Exhibit 1.1
21ST CENTURY TELECOM GROUP, INC.
$200,000,000 (Gross Proceeds) 12 1/4% Senior Discount Notes Due 2008
$50,000,000 Representing 50,000 Units
consisting of
13 3/4 % Senior Cumulative Exchangeable Preferred Stock Due 2010
and
Warrants to Purchase 438,870 Shares of Common Stock
PURCHASE AGREEMENT
------------------
February 2, 1998
Credit Suisse First Boston Corporation
BancAmerica Xxxxxxxxx Xxxxxxxx
BancBoston Securities Inc.
c/o Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 10010-3629
Dear Sirs:
1. Introductory. 21st Century Telecom Group, Inc., an Illinois
corporation (the "Company"), proposes, subject to the terms and conditions
stated herein, to issue and sell to the several initial purchasers named in
Schedule A hereto (the "Purchasers") U.S. $200,000,000 (Gross Proceeds) in
aggregate initial principal amount of its 12 1/4% Senior Discount Notes Due 2008
(the "Notes") with a principal amount at maturity of $363,135,000 and 50,000
Units (the "Units"), each Unit consisting of one share of its 13 3/4% Senior
Cumulative Exchangeable Preferred Stock Due 2010 (the "Exchangeable Preferred
Stock") and one Warrant (each, a "Warrant") to purchase 8.7774 shares of common
stock, no par value (the "Common Stock") of the Company at an exercise price of
$.01 per share. The Company may, at its option (on any scheduled dividend
payment date) exchange all but not less than all the shares of Exchangeable
Preferred Stock then outstanding for the Company's 13 3/4% Subordinated
Exchange Debentures Due 2010 (the "Exchange Debentures"). The Notes and the
Units are collectively referred to herein as the "Offered Securities" and are
offered on a private placement basis pursuant to the exemption provided by
Section 4(2) and Regulation S of the United States Securities Act of 1933 (the
"Securities Act"). The Notes are to be issued under an indenture dated as of
February 1, 1998 (the "Notes Indenture"), between the Company and State Street
Bank and Trust Company, as trustee (the "Notes Trustee"). The Exchangeable
Preferred Stock will be issued pursuant to an amendment to the Articles of
Incorporation of the Company (the "Amended Charter"). Boston EquiServe Trust
Company shall act as transfer agent (the "Transfer Agent") for the
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Exchangeable Preferred Stock. The Exchange Debentures, if issued, will be issued
under the Exchange Indenture dated as of February 1, 1998 (the "Exchange
Indenture" and, together with the Notes Indenture, the "Indentures"), between
the Company and State Street Bank and Trust Company, as trustee (the "Exchange
Debenture Trustee"and, together with the Notes Trustee, the "Trustees"). The
Warrants will be issued pursuant to a warrant agreement dated as of February 1,
1998 (the "Warrant Agreement") between the Company and Boston EquiServe Trust
Company, as warrant agent (the "Warrant Agent").
Holders of the Notes and the Exchangeable Preferred Stock will be entitled
to the benefits of a Registration Rights Agreement (the "Registration Rights
Agreement") dated the date hereof, among the Company and the Purchasers.
This Agreement, the Indentures, the Amended and Restated Charter, the
Warrant Agreement and the Registration Rights Agreement are referred to herein
collectively as the "Operative Documents."
The Company hereby agrees with the several Purchasers as follows:
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the several Purchasers that:
(a) A preliminary offering circular and an offering circular relating to
the Offered Securities have been prepared by the Company. Such preliminary
offering circular and offering circular, as both are supplemented as of the date
of this Agreement, together with any other document approved by the Company for
use in connection with the contemplated resale of the Offered Securities, are
hereinafter collectively referred to as the "Offering Document." On the date of
this Agreement, the Offering Document does not include 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. The preceding sentence does not apply to statements in or
omissions from the Offering Document based upon written information furnished to
the Company by any Purchaser through Credit Suisse First Boston Corporation
("CSFBC") specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(b) hereof.
(b) The Exchangeable Preferred Stock has been duly authorized and, when
the shares of Exchangeable Preferred Stock have been delivered and paid for in
accordance with this Agreement on the Closing Date (as defined below), such
shares of Exchangeable Preferred Stock will have been validly issued, fully paid
and nonassessable and will conform to the description thereof contained in the
Offering Document; shares of Exchangeable Preferred Stock have been duly and
validly authorized and reserved for issuance upon payment of dividends on the
Exchangeable Preferred Stock in additional shares of Exchangeable Preferred
Stock and when so issued will be fully paid and nonassessable; the issuance of
any shares of Exchangeable Preferred Stock is not subject to preemptive or other
similar rights.
(c) The Notes Indenture has been duly authorized; the Notes have been duly
authorized; on the Closing Date, the Notes Indenture will have been duly
executed and delivered by the Company; and when the Notes are delivered and paid
for pursuant to this Agreement on the Closing Date, such Notes will have been
duly executed, authenticated, issued and delivered and will conform to the
description thereof contained in the Offering Document and will be entitled
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to the benefits of the Notes Indenture, and the Notes Indenture and such Notes
will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles (regardless of whether enforceability is considered in a proceeding
at law or in equity).
