Purchasers from the terms of any provision of this Agreement shall
be effective only in the specific instance and for the specific purpose for
which made or given. Except where notice is specifically required by this
Agreement, no notice to or demand on the Company in any case shall entitle the
Company to any other or further notice or demand in similar or other
circumstances.
18. Captions. The captions included in this Agreement are included
solely for convenience of reference and are not to be considered a part of this
Agreement.
19. Counterparts. This Agreement may be executed in various
counterparts which together shall constitute one and the same instrument.
[Signatures to follow]
32
If the foregoing correctly sets forth the understanding among the
Initial Purchasers and the Company, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding
agreement among us.
Very truly yours,
IWO ESCROW COMPANY
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President and Chief Executive Officer
[Purchase Agreement Signature Page]
Accepted and agreed to as of
the date first above written:
Bear, Xxxxxxx & Co. Inc.
By: /s/ Xxxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Managing Director
XXXXXX BROTHERS INC.
By: /s/ Xxxxxxx Xxxxxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Senior Vice President
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED
By: /s/ Xxxxx Xxxxxxx
----------------------------
Name: Xxxxx Xxxxxxx
Title: Director
[Purchase Agreement Signature Page]
SCHEDULE I
----------
GUARANTORS
----------
Independent Wireless One Corporation
Independent Wireless One Leased Realty Corporation
A-1
EXHIBIT A
---------
PRINCIPAL AMOUNT OF
-------------------
INITIAL PURCHASER SENIOR SECURED NOTES
----------------- --------------------
Bear, Xxxxxxx & Co. Inc........................................................... $ 97,500,000
Xxxxxx Brothers Inc............................................................... $ 37,500,000
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated................................ $ 15,000,000
Total............................................................. $ 150,000,000
PRINCIPAL AMOUNT OF
-------------------
INITIAL PURCHASER SENIOR DISCOUNT NOTES
----------------- ---------------------
Bear, Xxxxxxx & Co. Inc........................................................... $ 91,000,000
Xxxxxx Brothers Inc............................................................... $ 35,000,000
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated................................ $ 14,000,000
Total............................................................. $ 140,000,000
A-2
EXHIBIT B
---------
FORM OF OPINION OF XXXX, GOTSHAL & XXXXXX LLP
[To be provided]
B-1
EXHIBIT C
---------
FORM OF OPINION OF XXXXX, NACE, XXXXXXXXX & XXXXX CHARTERED
[To be provided]
C-1
EXHIBIT D
---------
FORM OF OPINION OF XXXX, XXXXX, XXXXXXX, XXXXXXX AND XXXXXXXX LLP
[To be provided]
D-1
EXHIBIT E
---------
NEGATIVE ASSURANCE LETTER OF XXXXX X. XXXXXX
[To be provided]
E-1
EXHIBIT F
---------
INDEMNITY AGREEMENT
[To be provided]
F-1
