Exhibit 1.1
TRITON PCS, INC.
8 1/2% Senior Notes due 2013
Purchase Agreement
May 30, 2003
▇▇▇▇▇▇ Brothers Inc.
Citigroup Global Markets Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
Rabo Securities USA, Inc.
c/▇ ▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Triton PCS, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to ▇▇▇▇▇▇ Brothers Inc., Citigroup Global Markets Inc., ▇.▇.
▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and
Rabo Securities USA, Inc. (the "Initial Purchasers") $725,000,000 aggregate
principal amount of its 8 1/2% Senior Notes due 2013 (the "Notes"). The Notes
will be issued pursuant to the provisions of an Indenture to be dated as of June
13, 2003 (the "Indenture") among the Company, the subsidiaries of the Company
listed on the signature pages hereof (the "Guarantors") and The Bank of New
York, as trustee (the "Trustee"). The Company's obligations under the Indenture
will be guaranteed (the "Guarantees"), jointly and severally, by each of the
Guarantors. The Company and the Guarantors are collectively referred to herein
as the "Issuers," and the Notes and the Guarantees are collectively referred to
as the "Securities."
The offering and sale of the Securities to the Initial Purchasers will
be made without registration under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon the exemption therefrom provided by Section
4(2) of the Securities Act. Holders of Securities will have the benefits of a
Registration Rights Agreement to be dated as of June 13, 2003 among the Company,
the Guarantors and the Initial Purchasers (the "Registration Rights Agreement").
This Agreement, the Indenture, the Securities and the Registration Rights
Agreement are collectively referred to herein as the "Offering Agreements."
The Issuers hereby agree with the Initial Purchasers as follows:
1. The Company agrees to issue and sell the Notes to the Initial
Purchasers as hereinafter provided, and each Initial Purchaser, upon the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Company the respective principal amount of the Notes set forth
opposite such Initial Purchaser's name in Schedule I hereto at a price (the
"Purchase Price") equal to 98% of their aggregate principal amount.
2. The Issuers understand that the Initial Purchasers intend (i) to
offer privately their respective portions of the Securities as soon after this
Agreement has become effective as in the judgment of the Initial Purchasers is
advisable and (ii) initially to offer the Securities upon the terms set forth in
the Offering Memorandum (as defined below).
The Issuers confirm that they have authorized the Initial Purchasers,
subject to the restrictions set forth below, to distribute copies of the
Preliminary Offering Memorandum and the Offering Memorandum in connection with
the offering of the Securities. Each Initial Purchaser hereby makes to the
Issuers the following representations and agreements:
(a) it is a "qualified institutional buyer" within the meaning of Rule
144A under the Securities Act; and
(b) (A) it will not solicit offers for, or offer to sell, the
Securities by any form of general solicitation or general advertising (as
those terms are used in Regulation D under the Securities Act) and (B) it
will solicit offers for the Securities only from, and will offer the
Securities only to, (1) in the case of offers inside the United States,
persons whom it reasonably believes to be "qualified institutional buyers"
within the meaning of Rule 144A under the Securities Act or (2) in the case
of offers outside the United States, persons other than "U.S. persons"
within the meaning of Regulation S ("Regulation S") under the Securities
Act ("foreign purchasers"), which term shall include dealers or other
professional fiduciaries in the United States acting on a discretionary
basis for foreign beneficial owners (other than an estate or trust) that,
in each case, in purchasing the Securities are deemed to have represented
and agreed as provided in the Offering Memorandum.
With respect to offers and sales outside the United States, as described in
clause (b)(B)(2) above, each Initial Purchaser hereby represents and agrees with
the Issuers that:
(i) it understands that no action has been or will be taken by the
Issuers that would permit a public offering of the Notes, or possession or
distribution of the Preliminary Offering Memorandum, the Offering
Memorandum or any other offering or publicity material relating to the
Notes, in any country or jurisdiction where action for that purpose is
required;
(ii) it will comply with all applicable laws and regulations in each
jurisdiction in which it acquires, offers, sells or delivers Notes or has
in its possession or distributes the Offering Memorandum or any such other
material, in all cases at its own expense;
(iii) it understands that the Notes have not been and will not be
registered under the Securities Act and may not be offered or sold within
the United States or to, or for the account or benefit of, U.S. persons
except in accordance with Regulation S or pursu-
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ant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act;
(iv) the sale of the Notes offered and sold by it pursuant hereto in
reliance on Regulation S is not part of a plan or scheme to evade
registration provisions of the Securities Act;
(v) the Notes offered and sold in reliance on Regulation S will be
represented upon issuance by a global security that may not be exchanged
for definitive securities until the expiration of the 40-day restricted
period referred to in Rule 903(c)(3) of the Securities Act and only upon
certification of beneficial ownership of such Notes by non-U.S. person or
U.S. persons who purchased such Notes in transactions that were exempt from
the registration requirements of the Securities Act;
(vi) it has offered the Notes and will offer and sell the Notes (x) as
part of its distribution at any time and (y) otherwise until 40 days after
the later of the commencement of the offering of the Notes and the Closing
Date (as defined below), only in accordance with Rule 903 of Regulation S.
Accordingly, neither such Initial Purchaser, nor any of its Affiliates, nor
any persons acting on its behalf, has engaged or will engage in any
directed selling efforts (within the meaning of Regulation S) with respect
to the Securities, and such Initial Purchaser, its Affiliates and any such
persons have complied and will comply with the offering restrictions
requirement of Regulation S; and
(vii) it agrees that, at or prior to confirmation of sales of the
Notes, it will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases Notes from it
during the restricted period a confirmation or notice to substantially the
following effect:
"The Notes covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered
and sold within the United States or to, or for the account or benefit
of, U.S. persons (i) as part of their distribution at any time or (ii)
otherwise prior to 40 days after the closing of the offering, except
in either case in accordance with Regulation S (or Rule 144A, if
available) under the Securities Act. Terms used above have the meaning
given to them by Regulation S."
Terms used in this Section 2 and not otherwise defined in this Agreement have
the meanings given to them in Regulation S.
Each of the Initial Purchasers severally represents and agrees that
(i) it has not offered or sold into the United Kingdom except in circumstances
which do not constitute an offer to the public 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 and Markets ▇▇▇ ▇▇▇▇
(the "FSMA") and the Public Offers of Securities Regulations 1995 with respect
to anything done in relation to the Notes, in, from or otherwise involving the
United Kingdom and (iii) it has only communicated or caused to be communicated
and will only communicate or
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cause to be communicated any invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the FSMA) received by it in
connection with the issue and sale of any Notes in circumstances in which
Section 21(1) of the FSMA does not apply.