(d) The Exchange Indenture has been duly authorized; the Exchange
Debentures have been duly authorized; on the Closing Date, the Exchange
Indenture will have been duly executed and delivered by the Company; and if and
when the Exchange Debentures are delivered and paid for pursuant to this
Agreement, such Exchange Debentures will be duly executed, authenticated, issued
and delivered and will conform to the description thereof contained in the
Offering Document and will be entitled to the benefits of the Exchange
Indenture, and the Exchange Indenture and such Exchange Debentures will
constitute valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles
(regardless of whether enforceability is considered in a proceeding at law or in
equity).
(e) The Warrant Agreement has been duly authorized by the Company; the
Warrants have been duly authorized by the Company; on the Closing Date, the
Warrant Agreement will have been duly executed and delivered by the Company; and
when the Warrants are delivered and paid for pursuant to this Agreement on the
Closing Date, such Warrants will conform to the description thereof contained in
the Offering Document and the Warrant Agreement and the Warrants will constitute
valid and legally binding obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
(f) When the Warrants are delivered and paid for pursuant to this
Agreement on the Closing Date, such Warrants will be convertible into the shares
of Common Stock, no par value ("Underlying Shares") of the Company in accordance
with the terms of the Warrant Agreement; the Underlying Shares initially
issuable upon conversion of such Warrants have been duly authorized and reserved
for issuance upon such conversion and, when issued upon such conversion, will be
validly issued, fully paid and nonassessable and will conform to the description
thereof contained in the Offering Document; and the holders of capital stock of
the Company or instruments convertible into or exercisable for shares of capital
stock of the Company have no preemptive rights or rights to have "anti-dilution"
or similar adjustments made in connection with the issuance of the Warrants or
the Underlying Shares.
(g) The Registration Rights Agreement has been duly authorized, executed
and delivered by the Company, and conforms to the description thereof contained
in the Offering Document. Assuming the due authorization, execution and
delivery thereof by all parties other than the Company , the Registration Rights
Agreement constitutes a valid and legally binding obligation of the Company, and
is enforceable in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles (regardless of whether enforceability is considered in a proceeding
at law or in equity).
(h) Each of the Company and its subsidiaries has been duly incorporated
and is a validly
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existing corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Offering Document; and
each of the Company and its subsidiaries is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires such
qualification.
(i) All the issued and outstanding capital stock of each subsidiary of the
Company has been duly authorized and validly issued and is fully paid and
nonassessable and is owned, directly or indirectly, by the Company; and the
capital stock of each subsidiary is owned free from liens, encumbrances and
defects.
(j) Except as disclosed in the Offering Document, there are no contracts,
agreements or understandings between the Company and any person that would give
rise to a valid claim against the Company or any Purchaser for a brokerage
commission, finder's fee or other like payment in connection with the
transactions contemplated by the Operative Documents.
(k) No consent, approval, authorization or order of, or filing with, any
governmental agency or body or any court is required for the consummation of the
transactions contemplated by the Operative Documents or for the execution,
delivery and performance by the Company of any of the Operative Documents, other
than those that have been obtained or made, or as may be required under the
Securities Act and the Rules and Regulations of the Commission thereunder with
respect to the Registration Rights Agreement and the transactions contemplated
thereunder and such as may be required by securities or blue sky laws of any
state of the United States or of any foreign jurisdiction in connection with the
offer and sale of the Offered Securities.
(l) The execution, delivery and performance by the Company of the
Operative Documents, and the issuance and sale of the Offered Securities and
compliance with the terms and provisions thereof, will not result in a breach or
violation of (I) any of the terms and provisions of, or constitute a default
under, any statute, rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, (II) any agreement or
instrument to which the Company or any such subsidiary is a party or by which
the Company or any such subsidiary is bound or to which any of the properties of
the Company or any such subsidiary is subject, or (III) the charter or by-laws
or other organizational documents of the Company or any such subsidiary, and the
Company has full power and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement.
(m) This Agreement has been duly authorized, executed and delivered by the
Company.
(n) Except as disclosed in the Offering Document, the Company and its
subsidiaries have good and marketable title to all real properties and all other
properties and assets owned by each of them, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and except
as disclosed in the Offering Document, the Company and its subsidiaries hold any
leased real or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to be made
thereof by them.
(o) The Company and its subsidiaries possess adequate certificates,
authorities,
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franchises or permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by each of them and have not
received any notice of proceedings relating to the revocation or modification of
any such certificate, authority, franchise or permit.
(p) No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is imminent that might
have a material adverse effect on the Company and its subsidiaries taken as a
whole.
(q) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "intellectual property rights") necessary
to conduct the business now operated by each of them, or presently utilized by
each of them, and have not received any notice of infringement of or conflict
with asserted rights of others with respect to any intellectual property rights
that, if determined adversely to the Company or any of its subsidiaries, would,
individually or in the aggregate, have a material adverse effect on the Company
and its subsidiaries taken as a whole.
(r) Neither the Company nor any of its subsidiaries is in violation of any
statute, rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws, is
liable for any off-site disposal or contamination pursuant to any environmental
laws, or is subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would, individually or in the
aggregate, have a material adverse effect on the Company and its subsidiaries
taken as a whole; and the Company is not aware of any pending investigation
which might lead to such a claim.
(s) There are no pending actions, suits or proceedings against or
affecting the Company, any of its subsidiaries or any of their respective
properties that, if determined adversely to the Company or any of its
subsidiaries, would, individually or in the aggregate, have a material adverse
effect on the condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole, or would
materially and adversely affect the ability of the Company to perform its
obligations under any of the Operative Documents, or which are otherwise
material in the context of the sale of the Offered Securities; and no such
actions, suits or proceedings are threatened or, to the Company's knowledge,
contemplated.
(t) The financial statements included in the Offering Document present
fairly the financial position of the Company and its consolidated subsidiaries
as of the dates shown and their results of operations and cash flows for the
periods shown, and such financial statements have been prepared in conformity
with the generally accepted accounting principles in the United States applied
on a consistent basis.
(u) Since the date of the latest audited financial statements included in
the Offering Document, there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, and, except as
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disclosed in or contemplated by the Offering Document, there has been no
dividend or distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(v) The Company is not an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be registered
under Section 8 of the United States Investment Company Act of 1940 (as amended,
the "Investment Company Act"), and the Company is not and, after giving effect
to the offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Offering Document, will not be an
"investment company" as defined in the Investment Company Act.
(w) No securities of the same class (within the meaning of Rule 144A(d)(3)
under the Securities Act) as any of the Offered Securities are listed on any
national securities exchange registered under Section 6 of the Exchange Act or
quoted in a U.S. automated inter-dealer quotation system.
(x) The offer and sale of the Offered Securities by the Company to the
several Purchasers in the manner contemplated by this Agreement will be exempt
from the registration requirements of the Securities Act by reason of Section
4(2) thereof and Regulation S; and it is not necessary to qualify an indenture
in respect of the Notes or the Exchange Debentures under the United States Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act").
(y) None of the Company, any of its affiliates and any person acting on
its or their behalf (i) has, within the six-month period prior to the date
hereof, offered or sold in the United States or to any U.S. person (as such
terms are defined in Regulation S under the Securities Act) the Offered
Securities or any security of the same class or series as any of the Offered
Securities (A) in the United States by means of any form of general solicitation
or general advertising within the meaning of Rule 502(c) under the Securities
Act or (B) with respect to any such securities sold in reliance on Rule 903 of
Regulation S, by means of any directed selling efforts within the meaning of
Rule 902(b) of Regulation S. The Company, its affiliates and any person acting
on their behalf have complied and will comply with the offering restrictions
requirement of Regulation S. The Company has not entered and will not enter
into any contractual arrangement with respect to the distribution of the Offered
Securities except for this Agreement and the Registration Rights Agreement.
(z) The proceeds to the Company from the offering of the Offered
Securities will be used as described in the Offering Document.
(aa) The Company and its subsidiaries are, and will remain, in compliance
in all material respects with the Communications Act of 1934, as amended by the
Telecommunications Act of 1996 (the "Communications Act"), with all applicable
rules, regulations and policies of the Federal Communications Commission (the
"FCC") and with all other applicable Federal and state laws and regulations.
(bb) The Company is in compliance with its obligations under the pole
attachment agreements with Commonwealth Edison Company and a subsidiary of
Ameritech Corporation and the attachment agreement with the Chicago Transit
Authority.
(cc) The Company and its subsidiaries are, and will remain, in compliance
in all material respects with all material terms and conditions of each license,
franchise and other
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governmental authorization.
(dd) All licenses, franchises and other governmental authorization are
currently valid and in full force and effect, and there is no investigation,
notice of apparent liability, violation, forfeiture or other order or complaint
issued by or before any court or regulatory body, or of any other proceedings
(other than proceedings relating to the telecommunications industry generally)
which could in any manner materially threaten or adversely affect the validity
or continued effectiveness of any of the licenses, franchises or other
governmental authorization.
(ee) No event has occurred which (i) results in, or after notice or lapse
of time or both would result in, revocation, suspension, adverse modification,
non-renewal, impairment, restriction or termination of, or order of forfeiture
with respect to, any license, franchise or other governmental authorization or
(ii) materially and adversely affects or could reasonably be expected in the
future to materially adversely affect any of the rights of the Company or any of
its subsidiaries thereunder.
(ff) The Company and its subsidiaries have duly filed in a timely manner
all material filings, reports, applications, documents, instruments and
information required to be filed by them under the Communications Act pertaining
to the licenses, franchises and other governmental authorization.
(gg) There is no "substantial U.S. market interest" as defined in Rule
902(n) of Regulation S in the Company's debt securities, the Exchangeable
Preferred Stock or any security of the same class or series as the Exchangeable
Preferred Stock or in the Common Stock to be purchased upon exercise of the
Warrants.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and each of the Purchasers agrees, severally and not jointly, to
purchase from the Company, (i) Notes having an aggregate principal amount at
maturity set forth opposite the name of such Purchaser on Schedule A hereto at a
purchase price of 51.5759 of the principal amount at maturity thereof plus
accrual of Accreted Value, if any, from February 9, 1998 to the Closing Date,
and (ii) the number of Units set forth opposite the name of such Purchasers on
Schedule A hereto at a purchase price of $965 per Unit plus accumulated
dividends, if any, from February 9, 1998 to the Closing Date.