3. Payment for the Notes shall be made by wire transfer in immediately
available funds, to the account specified by the Company to the Initial
Purchasers no later than noon on the Business Day (as defined below) prior to
June 13, 2003, or at such other time on the same or such other date as the
Initial Purchasers and the Company may agree upon in writing. The time and date
of such payment are referred to herein as the "Closing Date." As used herein,
the term "Business Day" means any day other than a day on which banks are
permitted or required to be closed in New York City, New York.
Payment for the Notes shall be made against delivery to the nominee of
The Depository Trust Company for the account of the Initial Purchasers of one or
more global notes representing the Notes (collectively, the "Global Note"), with
any transfer taxes payable in connection with the transfer to the Initial
Purchasers paid by the Company. The Global Note will be made available for
inspection by the Initial Purchasers at the office of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other location as the
Company and the Initial Purchasers agree, not later than 1:00 P.M., New York
City time, on the Business Day prior to the Closing Date.
4. The Issuers, jointly and severally, represent and warrant to each
Initial Purchaser as follows:
(a) A Preliminary Offering Memorandum, dated May 23, 2003 (the
"Preliminary Offering Memorandum") and a final Offering Memorandum, dated
May 30, 2003 (the "Offering Memorandum") have been prepared in connection
with the offering of the Securities. Any reference to the Preliminary
Offering Memorandum or the Offering Memorandum shall be deemed to refer to
and include any Rule 144A(d)(4) Information (as defined in Section 5(k) of
this Agreement) furnished by the Issuers prior to the completion of the
distribution of the Securities. The Preliminary Offering Memorandum and the
Offering Memorandum and any amendments or supplements thereto did not and
will not, as of their respective dates or, the Offering Memorandum as of
the Closing Date and will not contain an untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the foregoing shall not apply to
statements or omissions in the Preliminary Offering Memorandum or the
Offering Memorandum or any amendment or supplement thereto made in reliance
upon and in conformity with information relating to any Initial Purchaser
furnished to the Company in writing by such Initial Purchaser through the
Representatives (as defined below) expressly for use therein.
(b) The financial statements, and the related notes thereto, included
in the Offering Memorandum present fairly the consolidated financial
position of the Company and its consolidated subsidiaries as of the dates
indicated and the results of their opera-
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tions and changes in their consolidated cash flows and stockholder's
deficit for the periods specified and said financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis.
(c) The statistical and market-related data included in the Offering
Memorandum are based on or derived from sources that the Issuers reasonably
believe are reliable and accurate.
(d) Since the respective dates as of which information is given in the
Offering Memorandum, there has not been any material decrease in the
capital stock or material increase in the long-term debt of the Company or
any of the Guarantors, or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, business, management, financial position, stockholder's
equity or results of operations of the Company and the Guarantors, taken as
a whole (a "Material Adverse Change" or a "Prospective Material Adverse
Change," respectively), otherwise than as set forth or contemplated in the
Offering Memorandum. Except as set forth or contemplated in the Offering
Memorandum neither the Company nor any of the Guarantors has entered into
any transaction or agreement (whether or not in the ordinary course of
business) material to the Company and the Guarantors, taken as a whole.
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of Delaware with power and
authority (corporate and other) to own and lease its properties and conduct
its business as described in the Offering Memorandum, and has been duly
qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns
or leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing, singly or in the aggregate with all other such failures, would
not have a material adverse effect on the general affairs, business,
prospects, management, financial position, stockholder's equity or results
of operations of the Company and the Guarantors, taken as a whole (a
"Material Adverse Effect").
(f) As of March 31, 2003, after giving effect to the transactions set
forth in the first paragraph under the caption "Capitalization" in the
Offering Memorandum, the Company would have had the capitalization included
in the Offering Memorandum under the caption "Capitalization". All of the
outstanding shares of capital stock of the Company have been duly
authorized and validly issued, are fully paid and non-assessable and are
not subject to any preemptive or similar rights; and, except as described
in or expressly contemplated by the Offering Memorandum, there are no
outstanding rights (including, without limitation, preemptive rights),
warrants or options to acquire, or instruments convertible into or
exchangeable for, any shares of capital stock or other equity interest in
the Company or any of the Guarantors, or any contract, commitment,
agreement, understanding or arrangement of any kind to which the Company or
any of the Guarantors is a party relating to the issuance of any capital
stock of the Company or of any such
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Guarantors, any such convertible or exchangeable securities or any such
rights, warrants or options.
(g) Each of the Guarantors that is a corporation has been duly
incorporated and is validly existing as a corporation under the laws of its
jurisdiction of incorporation, with power and authority (corporate and
other) to own and lease its properties and conduct its business as
described in the Offering Memorandum, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such qualification,
other than where the failure to be so qualified or in good standing, singly
or in the aggregate with all other such failures, would not have a Material
Adverse Effect. Each Guarantor that is a limited liability company has been
duly formed and is validly existing as a limited liability company in good
standing under the laws of the state of its organization, with power and
authority to own and lease its properties and conduct its business as
described in the Offering Memorandum, and has been duly qualified as a
foreign limited liability company for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing, singly or in the aggregate with all other such failures, would
not have a Material Adverse Effect. All of the issued equity interests of
each Guarantor have been duly authorized and validly issued and, as to
shares of capital stock of any Guarantor that is a corporation, are fully
paid and non-assessable, and will be owned, as of the Closing Date, by the
Company, directly or indirectly, free and clear of all material liens,
encumbrances, security interests or claims, other than liens described
under the caption "Description of Certain Indebtedness" in the Offering
Memorandum.
(h) This Agreement has been duly authorized, executed and delivered by
the Issuers.
(i) The Registration Rights Agreement has been duly authorized by the
Issuers and, on the Closing Date, will have been duly executed and
delivered by each of the Issuers. When the Registration Rights Agreement
has been duly executed and delivered by the Issuers and assuming due
execution and delivery by the Initial Purchasers, the Registration Rights
Agreement will be a valid and binding agreement of the Issuers, enforceable
in accordance with its terms except as (i) enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally, (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability and (iii) to the extent indemnification, contribution and
other provisions are deemed to violate public policy or the federal
securities laws.
(j) The Indenture has been duly authorized by each of the Issuers and,
on the Closing Date, will have been validly executed and delivered by each
of the Issuers. When the Indenture has been duly executed and delivered by
the Issuers, and assuming due authorization and delivery by the Trustee,
the Indenture will be a valid and binding
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agreement of the Issuers, enforceable against each of the Issuers in
accordance with its terms except as (i) enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(k) The Notes and the Exchange Notes (as defined in the Registration
Rights Agreement) have been duly authorized and, when issued, executed and
authenticated in accordance with the provisions of the Indenture and, in
the case of the Exchange Notes, the Exchange Offer (as defined in the
Registration Rights Agreement), and in the case of the Notes, delivered to
and paid for by the Initial Purchasers in accordance with the terms of this
Agreement, will have been validly executed and delivered and will
constitute valid and legally binding obligations of the Company, entitled
to the benefits provided by the Indenture and enforceable against the
Company in accordance with their terms, except as (i) enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles
of general applicability.
(l) The Guarantee to be endorsed on the Notes by each Guarantor has
been duly authorized by such Guarantor and on the Closing Date, will have
been duly executed and delivered by each such Guarantor. The Guarantee to
be endorsed on the Exchange Notes by each Guarantor has been duly
authorized by such Guarantor and, when issued, will have been duly executed
and delivered by each such Guarantor. When the Notes have been issued,
executed and authenticated in accordance with the Indenture and delivered
to and paid for by the Initial Purchasers in accordance with the terms of
this Agreement (or, in the case of the Exchange Notes, issued, executed and
authenticated in accordance with the terms of the Exchange Offer and the
Indenture), the Guarantee endorsed on the Notes or the Exchange Notes, as
applicable, will be entitled to the benefits provided by the Indenture, and
will be valid and binding obligation of the Guarantors, enforceable against
each of the Guarantors in accordance with their terms except as (i)
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
(m) The Securities and the Indenture will conform, in all material
respects, to the descriptions thereof in the Offering Memorandum.
(n) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale of
the Notes) will violate or result in a violation of Regulations T, U, and X
of the Board of Governors of the Federal Reserve System.
(o) Except as described in the Offering Memorandum (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), each of the agreements described in the Offering Memorandum
under the heading "Certain
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Relationships and Related Transactions" "-- The Stockholders' Agreement,"
"--License Agreement," "-- Roaming Agreement" and "-- Resale Agreement" are
in full force and effect. Neither the Company nor any of the Guarantors is,
or with the giving of notice or lapse of time or both would be, in
violation of or in default under (i) any of those agreements, (ii) its
Certificate of Incorporation or By-Laws (or similar organizational
documents) or (iii) any indenture, mortgage, deed of trust, loan agreement,
franchise agreement, license agreement or other agreement or instrument to
which the Company or any of the Guarantors is a party or by which any of
them are bound, except for violations and defaults which individually and
in the aggregate are not material to the Company and the Guarantors, taken
as a whole.
(p) The execution and delivery by the Issuers of the Offering
Agreements, the issuance and sale of the Securities and the consummation of
the transactions therein contemplated (i) will not conflict with or result
in a breach of any of the terms or provisions of, or constitute a default
or Repayment Event (as defined below) under any indenture, mortgage, deed
of trust, loan agreement, franchise agreement, license agreement, or other
agreement or instrument to which the Company or any of the Guarantors is a
party or by which the Company or any of the Guarantors is bound or to which
any of the property or assets of the Company or any of the Guarantors is
subject, which conflict, breach, default or Repayment Event could have,
singly or in the aggregate, a Material Adverse Effect, (ii) will not result
in any violation of any applicable law or statute or any order, rule or
regulation (including, without limitation, the Communications Act of 1934
(the "1934 Communications Act") and the Telecommunications Act of 1996
(together with the 1934 Communications Act the "Communications Act"), and
the rules and regulations of the FCC thereunder) of any court or
governmental agency or body (including without limitation, the Federal
Communications Commission (the "FCC")) having jurisdiction over the
Company, the Guarantors or any of their respective properties, except any
such violation that, singly or in the aggregate, would not have a Material
Adverse Effect, and (iii) will not result in any violation of the
provisions of the organizational documents of any Issuer. As used herein, a
"Repayment Event" means any event or condition that gives the holder of any
note, debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require repayment of all or a portion of
such indebtedness by the Company or any Guarantor.
(q) No filing with, or consent, approval, authorization, order,
license, registration or qualification of or with any court or governmental
agency or body is required for the execution and delivery by the Issuers of
the Offering Agreements, the issuance and sale of the Securities or the
consummation of the transactions contemplated therein, except such filings,
consents, approvals, authorizations, orders, licenses, registrations or
qualifications (i) as have been made or obtained, (ii) as may be required
under any state or foreign securities or Blue Sky Laws in connection with
the purchase and distribution of the Securities by the Initial Purchasers,
(iii) in the case of the performance of the Registration Rights Agreement,
such as may be required under the Securities Act, the Trust Indenture Act
of 1939, as amended (the "TIA") and by the rules and regulations of the
National Association of Securities Dealers, Inc. (the "NASD") and (iv) the
failure of
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which to make or obtain will not, singly or in the aggregate, result in a
Material Adverse Effect.
(r) Each of the Company and the Guarantors owns, possesses or has
obtained such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state or local regulatory agencies or bodies
(including without limitation, the FCC), necessary to own or lease, as the
case may be, and to conduct the business now operated by them or as
contemplated to be operated by them in the Offering Memorandum, except
where the failure to own, possess or obtain any such Governmental License
would not be reasonably expected to have a Material Adverse Effect; each of
the Company and the Guarantors is in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure so
to comply would not, singly or in the aggregate, have a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force and
effect, except where the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect would
not have a Material Adverse Effect; and none of the Company or any of the
Guarantors has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses that, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect; and each of the Company
and the Guarantors is in compliance with all laws and regulations relating
to the conduct of its business as conducted as of the date hereof, except
to the extent that failure to so comply would not, singly or in the
aggregate, have a Material Adverse Effect.
(s) There are no legal or governmental investigations, actions, suits
or proceedings (including, without limitation, before the FCC)
(collectively, "Proceedings") pending or, to the Company's knowledge,
threatened against or affecting the Company or any of the Guarantors or any
of their respective properties or of which the Company or any of the
Guarantors is or may be a party or of which any property of the Company or
any of the Guarantors is or may be the subject which, singly or in the
aggregate, could have, or reasonably could be expected to have, a Material
Adverse Effect.
(t) The Company and the Guarantors have good and marketable title in
fee simple to all items of real property and good title to all material
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described or referred to in the
Offering Memorandum and except to the extent as would not, singly or in the
aggregate, have a Material Adverse Effect; and any real property and
buildings held under lease by the Company and the Guarantors are held by
them under valid, existing and enforceable leases with such exceptions as
would not, singly or in the aggregate, have a Material Adverse Effect.
(u) No Issuer is, or will be after giving effect to the offering and
sale of the Securities and the application of the proceeds therefrom (as
described in the Offering Memorandum under the caption "Use of Proceeds"),
an "investment company" or an en-
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tity "controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "Investment Company
Act").
(v) PricewaterhouseCoopers LLP who has certified certain financial
statements in the Offering Memorandum, are independent public accountants
within the meaning of rule 101 of the AICPA's Code of Professional Conduct
and its interpretations and rulings.