The Company will deliver against payment of the purchase price the Notes
and the Units in the form of one or more permanent global Notes and one or more
global Units (each of which will consist of one or more global certificates for
shares of Exchangeable Preferred Stock and one or more global Warrants) in
definitive form (collectively, the "Global Securities") which will be deposited
with the applicable Trustee or Transfer Agent, as the case may be, as custodian
for The Depository Trust Company ("DTC") and registered in the name of Cede &
Co., as nominee for DTC. Interests in any permanent Global Securities will be
held only in book-entry form through DTC, except in the limited circumstances
described in the Offering Document. Payment for the Offered Securities shall be
made by the Purchasers in Federal (same-day) funds by official check or checks
or wire transfer to an account at a bank acceptable to CSFBC drawn to the order
of the Company, at the office of Cravath, Swaine & Xxxxx, Worldwide Plaza, 000
Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000 at 10:00 A.M. (New York time), on
February 9,
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1998, or at such other time not later than seven full business days thereafter
as CSFBC and the Company determine, such time being herein referred to as the
"Closing Date," against delivery to the applicable Trustee or Transfer Agent, as
the case may be, as custodian for DTC of the applicable Global Securities
representing in the aggregate all the Offered Securities. The Global Securities
will be made available for checking at the above office of Cravath, Swaine &
Xxxxx at least 24 hours prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers. (a) Each
Purchaser severally represents and warrants to the Company that it is an
"accredited investor" within the meaning of Regulation D under the Securities
Act.
(b) Each Purchaser severally acknowledges that the Offered Securities have
not been registered under the Securities Act and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S. persons
except to "qualified institutional buyers" in reliance on Rule 144A ("Rule
144A") under the Securities Act, and to certain persons in offshore transactions
in reliance on Regulation S. Each Purchaser severally represents and agrees
that it will not offer, sell or deliver the Offered Securities as part of its
distribution at any time within the United States or to, or for the account or
benefit of, United States persons, except to "qualified institutional buyers" in
reliance on Rule 144A under the Securities Act, and to certain persons in
offshore transactions in reliance on Regulation S. Terms used in this
subsection (b) have the meanings given to them by Regulation S.
(c) Each Purchaser severally agrees that it and each of its affiliates has
not entered and will not enter into any contractual arrangement with respect to
the distribution of the Offered Securities except for any such arrangements with
the other Purchasers or affiliates of the other Purchasers or with the prior
written consent of the Company.
(d) Each Purchaser severally agrees that it and each of its affiliates
will not offer or sell the Offered Securities in the United States by means of
any form of general solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act, including (i) any advertisement, article,
notice or other communication published in any newspaper, magazine or similar
media or broadcast over television or radio, or (ii) any seminar or meeting
whose attendees have been invited by any general solicitation or general
advertising. Each Purchaser severally agrees, with respect to resales made in
reliance on Rule 144A of any of the Offered Securities, to deliver either with
the confirmation of such resale or otherwise prior to settlement of such resale
a notice to the effect that the resale of such Offered Securities has been made
in reliance upon the exemption from the registration requirements of the
Securities Act provided by Rule 144A.
(e) Each of the Purchasers severally represents and agrees that (i) it has
not offered or sold and prior to the date six months after the date of issue of
the Offered Securities will not offer or sell any Offered Securities to persons
in the United Kingdom except to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances which
have not resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations 1995;
(ii) it has complied and will comply with all applicable provisions of the
Financial Services Act 1986 with respect to anything done by it in relation to
the Offered Securities in, from or otherwise involving the United Kingdom; and
(iii) it has only issued or passed on and will only issue or pass on in the
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United Kingdom any document received by it in connection with the issue of the
Offered Securities to a person who is of a kind described in Article 11(3) of
the Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order
1996 or is a person to whom such document may otherwise lawfully be issued or
passed on.
5. Certain Agreements of the Company. The Company agrees with the several
Purchasers that:
(a) The Company will advise CSFBC promptly of any proposal to amend or
supplement the Offering Document and will not effect such amendment or
supplementation without CSFBC's consent. If, at any time prior to the
completion of the resale of the Offered Securities by the Purchasers, any event
occurs as a result of which the Offering Document as then amended or
supplemented would include an 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, or if
it is necessary at any such time to amend or supplement the Offering Document to
comply with any applicable law, the Company promptly will notify CSFBC of such
event and promptly will prepare, at its own expense, an amendment or supplement
which will correct such statement or omission or effect such compliance.
Neither CSFBC's consent to, nor the Purchasers' delivery to offerees or
investors of, any such amendment or supplement shall constitute a waiver of any
of the conditions set forth in Section 6.