(w) The Company and the Guarantors have filed all federal and material
state, local and foreign tax returns which have been required to be filed
and have paid all taxes shown thereon and all assessments received by them
or any of them to the extent that such taxes have become due and are not
being contested in good faith, except such amounts that are not, singly or
in the aggregate, material to the Company and the Guarantors taken as a
whole; and there is no tax deficiency which has been or, to the Company's
knowledge, might reasonably be expected to be asserted or threatened
against the Company or any Guarantor, other than such tax deficiencies in
such amounts that are not, singly or in the aggregate, material to the
Company and the Guarantors taken as a whole.
(x) Neither the Company, nor any of the Guarantors nor any person
acting on its or their behalf has taken or will take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or, to the Company's knowledge,
manipulation of the price of the Company's securities.
(y) There are no existing or, to the Company's knowledge, threatened
labor disputes with the employees of the Company or any of the Guarantors
which, singly or in the aggregate, would have a Material Adverse Effect;
and the Company is not aware of any existing, threatened or imminent labor
disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that could result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and the Guarantors, taken as a whole.
(z) The Company and each of its Guarantors are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; neither the Company nor any such Guarantor has been refused
any insurance coverage sought or applied for; and neither the Company nor
any such Guarantor has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not materially and adversely
affect the condition, financial or otherwise, or the earnings, business or
operations of the Company and the Guarantors, taken as a whole.
(aa) The Company and each of the Guarantors owns or possesses or has
the right to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service ▇▇▇▇
registrations, copyrights, licenses and
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know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures)
(collectively, "Intellectual Property") necessary for the conduct of their
respective businesses as described in the Offering Memorandum; and the
conduct of their respective businesses does not conflict in any material
respect with, and the Issuers and their respective Guarantors have not
received any notice of any claim of conflict with, any such rights of
others.
(bb) The Company and the Guarantors (i) are in compliance with any and
all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except, in each case,
where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a Material Adverse Effect.
(cc) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a Material Adverse
Effect.
(dd) Each employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
that is maintained, administered or contributed to by the Company or any of
its affiliates for employees or former employees of the Company and its
affiliates has been maintained in compliance with its terms and the
requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Internal Revenue Code of 1986,
as amended (the "Code"), except to the extent non-compliance, singly or in
the aggregate, would not have a Material Adverse Effect. No prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975 of
the Code has occurred with respect to any such plan excluding transactions
effected pursuant to a statutory or administrative exemption. For each such
plan which is subject to the funding rules of Section 412 of the Code or
Section 302 of ERISA no "accumulated funding deficiency" as defined in
Section 412 of the Code has been incurred, whether or not waived, and the
fair market value of the assets of each such plan (excluding for these
purposes accrued but unpaid contributions) exceeded the present value of
all benefits accrued under such plan determined using reasonable actuarial
assumptions.
(ee) No forward-looking statement (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act) contained in the
Offering Memorandum has been made or reaffirmed without a reasonable basis
or has been disclosed other than in good faith.
-11-
(ff) None of the Issuers and no affiliate (as defined in Rule 501(b)
of Regulation D under the Securities Act ("Regulation D")) thereof has
directly, or through any agent, sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of, any security (as defined in the
Securities Act) which is or will be integrated with the sale of the
Securities in a manner that would require the registration under the
Securities Act of the offering contemplated by the Offering Memorandum.
(gg) None of the Issuers and no person acting on behalf of any of them
has offered or sold the Securities by means of any general solicitation or
general advertising within the meaning of Rule 502(c) under the Securities
Act or, with respect to Securities sold outside the United States to
non-U.S. persons (as defined in Rule 902 under the Securities Act), by
means of any directed selling efforts within the meaning of Rule 902 under
the Securities Act, and the Issuers and all persons acting on their behalf
have complied with and will implement the "offering restrictions" within
the meaning of such Rule 902; provided, however, that no representation is
made with respect to the actions of any Initial Purchaser.
(hh) Assuming the accuracy of and compliance with the representations
and agreements in Section 2 of this Agreement by the Initial Purchasers, it
is not necessary in connection with the offer, sale and delivery of the
Securities in the manner contemplated by this Agreement to register the
Securities under the Securities Act or to qualify an indenture under the
TIA.
(ii) The Securities satisfy the requirements set forth in Rule
144A(d)(3) under the Securities Act.
(jj) No relationship, direct or indirect, exists between or among the
Company or any of the Guarantors, on the one hand, and the directors,
officers, stockholders, holders of units of partnership interest, customers
or suppliers of the Company or any of the Guarantors, on the other hand,
which would be required by the Securities Act to be described in a
registration statement or prospectus filed with the Commission with respect
to a public offering of the Securities which is not described in the
Offering Memorandum.
(kk) The Company and each of the Guarantors has legally secured and
validly holds all FCC licenses (the "FCC Licenses") necessary for the
operation of the PCS network and provision of the PCS services identified
in the Offering Memorandum (the "PCS Network") as owned and intended to be
operated by the Company and each of the Guarantors. The FCC licenses
described in the Offering Memorandum as owned by the Company are validly
issued and in full force and effect. The Company has no reason to believe
that such FCC Licenses will not be renewed for a full term when they are
due for renewal.
(ll) Each of the Company and the Guarantors has filed with the FCC all
material reports, documents, instruments, information and applications
required to be filed
-12-
pursuant to the FCC's rules, regulations and requests. No notice has been
issued by the FCC which could permit, or after notice or lapse of time or
both could permit, revocation or termination of any material FCC License of
the Company and each of the Guarantors prior to the expiration dates
thereof or which could result in any other material impairment of any of
the Company's and each of the Guarantors' rights thereunder.
(mm) No order or decree preventing the use of the Preliminary Offering
Memorandum or the Offering Memorandum, or any order asserting the
transactions contemplated by this Agreement are subject to the registration
requirements of the Securities Act has been issued and no proceeding for
that purpose has commenced or is pending or, to the knowledge of the
Company or any Guarantors, is contemplated.
5. The Issuers, jointly and severally, covenant and agree with each of
the Initial Purchasers as follows:
(a) as of the date of the Offering Memorandum, to furnish to the
Initial Purchasers, without charge, such number of copies of the Offering
Memorandum as they may reasonably request;
(b) before distributing any amendment or supplement to the Offering
Memorandum, to furnish to the Initial Purchasers a copy of the proposed
amendment or supplement for review and not to distribute any such proposed
amendment or supplement to which the Initial Purchasers reasonably object
within one Business Day;
(c) if, at any time prior to the completion of the offer and sale of
the Notes, any event shall occur as a result of which it is necessary to
amend or supplement the Offering Memorandum in order that the Offering
Memorandum does not contain an untrue statement of a material fact or omit
to state a 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 to amend or supplement the Offering
Memorandum to comply with law, forthwith to prepare and furnish, at the
expense of the Company, to the Initial Purchasers and to the dealers (whose
names and addresses the Initial Purchasers will furnish to the Company) to
which Securities may have been sold by the Initial Purchasers and to any
other dealers upon request, such amendments or supplements to the Offering
Memorandum as may be necessary so that the Offering Memorandum as so
amended or supplemented will not contain an untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or so that the Offering Memorandum will comply with law;
(d) the Issuers will cooperate with the Initial Purchasers and their
counsel in connection with the registration or qualification of the
Securities for offering and sale by the Initial Purchasers and by dealers
under the securities or Blue Sky laws of such jurisdictions as the Initial
Purchasers may designate and will file such documents necessary or
appropriate in order to effect such registration or qualification; provided
that in no event
-13-
shall any Issuer be obligated to file a general consent to service of
process in any jurisdiction or to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to taxation or service of process in suits, other than
those arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject;
(e) during the period beginning on the date hereof and continuing to
and including the Business Day following the Closing Date, not to offer,
sell, contract to sell, or otherwise dispose of any debt securities of or
guaranteed by the Company or any of the Guarantors which are substantially
similar to the Securities (other than the Securities);
(f) to use the net proceeds received by the Company from the sale of
the Securities pursuant to this Agreement in the manner specified in the
Offering Memorandum under the caption "Use of Proceeds";
(g) to use their reasonable best efforts to cause such Securities to
be eligible for The PORTAL Market ("PORTAL") of the NASD;
(h) during the period ending two years after the Closing Date, the
Company will not, and will use its reasonable best efforts to cause its
"affiliates" (as defined in Rule 144 under the Securities Act) not to,
resell any of the Notes which constitute "restricted securities" under Rule
144 that have been reacquired by any of them;
(i) whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
costs and expenses incident to the performance of its obligations
hereunder, including without limiting the generality of the foregoing, all
costs and expenses (i) incident to the preparation, issuance, execution,
authentication and delivery of the Securities, including any expenses of
the Trustee, (ii) incident to the preparation, printing and distribution of
the Preliminary Offering Memorandum and the Offering Memorandum (including
exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of eligibility for
investment of the Securities under the laws of such jurisdictions as the
Initial Purchasers may designate (including reasonable fees of counsel for
the Initial Purchasers and their disbursements in connection therewith),
(iv) in connection with the listing of the Securities on any securities
exchange or inclusion of the Securities on Portal, (v) in connection with
the printing (including word processing and duplication costs) and delivery
of the Preliminary and Supplemental Blue Sky Memoranda and the furnishing
to the Initial Purchasers and dealers of copies of the Preliminary Offering
Memorandum and the Offering Memorandum (and any amendments and supplements
thereto), including mailing and shipping, as herein provided, (vi) payable
to rating agencies in connection with the rating of the Securities, and
(vii) incurred by the Issuers in connection with a "road show"
presentations to potential investors;
-14-
(j) to take all reasonable action that is appropriate or necessary to
assure that offerings of other securities will not be integrated for
purposes of the Securities Act with the offering contemplated hereby;
(k) not to solicit any offer to buy or offer to sell Securities by
means of any form of general solicitation or general advertising within the
meaning of Rule 502(c) of Regulation D under the Securities Act;
(l) while the Securities remain outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act,
to, during any period in which the Company is not subject to Section 13 or
15(d) under the Exchange Act, make available to the Initial Purchasers and
any holder of Securities in connection with any sale thereof and any
prospective purchaser of Securities, in each case upon request, the
information specified in, and meeting the requirements of, Rule 144A(d)(4)
("Rule 144A(d)(4) Information") under the Securities Act (or any successor
thereto); and
(m) not to take any action prohibited by Regulation M under the
Exchange Act, in connection with the distribution of the Securities
contemplated hereby.
6. The several obligations of the Initial Purchasers hereunder to
purchase the Securities on the Closing Date are subject to the performance by
each of the Issuers of its obligations hereunder and to the following additional
conditions:
(a) The representations and warranties of the Issuers contained herein
shall be true and correct in all material respects, on and as of the
Closing Date as if made on and as of the Closing Date and the Issuers shall
have complied, in all material respects, with all agreements and all
conditions on their part to be performed or satisfied hereunder at or prior
to the Closing Date.
(b) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of (i) any downgrading, (ii) any
intended or potential downgrading or (iii) any review or possible change
that does not indicate an improvement, in the rating accorded any debt of
or guaranteed by the Company or any of the Guarantors by any "nationally
recognized statistical rating organization", as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act, if, in the case of the
securities of any Guarantor, the event described in clauses (i), (ii) or
(iii) above would have a Material Adverse Effect.
(c) Since the respective dates as of which information is given in the
Offering Memorandum, there shall not have been any material decrease in the
capital stock or material increase in the long-term debt of the Company or
any Material Adverse Change, or any development involving a Prospective
Material Adverse Change, otherwise than as set forth or contemplated in the
Offering Memorandum (exclusive of any amendment or supplement thereto after
the date hereof), the effect of which in the judgment of the Initial
Purchasers makes it impracticable or inadvisable to proceed with the
offering or the de-
-15-
livery of the Securities on the Closing Date on the terms and in the manner
contemplated in the Offering Memorandum. Neither the Company nor any of the
Guarantors has sustained since the date of the latest audited financial
statements included in the Offering Memorandum any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Offering Memorandum.
(d) The Initial Purchasers shall have received on and as of the
Closing Date a certificate of two executive officers of the Company and
each Guarantor (such certificate not to impose personal liability on such
officers), with specific knowledge about the Issuers' financial matters,
satisfactory to the Initial Purchasers to the effect set forth in
subsections (a) through (c) of this Section.
(e) Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ PLLC, counsel for the Company, shall have
furnished to the Initial Purchasers their written opinions, dated the
Closing Date and in form and substance satisfactory to the Initial
Purchasers, substantially in the form set forth in Annex A, attached
hereto.
(f) The Initial Purchasers shall have received on and as of the
Closing Date an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the
Initial Purchasers, with respect to such matters as the Initial Purchasers
may reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass upon
such matters.
(g) On the date of the issuance of the Offering Memorandum and also on
the Closing Date, PricewaterhouseCoopers LLP shall have furnished to the
Initial Purchasers letters, dated the respective dates of delivery thereof,
in form and substance satisfactory to the Initial Purchasers, containing
statements and information of the type customarily included in accountants'
"comfort letters" with respect to the financial statements and certain
financial information contained in the Offering Memorandum.
(h) The Issuers shall have executed and delivered the Registration
Rights Agreement and the Indenture.
(i) On or prior to the Closing Date the Issuers shall have furnished
to the Initial Purchasers such further certificates and documents as the
Initial Purchasers shall reasonably request.