(b) The Company will furnish to CSFBC copies of any preliminary offering
circular, the Offering Document and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as CSFBC
requests, and the Company will furnish to CSFBC on the Closing Date four copies
of the Offering Document signed by a duly authorized officer of the Company, one
of which will include the independent accountants' reports therein manually
signed by such independent accountants. At any time when the Company is not
subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly
furnish or cause to be furnished to the Purchasers and, upon request of holders
and prospective purchasers of the Offered Securities, to such holders and
purchasers, copies of the information required to be delivered to holders and
prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4)
under the Securities Act (or any successor provision thereto) in order to permit
compliance with Rule 144A in connection with resales by such holders of the
Offered Securities. The Company will pay the expenses of printing and
distributing to the Purchasers all such documents.
(c) The Company will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for investment
under the laws of such jurisdictions in the United States and Canada as CSFBC
designates and will continue such qualifications in effect so long as required
for the resale of the Offered Securities by the Purchasers; provided that the
Company will not be required to qualify as a foreign corporation or to file a
general consent to service of process in any such jurisdiction.
(d) During the period of ten years hereafter, the Company will furnish to
CSFBC and, upon request, to each of the other Purchasers, as soon as practicable
after the end of each fiscal year, a copy of its annual report to stockholders
for such year; and the Company will furnish to CSFBC and, upon request, to each
of the other Purchasers (i) as soon as available, a copy of each report, notice
or communication sent to stockholders, and (ii) from time to time, such other
information concerning the Company as CSFBC may reasonably request.
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(e) During the period of two years after the Closing Date, the Company
will, upon request, furnish to CSFBC, each of the other Purchasers and any
holder of Offered Securities a copy of the restrictions on transfer applicable
to the Offered Securities.
(f) During the period of two years after the Closing Date, the Company
will not, and will not permit any of its affiliates (as defined in Rule 144
under the Securities Act) to, resell any of the Offered Securities that have
been reacquired by any of them.
(g) During the period of two years after the Closing Date, the Company
will not be or become, an open-end investment company, unit investment trust or
face-amount certificate company that is or is required to be registered under
Section 8 of the Investment Company Act.
(h) The Company will pay all expenses incidental to the performance of its
obligations under the Operative Documents, including (i) the fees and expenses
of the Trustees, the Transfer Agent, the Warrant Agent and their professional
advisers; (ii) all expenses in connection with the execution, issue,
authentication, packaging and initial delivery of the Offered Securities, the
preparation and printing of this Agreement, the Offered Securities, the Offering
Document and amendments and supplements thereto, and any other document relating
to the issuance, offer, sale and delivery of the Offered Securities; (iii) the
cost of qualifying the Offered Securities for trading in the Private Offerings,
Resale and Trading through Automated Linkages (PORTAL) market of the Nasdaq
Stock Market, Inc. and any expenses incidental thereto; (iv) any expenses
(including fees and disbursements of counsel) incurred in connection with
qualification of the Offered Securities for sale under the laws of such
jurisdictions in the United States and Canada as CSFBC designates and the
printing of memoranda relating thereto; (v) any fees charged by investment
rating agencies for the rating of any of the Offered Securities; and (vi)
expenses incurred in distributing preliminary offering circulars and the
Offering Document (including any amendments and supplements thereto) to the
Purchasers. The Company will reimburse the Purchasers, to the extent incurred
by them, for all travel expenses of the Purchasers and the Company's officers
and employees and any other expenses of the Purchasers and the Company in
connection with attending or hosting meetings with prospective purchasers of the
Offered Securities.
(i) In connection with the offering, until CSFBC shall have notified the
Company and the other Purchasers of the completion of the resale of the Offered
Securities, neither the Company nor any of its affiliates has or will, either
alone or with one or more other persons, bid for or purchase for any account in
which it or any of their affiliates has a beneficial interest any Offered
Securities or attempt to induce any person to purchase any Offered Securities;
and neither it nor any of its affiliates will make bids or purchases for the
purpose of creating actual, or apparent, active trading in, or of raising the
price of, the Offered Securities.
(j) For a period of 180 days after the initial offering of the Offered
Securities by the Purchasers, the Company will not offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, in a public
offering or a private placement, (a) any United States dollar-denominated debt
securities (exclusive of bank borrowings and purchase money indebtedness) issued
or guaranteed by the Company and having a maturity of more than one year from
the date of issue, (b) any shares of Common Stock of the Company or securities
convertible into or exchangeable or exercisable for shares of Common Stock of
the Company or warrants or other rights to purchase shares of Common Stock of
the Company, (c) any preferred stock or any other
11
securities of the Company having terms which are substantially similar to the
Exchangeable Preferred Stock, or (d) any other securities which are convertible
into, or exercisable or exchangeable for, preferred stock or such substantially
similar securities of the Company, without the prior written consent of CSFBC,
or publicly disclose the intention to make any such offer, sale, pledge or
disposition, except the offer, sale, contract to sell, or other disposition of
(i) the Offered Securities, (ii) the Exchange Debentures issued or delivered
upon exchange of the Exchangeable Preferred Stock, (iii) securities issued or
delivered upon conversion, exchange or exercise of any other securities of the
Company outstanding on the date of the Offering Document, (iv) capital stock and
options of the Company issued pursuant to benefit or incentive plans maintained
for its officers, directors, employees or persons providing services to the
Company, or (v) securities issued in connection with mergers, acquisitions or
similar transactions. The Company will not at any time offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, any securities
under circumstances where such offer, sale, pledge, contract or disposition
would cause the exemption afforded by Section 4(2) of the Securities Act or the
safe harbor of Regulation S thereunder to cease to be applicable to the offer
and sale of the Offered Securities.