7. The Issuers, jointly and severally, agree to indemnify and hold
harmless each Initial Purchaser, each affiliate of any Initial Purchaser which
assists such Initial Purchaser in the distribution of the Securities and each
person, if any, that controls any Initial Purchaser within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act (each such
person, an "Indemnitee"), from and against any and all losses, claims, damages
and liabilities (joint and several) (including, without limitation, the
reasonable legal fees and other expenses incurred in connection with any suit,
action or proceeding or any claim asserted) inso-
-16-
far as such loss, claim, damage, liability or action arises out of, or is based
upon (i) 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 or supplement thereto, or (ii) the omission or alleged omission
to state in any Preliminary Offering Memorandum or the Offering Memorandum, or
in any amendment or supplement thereto, any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; except insofar as such
losses, claims, damages or liabilities arise out of or are based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
the Preliminary Offering Memorandum or the Offering Memorandum, or in any such
amendment or supplement thereto in reliance upon and in conformity with
information relating to any Initial Purchaser furnished to the Issuers in
writing by such Initial Purchaser through ▇▇▇▇▇▇ Brothers Inc., Citigroup Global
Markets Inc., ▇.▇. ▇▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated (together, the "Representatives") expressly for use therein;
and provided, that with respect to any such untrue statement in or omission from
the Preliminary Offering Memorandum, the indemnity agreement contained in this
Section 7 shall not inure to the benefit of any Initial Purchaser (or for the
benefit of any person that controls, or is an affiliate of such Initial
Purchaser) to the extent that the sale to the person asserting any such loss,
claim, damage, liability or action was an initial resale by such Initial
Purchaser and any such loss, claim, damage, liability or action of or with
respect to such Initial Purchaser results from the fact that both (i) a copy of
the Offering Memorandum was not sent or given to such person at or prior to the
written confirmation of the sale of such Securities to such person and (ii) the
untrue statement in or omission from such Preliminary Offering Memorandum was
corrected in the Offering Memorandum unless, in either case, such failure to
deliver the Offering Memorandum was a result of non-compliance by the Company
with the provisions of Section 5(a) hereof.
Each Initial Purchaser agrees, severally and not jointly, to indemnify
and hold harmless the Issuers, and each person that controls the Issuers within
the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the Issuers to each
Initial Purchaser, but only with reference to information relating to such
Initial Purchaser furnished to the Issuers in writing by such Initial Purchaser
through the Representatives expressly for use in the Preliminary Offering
Memorandum, the Offering Memorandum or any amendment or supplement thereto.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the con-
-17-
trary, (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any appropriate local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed as
they are incurred. Any such separate firm for the Initial Purchasers, each
affiliate of any Initial Purchaser which assists such Initial Purchaser in the
distribution of the Securities and such control persons of Initial Purchasers
shall be designated in writing by the Representatives and any such separate firm
for the Issuers and such control persons of the Issuers shall be designated in
writing by the Issuers. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have
requested in writing an Indemnifying Person to reimburse the Indemnified Person
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the Indemnifying Person agrees that it shall be
liable for any settlement of any proceeding or claim effected without its
written consent if (i) such settlement is entered into more than 60 days after
receipt by such Indemnifying Person of the aforesaid written request, (ii) such
Indemnifying Person shall have received notice of the terms of such settlement
at least 15 days prior to such settlement being entered into and (iii) such
Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuers on the one hand and the Initial Purchasers on
the other hand from the offering of the Securities or (ii) if the allocation
provided by clause (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 Issuers on the one
hand and the Initial Purchasers on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Issuers on the one hand and the Initial
Purchasers on the other shall be deemed to be in the same respective proportions
as the net proceeds from the offering (before deducting expenses) re-
-18-
ceived by the Issuers and the total discounts and commissions received by the
Initial Purchasers bear to the aggregate offering price of the Securities. The
relative fault of the Issuers on the one hand and the Initial Purchasers on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Issuers
or by the Initial Purchasers and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Issuers and the Initial Purchasers agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Initial Purchasers were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses incurred by such Indemnified
Person in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an Initial
Purchaser be required to contribute any amount in excess of the amount by which
the total price at which the Securities purchased by it were offered exceeds the
amount of any damages that such Initial Purchaser has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations to contribute pursuant to this Section 7 are several in
proportion to the respective principal amount of Securities set forth opposite
their names in Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Issuers set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Initial Purchaser or any person controlling any Initial Purchaser or by
or on behalf of the Issuers or any other person controlling the Issuers and
(iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, the obligations of the
Initial Purchasers hereunder may be terminated by any of the Representatives, by
notice given to the Issuers, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading in securities generally
shall have been suspended or minimum prices shall have been established on or
by, as the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the Nasdaq National Market, the Chicago Board Options Exchange, the
Chicago Mercantile Exchange or the Chicago Board of Trade or a material
disruption has occurred in commercial banking or securities settlement, payment
or clearance services in the United
-19-
States, (ii) trading of any securities of or guaranteed by any Issuer shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or (iv) any attack on,
outbreak or escalation of hostilities or act of terrorism involving the United
States, any declaration of war by Congress or any other national or
international calamity, crisis or emergency if, in the judgment of the
Representatives, the effect of any such attack, outbreak, escalation, act
declaration, calamity, crisis or emergency makes it impractical or inadvisable
to proceed with completion of the offering or sale of and payment for the
Securities; or (v) the occurrence of any other calamity, crisis (including
without limitation as a result of terrorist activities), or material adverse
change in general economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States shall be
such) as to make it, in the judgment of Representatives, impracticable or
inadvisable to proceed with offering or delivery of the Securities being
delivered on the Closing Date or that, in the judgment of Representatives, would
materially and adversely affect the financial markets or the markets for the
Securities and other debt securities.
9. This Agreement shall become effective upon the execution and
delivery hereof by the parties hereto.
If on the Closing Date, any one or more of the Initial Purchasers
shall fail or refuse to purchase Notes which it or they have agreed to purchase
hereunder, and the aggregate principal amount of Notes which such defaulting
Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of Notes to be
purchased on such date, the other Initial Purchasers shall be obligated
severally in the proportions that the principal amount of Notes set forth
opposite their respective names in Schedule I bears to the aggregate principal
amount of Notes set forth opposite the names of all such non-defaulting Initial
Purchasers, or in such other proportions as the Initial Purchasers may specify,
to purchase the Notes which such defaulting Initial Purchaser or Initial
Purchasers agreed but failed or refused to purchase on such date; provided,
however, that in no event shall the aggregate principal amount of Notes that any
Initial Purchaser has agreed to purchase pursuant to Section 1 be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such aggregate
principal amount of 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 Notes which it or they have agreed to purchase hereunder,
and the aggregate principal amount of Notes with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of Notes to be
purchased, and arrangements satisfactory to the Initial Purchasers and the
Issuers for the purchase of such Notes are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Initial Purchaser or the Issuers. In any such case either the
Initial Purchasers or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Offering Memorandum or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Initial Purchaser from liability in respect of any
default of such Initial Purchaser under this Agreement or the offering
contemplated hereunder.
-20-
10. If this Agreement shall be terminated by the Initial Purchasers,
or any of them, because of any failure or refusal on the part of any of the
Issuers to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason any of the Issuers shall be unable to perform
its obligations under this Agreement or any condition of the Initial Purchasers'
obligations cannot be fulfilled, the Issuers agree to reimburse the Initial
Purchasers or such Initial Purchasers as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and expenses of their counsel) reasonably incurred by such Initial
Purchasers in connection with this Agreement or the offering contemplated
hereunder.
11. This Agreement shall inure to the benefit of and be binding upon
the Issuers, each Initial Purchaser, any affiliate of any Initial Purchaser
which assists such Initial Purchaser in the distribution of the Securities, any
controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Notes from any Initial Purchaser
shall be deemed to be a successor by reason merely of such purchase.
12. Any action by the Initial Purchasers hereunder may be taken by the
Representatives on behalf of the Initial Purchasers, and any such action taken
by the Representatives shall be binding upon the Initial Purchasers. All notices
and other communications hereunder shall be in writing and shall be deemed to
have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Initial Purchasers shall be given to the
Initial Purchasers c/▇ ▇▇▇▇▇▇ Brothers Inc, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇. ▇▇▇▇▇ (Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Syndicate
Registration Department, with a copy, in the case of any notice pursuant to
Section 7, to the Director of Litigation, Office of General Counsel, ▇▇▇▇▇▇
Brothers Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, c/o
Citigroup Global Markets Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
(telecopy: (▇▇▇) ▇▇▇-▇▇▇▇); Attention: Office of the General, c/o ▇.▇. ▇▇▇▇▇▇
Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (telecopy: (212)
270-1063); Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, c/o Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇); Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Esq. Notices to the Issuers shall be given at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (telecopy: (▇▇▇) ▇▇▇-▇▇▇▇); Attention: Chief
Executive Officer with a copy to Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ PLLC, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇ (telecopy: (202)
776-2222) Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
14. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
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If the foregoing is in accordance with your understanding, please sign
and return four counterparts hereof.
Very truly yours,
TRITON PCS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
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GUARANTORS:
TRITON MANAGEMENT COMPANY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
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TRITON PCS FINANCE COMPANY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
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TRITON PCS HOLDINGS COMPANY L.L.C.
TRITON PCS EQUIPMENT COMPANY L.L.C.
TRITON PCS OPERATING COMPANY L.L.C.
TRITON PCS INVESTMENT COMPANY L.L.C.
By: Triton Management Company, Inc.,
its manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
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Accepted as of the date first above written:
▇▇▇▇▇▇ BROTHERS INC.
CITIGROUP GLOBAL MARKETS INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
RABO SECURITIES USA, INC.
By: ▇▇▇▇▇▇ BROTHERS INC.,
as Authorized Representative
By: /s/ ▇▇▇▇▇▇▇ Sleigh
----------------------------------
Name: ▇▇▇▇▇▇▇ Sleigh
Title: Managing Director
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SCHEDULE I
Aggregate Principal
Amount of Notes
Initial Purchaser to be Purchased
----------------- -------------------
▇▇▇▇▇▇ Brothers Inc. .................................... $268,810,000
Citigroup Global Markets Inc. ........................... $268,810,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. ............................. $ 81,190,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ and ▇▇▇▇▇
Incorporated ......................................... $ 81,190,000
Rabo Securities USA, Inc. ............................... $ 25,000,000
Total ................................................ $725,000,000
ANNEX A
Form of Opinion
1. The Company is a corporation validly existing and in good standing
under the laws of the State of Delaware.
2. Each Guarantor that is a corporation is validly existing and in
good standing under the laws of the State of Delaware.
3. Each Guarantor that is a limited liability company is validly
existing and in good standing under the laws of the State of Delaware.
4. Each Guarantor is in good standing as a foreign corporation or
foreign limited liability company, as applicable, in the jurisdictions set forth
opposite such Guarantor's name on a schedule to counsel's opinion.
5. The Company and each Guarantor has the corporate or limited
liability company, as applicable, power and authority to own its property and to
conduct its business as described in the Offering Memorandum under the caption
"Business".
6. The Indenture has been duly authorized, executed and delivered by
the Company and each of the Guarantors and, assuming due authentication and
delivery by the Trustee, constitutes a valid and legally binding agreement of
the Company and each of the Guarantors, enforceable against the Company and each
of the Guarantors in accordance with its terms.
7. The Notes to be purchased by the Initial Purchasers from the
Company pursuant to the Purchase Agreement have been duly authorized by the
Company for issuance and sale to the Initial Purchasers pursuant to the Purchase
Agreement. When executed and authenticated in accordance with the provisions of
the Indenture and issued and delivered by the Company to the Initial Purchasers
pursuant to the Purchase Agreement, against payment of the consideration set
forth in the Purchase Agreement, the Notes will constitute valid and legally
binding obligations of the Company enforceable against the Company in accordance
with their terms.
8. The Guarantee to be endorsed on the Notes by each Guarantor has
been duly authorized by such Guarantor and, when the Notes have been duly
executed by the Company and authenticated by the Trustee in accordance with the
terms of the Indenture and delivered to and paid for by the Initial Purchasers
in accordance with the terms of the Purchase Agreement, the Guarantee of each
Guarantor endorsed on the Notes will be the valid and binding obligation of such
Guarantor, enforceable against such Guarantor in accordance with its terms.
9. The Purchase Agreement has been duly authorized, executed and
delivered by the Company and each of the Guarantors.
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10. The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and each of the Guarantors and, assuming
due execution and delivery by the Initial Purchasers, constitutes a valid and
legally binding agreement of the Company and each of the Guarantors, enforceable
against the Company and each of the Guarantors in accordance with its terms.
11. The Exchange Notes have been duly authorized by the Company.
12. The Guarantee to be endorsed on the Exchange Notes has been duly
authorized by each Guarantor.
13. To counsel's knowledge, no consent, approval, authorization,
license, qualification, exemption or order of any federal or District of
Columbia court or governmental agency or body is required under Applicable Law
for the execution and delivery of, or the consummation on the date hereof of the
transactions contemplated by, the Offering Documents by the Company and each of
the Guarantors, except as has already been acquired or as may be required under
state securities or "Blue Sky" laws or, with respect to the transactions
contemplated by the Registration Rights Agreement, under the United States
federal securities laws and the rules and regulations of the National
Association of Securities Dealers, Inc.