6. Conditions of the Obligations of the Purchasers. The obligations of
the several Purchasers to purchase and pay for the Offered Securities 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 by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of this
Agreement, of Xxxxxx Xxxxxxxx LLP in form and substance satisfactory to the
Purchasers concerning the financial information with respect to the Company set
forth in the Offering Document.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) a change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange controls
as would, in the judgment of CSFBC, be likely to prejudice materially the
success of the proposed issue, sale or distribution of any of the Offered
Securities, whether in the primary market or in respect of dealings in the
secondary market, or (ii) (A) any change, or any development or event involving
a prospective change, in the condition (financial or other), business,
properties or results of operations of the Company or its subsidiaries which, in
the judgment of a majority in interest of the Purchasers, including CSFBC, is
material and adverse and makes it impractical or inadvisable to proceed with
completion of the offering or the sale of and payment for the Offered
Securities; (B) any downgrading in the rating of any debt securities or
preferred stock of the Company or any of its subsidiaries by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Securities Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt securities
or preferred stock of the Company or any of its subsidiaries (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (C) any suspension or
limitation of trading in securities generally on the New York Stock Exchange or
any setting of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the over-the-
counter market; (D) any banking moratorium declared by U.S. Federal or New York
authorities; or (E) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by Congress or any
12
other substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Purchasers including CSFBC, the effect
of any such outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the offering or sale of
and payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated the Closing Date,
of Piper & Marbury LLP (or Xxxx Xxxxxx & Xxxxxxxxx), counsel for the Company,
that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Illinois, with
corporate power and authority to own its properties and conduct its
business as described in the Offering Document; and the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification;
(ii) Each of the Indentures, the Warrant Agreement and the
Registration Rights Agreement has been duly authorized, executed and
delivered by the Company and conforms in all material respects to the
descriptions thereof contained in the Offering Document; the Notes have
been duly authorized, executed, authenticated, issued and delivered and
conform to the description thereof contained in the Offering Document; and
the Indentures, the Warrant Agreement, the Registration Rights Agreement
and the Notes constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(iii) The Warrants are convertible into Common Stock of the Company
in accordance with the terms of the Warrant Agreement, the shares of such
Common Stock initially issuable upon conversion of the Offered Securities
have been duly authorized and reserved for issuance upon such conversion
and, when issued upon such conversion, will be validly issued, fully paid
and nonassessable; the Capital Stock of the Company conforms to the
description thereof contained in the Offering Document; and the holders of
capital stock of the Company or instruments convertible into or exercisable
for shares of capital stock of the Company have no preemptive rights or
rights to have "anti-dilution" or similar adjustments made in connection
with the issuance of the Warrants or the Common Stock;
(iv) The Exchangeable Preferred Stock has been duly authorized and
validly issued, is fully paid and nonassessable and conforms to the
description thereof contained in the Offering Document; and the
stockholders of the Company have no preemptive rights with respect to the
Offered Securities or the Common Stock;
(v) No consent, approval, authorization or order of, or filing with,
any U.S. Federal, New York or Illinois governmental agency or body or any
court is required for the execution, delivery and performance of the
Operative Documents by the respective parties thereto or for the
consummation of the transactions contemplated by the Operative Documents by
the Company, except those that have been obtained and except such as may be
required under state securities laws and other than as may be required
under the Securities Act and the Rules and Regulations of the Commission
thereunder
13
with respect to the Registration Rights Agreement;
(vi) The execution, delivery and performance of the Operative
Documents and the issuance and sale of the Offered Securities and
compliance with the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any U.S.
Federal, New York or Illinois governmental agency or body or any court
having jurisdiction over the Company or any subsidiary of the Company or
any of their properties, or any agreement or instrument to which the
Company or any such subsidiary is a party or by which the Company or any
such subsidiary is bound or to which any of the properties of the Company
or any such subsidiary is subject, or the charter or by-laws (or other
organizational documents) of the Company or any such subsidiary, and the
Company has full power and authority to authorize, issue and sell the
Offered Securities as contemplated by this Agreement;
(vii) Such counsel has no reason to believe that the Offering
Document, or any amendment or supplement thereto, as of the date hereof and
as of such the Closing Date, contained any untrue statement of a material
fact or omitted to state any material fact necessary to make the statements
therein not misleading; the descriptions in the Offering Document of
statutes, legal and governmental proceedings and contracts and other
documents are accurate and fairly present the information, it being
understood that such counsel need express no opinion as to the financial
statements or other financial data contained in the Offering Document;
(viii) This Agreement has been duly authorized, executed and
delivered by the Company;
(ix) It is not necessary in connection with (A) the offer, sale and
delivery of the Offered Securities by the Company to the several Purchasers
pursuant to this Agreement or (B) the initial resales of the Offered
Securities by the several Purchasers in the manner contemplated hereby to
register the Offered Securities under the Securities Act or to qualify an
indenture in respect thereof under the Trust Indenture Act;
(x) The description under the heading "Legislation and Regulation" in
the Offering Document constitutes a fair summary of the information
contained therein;
(xi) To the best of such counsel's knowledge, the Company is in
compliance with its obligations under the pole attachment agreements with
Commonwealth Edison Company and a subsidiary of Ameritech Corporation and
the attachment agreement with the Chicago Transit Authority;
(xii) To the best of such counsel's knowledge, the Company and its
subsidiaries are in compliance in all material respects with the
Communications Act, with all applicable rules, regulations and policies of
the FCC and with all other applicable Federal and state laws and
regulations;
(xiii) To the best of such counsel's knowledge, the Company and its
subsidiaries are in compliance in all material respects with all material
terms and conditions of each license, franchise and other governmental
authorization;
14
(xiv) To the best of such counsel's knowledge, the licenses,
franchises and other governmental authorization of the Company and its
subsidiaries are currently valid and in full force and effect, and there is
no investigation, notice of apparent liability, violation, forfeiture or
other order or complaint issued by or before any court or regulatory body,
or of any other proceedings (other than proceedings relating to the
telecommunications industry generally) which could in any manner materially
threaten or adversely affect the validity or continued effectiveness of any
of the licenses, franchises or other governmental authorization;
(xv) To the best of such counsel's knowledge, no event has occurred
which (i) results in, or after notice or lapse of time or both would result
in, revocation, suspension, adverse modification, non-renewal, impairment,
restriction or termination of, or order of forfeiture with respect to, any
license, franchise or other governmental authorization or (ii) materially
and adversely affects or could reasonably be expected in the future to
materially adversely affect any of the rights of the Company or any of its
subsidiaries thereunder; and
(xvi) To the best of such counsel's knowledge, the Company and its
subsidiaries have duly filed in a timely manner all material filings,
reports, applications, documents, instruments and information required to
be filed by them under the Communications Act pertaining to the licenses,
franchises and other governmental authorization.
(d) The Purchasers shall have received from Cravath, Swaine & Xxxxx,
counsel for the Purchasers, such opinion or opinions, dated the Closing Date,
with respect to the incorporation of the Company, the validity of the Offered
Securities, the Offering Document, the exemption from registration for the offer
and sale of the Offered Securities by the Company to the several Purchasers and
the initial resales by the several Purchasers as contemplated hereby and other
related matters as CSFBC may require, and the Company shall have furnished to
such counsel such documents as they request for the purpose of enabling them to
pass upon such matters. In rendering such opinion, Xxxxxxx, Xxxxxx & Xxxxx may
rely as to the incorporation of the Company and all other matters governed by
Illinois law upon the opinion of Xxxx Xxxxxx & Xxxxxxxxx.
(e) The Purchasers shall have received a certificate, dated the Closing
Date, of the President or any Vice President and a principal financial or
accounting officer of the Company in which such officers, to the best of their
knowledge after reasonable investigation, shall state that the representations
and warranties of the Company in this Agreement are true and correct, that the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing Date, and
that, subsequent to the date of the most recent financial statements in the
Offering Document there has been no material adverse change, nor any development
or event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole, except as set forth in or
contemplated by the Offering Document or as described in such certificate.
(f) The issuance and sale of the Notes and the Units by the Company shall
have been consummated concurrently in accordance with the terms of this
Agreement and the description thereof in the Offering Document.
15
(g) The Purchasers shall have received a letter, dated the Closing Date,
of Xxxxxx Xxxxxxxx LLP which meets the requirements of subsection (a) of this
Section, except that the specified date referred to in such subsection will be a
date not more than three business days prior to the Closing Date for the
purposes of this subsection.
(h) The Company shall have filed with the Secretary of State of the State
of Illinois the Amended and Restated Charter.
(i) The Purchasers shall have received, on the Closing Date, four copies
of the Offering Document signed by a duly authorized officer of the Company, one
of which includes the independent accountants' reports therein manually signed
by such independent accountants.
(j) The Company shall have a commitment for $50 million from one or more
banks on the Closing Date on the terms existing on the date of execution of this
Agreement or other terms agreed to by the Purchasers.
(k) The Company and the Purchasers shall have executed the Registration
Rights Agreement.
(l) The Purchasers shall be reasonably satisfied that, as of the Closing
Date, all holders of equity securities of the Company who are entitled to anti-
dilution protection under such securities in the event of the issuance of
securities such as the Warrants shall have waived such rights.
The Company will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFBC may in its sole discretion waive on behalf of the Purchasers
compliance with any conditions of the Purchasers hereunder, whether in respect
of the Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Purchaser against any losses, claims, damages or liabilities,
joint or several, to which such Purchaser may become subject, under the
Securities Act or the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any breach of any of the representations and warranties of the Company
contained herein or any untrue statement or alleged untrue statement of any
material fact contained in the Offering Document, or any amendment or supplement
thereto, or any related preliminary offering circular, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and will reimburse
each Purchaser for any legal or other expenses reasonably incurred by such
Purchaser in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Purchaser through CSFBC specifically
for use therein, it being understood and agreed that the only such information
consists of the information described as such in subsection (b) below.
16
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, or any related preliminary offering circular,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact necessary in order 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 such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Purchaser through CSFBC specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Purchaser consists of the following information in
the Offering Document furnished on behalf of each Purchaser: the last paragraph
at the bottom of the cover page concerning the terms of the offering by the
Purchasers, the legend concerning over-allotments and stabilizing on the inside
front cover page and the final sentence of the second paragraph and the eighth
and ninth paragraphs under the caption "Plan of Distribution".
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Purchasers on the other from the offering of the Offered
Securities or (ii) if the
17
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Purchasers on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Purchasers on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total discounts
and commissions received by the Purchasers from the Company under this
Agreement. The relative fault 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 Purchasers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Offered Securities purchased by it were
resold exceeds the amount of any damages which such Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. The Purchasers' obligations in this subsection (d) to
contribute are several in proportion to their respective purchase obligations
and not joint.
(e) The obligations of the Company under this Section shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Purchaser
within the meaning of the Securities Act or the Exchange Act; and the
obligations of the Purchasers under this Section shall be in addition to any
liability which the respective Purchasers may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in their
obligations to purchase any Offered Securities hereunder and the aggregate
percentage of all such Offered Securities that such defaulting Purchaser or
Purchasers agreed but failed to purchase does not exceed 10%, CSFBC may make
arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Purchasers, but if no such
arrangements are made by the Closing Date, the non-defaulting Purchasers shall
be obligated severally, in proportion to their respective commitments hereunder,
to purchase the Offered Securities that such defaulting Purchasers agreed but
failed to purchase. If any Purchaser or Purchasers so default and the aggregate
percentage of all such Offered Securities with respect to which such default or
defaults occur exceeds 10% and arrangements satisfactory to CSFBC and the
Company for the purchase of such Offered Securities by other persons are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Purchaser or the Company, except as
provided in Section 9. As used in this Agreement, the term "Purchaser" includes
any person substituted for a Purchaser under this Section. Nothing herein will
relieve a defaulting Purchaser from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and
18
of the several Purchasers set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Purchaser, the Company or
any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Offered
Securities. If this Agreement is terminated pursuant to Section 8 or if for any
reason the purchase of the Offered Securities by the Purchasers is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of the
Company and the Purchasers pursuant to Section 7 shall remain in effect . If the
purchase of the Offered Securities by the Purchasers is not consummated for any
reason other than solely because of the termination of this Agreement pursuant
to Section 8 or the occurrence of any event specified in clause (C), (D) or (E)
of Section 6(b)(ii), the Company will reimburse the Purchasers for all out-of-
pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Purchasers will be mailed, delivered or telecopied and confirmed to the
Purchasers, c/o Credit Suisse First Boston Corporation, Xxxxxx Xxxxxxx Xxxxxx,
Xxx Xxxx, X.X. 10010-3629, Attention: Investment Banking Department-
Transactions Advisory Group, telephone: (000) 000-0000, telecopy: (000) 000-0000
or, if sent to the Company, will be mailed, delivered or telecopied and
confirmed to it at:
21st Century Telecom Group, Inc.
World Trade Center - Chicago
000 X Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with copies to:
Piper & Marbury LLP
0000 Xxxxxxxxxx Xxxxxx, X.X.
Washington, D.C. 20036-2430
Attention: Xxxxxx X. Xxxxxx, Xx.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
provided, however, that any notice to a Purchaser pursuant to Section 7 will be
mailed, delivered or telegraphed and confirmed to such Purchaser.
11. Successors. This Agreement will enure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
sentence of Section 5(b) hereof against the Company as if such holders were
parties thereto.
12. Counterparts. This Agreement may be executed in any number of
counterparts,
19
each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
13. Representation of Purchasers. In connection with this purchase, any
action taken by Credit Suisse First Boston Corporation as representative of the
Purchasers will be binding upon all Purchasers.
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
20
If the foregoing is in accordance with the Purchasers' understanding
of our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Purchasers in accordance with its terms.
Very truly yours,
21ST CENTURY TELECOM GROUP, INC.
By:__________/S/ Xxxxxx X. Xxxxxxx_________
Name: Xxxxxx X. Xxxxxxx
Title: CFO
The foregoing Purchase Agreement is hereby
confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
BANKAMERICA XXXXXXXXX XXXXXXXX
BANCBOSTON SECURITIES INC.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By:______/S/Kaukab Chaundry________
Name: Xxxxxx Xxxxxxxx
Title: Director
21
Schedule A
Principal Amount at
Maturity of Senior
Purchaser Discount Notes Number of Units
--------- ------------------- --------------
-----------------------------------------------------------------------------------------------------
Credit Suisse First Boston Corporation $236,039,000 32,500
-----------------------------------------------------------------------------------------------------
BancAmerica Xxxxxxxxx Xxxxxxxx 63,548,000 8,750
-----------------------------------------------------------------------------------------------------
BancBoston Securities Inc. 63,548,000 8,750
------------ ------
-----------------------------------------------------------------------------------------------------
$363,135,000 50,000
============ ======