14. The execution and delivery by the Company and the Guarantors of,
and the consummation by the Company and the Guarantors on the date hereof of the
transactions contemplated by, the Offering Documents and the issuance, sale and
delivery by the Company and the Guarantors of the Notes and Guarantees on the
date hereof will not result in a breach or violation of any of the terms and
provisions of or constitute a default under, (i) contract laws of the State of
New York, the laws of the District of Columbia, the United States federal
securities laws, the Delaware General Corporation Law or the Delaware Limited
Liability Company Act, (ii) the certificates of incorporation, bylaws,
certificates of formation or limited liability company agreements, as
applicable, of the Company and the Guarantors, (iii) any agreement listed on a
schedule to counsel's opinion, or (iv) to counsel's knowledge, the express
provisions of any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any of the Guarantors, except any
such breaches, violations or defaults which would not, individually or in the
aggregate, have a Material Adverse Effect.
15. To counsel's knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, governmental or otherwise,
that seeks to restrain, enjoin, prevent the consummation of or otherwise
challenge the issuance or sale of the Notes or the application of the proceeds
therefrom.
16. To counsel's knowledge, (a) there are no material legal or
governmental proceedings pending or threatened to which the Company or any
Guarantor is a party or to which any of the properties of the Company or any
Guarantor is subject that are required to be described in the Offering
Memorandum that are not so described, and (b) there are no material con-
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tracts or other material documents to which the Company or any Guarantor is a
party or to which any of the properties of the Company or any Guarantor is
subject that are required to be described in the Offering Memorandum that are
not so described.
17. The statements in the Offering Memorandum under the captions
"Description of the Notes," "Description of Certain Indebtedness" and "Certain
United States Federal Tax Consequences" to the extent that such statements
constitute a summary of agreements or legal matters have been reviewed by such
counsel and, taken together, accurately describe in all material respects such
agreements and legal matters.
18. The statements in the Offering Memorandum under the captions
"Management --Employment Agreements" and "Certain Relationships and Related
Transactions" (other than under the caption "Certain Relationships and Related
Transactions --Other Related Party Transactions"), in each case insofar as such
statements constitute summaries of the legal matters, documents or proceedings
referred to therein, accurately summarize in all material respects such legal
matters, documents and proceedings.
19. The Company is not, and after giving effect to the offering and
sale of the Notes and the application of the proceeds thereof as described in
the Offering Memorandum, will not be required to register as an "investment
company" or an entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.
20. Neither the consummation of the transactions contemplated by the
Purchase Agreement, nor the Company's sale, issuance, execution or delivery of
the Notes in accordance with the Purchase Agreement, nor the application of the
proceeds therefrom (if applied as described in the Offering Memorandum under the
caption "Use of Proceeds"), will violate Regulation T (12 C.F.R. part 220), U
(12 C.F.R. part 221) or X (12 C.F.R. part 224) of the Board of Governors of the
Federal Reserve System.
21. Neither the registration under the Securities Act of the Notes or
the Guarantees nor the qualification of the Indenture in respect thereof under
the Trust Indenture Act of 1939, as amended, is required for the sale of the
Notes and the Guarantees to the Initial Purchasers as contemplated by the
Purchase Agreement or for the initial resale of the Notes by the Initial
Purchasers in the manner contemplated by the Purchase Agreement (the "Exempt
Resales"), (i) assuming that the Initial Purchasers are "qualified institutional
buyers," as defined in Rule 144A under the Securities Act (a "QIB"), or a person
permitted to purchase the Notes in offshore transactions in reliance upon
Regulation S under the Securities Act (a "Regulation S Purchaser"), (ii)
assuming, and subject to, the accuracy of, and compliance with, the
representations and agreements of the Initial Purchasers and the Company
contained in the Purchase Agreement, and (iii) assuming that Exempt Resales are
made by the Initial Purchasers in accordance with the Purchase Agreement and
solely to QIBs and Regulation S Purchasers ("Eligible Purchasers") (it
-4-
being understood that no opinion is expressed as to any subsequent resale of any
Note by any Eligible Purchaser).
22. (a) The sale of the Notes, the issuance of the Guarantee and the
execution and delivery by the Company and the Guarantors of the Transaction
Documents to which each is a party (i) do not violate any Communications Laws,
and (ii) do not cause any violation, cancellation, termination, revocation,
forfeiture, or adverse modification of any FCC Licenses.
(b) The sale of the Notes and the issuance of the Guarantee do not
require any authorization or filing with the FCC.
23. Except as may be noted on an annex to the opinion ("Annex C") or
disclosed in the Offering Memorandum and except for rule making proceedings and
similar proceedings of general applicability to the CMRS industry or substantial
segments thereof, to counsel's knowledge, there is no notice of violation, order
to show cause, petition to deny or complaint, or investigatory proceeding
pending against the Company or any subsidiary of the Company as may be listed in
an annex to the opinion ("Annex A") before the FCC that reasonably could be
expected to result in cancellation, termination, revocation, forfeiture or
modification of the FCC Licenses that individually or in the aggregate would
have a material adverse effect upon the Company and its subsidiaries considered
as a single enterprise. Counsel informs the Initial Purchasers, however, that
(i) the staff of the FCC's Wireless Telecommunications Bureau has advised
counsel that no reliable central record of such matters exists by individual
licensee name, (ii) there is, to counsel's knowledge, no central location of
orders, decisions, judgments or other rulings that would permit the reliable
identification of all such matters that may be pending with respect to the
Company or the subsidiaries of the Company listed in Annex A, and (iii) except
as otherwise noted in Annex C, counsel has not undertaken to examine or to make
inquiries with respect to any such records.
24. The statements in the Offering Memorandum under the captions
"Business -- Regulation" and "--State Regulation and Local Approvals" in each
case insofar as such statements constitute summaries of legal matters, documents
or proceedings referred to therein, and insofar as they are, or refer to,
statements of federal communications law under the Communications Laws
applicable to commercial mobile radio services or legal conclusions with respect
to federal communications law under the Communications Laws applicable to the
commercial mobile radio services, accurately summarize such legal matters,
documents and proceedings in all respects material to the business of the
Company as described in the Offering Memorandum.
25. Based on the review of FCC publicly available records and
counsel's inquiry of the FCC described herein, each of the FCC Licenses is held
by the subsidiary of the Company listed in Annex A as the holder thereof, is in
effect, and to counsel's knowledge has not been suspended, terminated or
revoked. The PCS and cellular radio licenses issued by the FCC and included in
the FCC Licenses listed in Annex A authorize the holder thereof listed in
-5-
Annex A to operate either a PCS or cellular system (as indicated in Annex A) in
the markets listed in Annex A without a further PCS or cellular license issued
by the FCC.
In the course of the preparation of the Offering Memorandum, such
counsel participated in conferences with officers and representatives of the
Company and the Guarantors, representatives of the independent certified public
accountants of the Company, your representatives and your counsel, at which
conferences the contents of the Offering Memorandum and related matters were
discussed. Although such counsel are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Offering Memorandum (except to the extent expressly provided in
paragraphs 17 and 18 above) or the documents referred to in the Offering
Memorandum and have not made an independent investigation, check or verification
of facts for the purpose of rendering this opinion, on the basis of the
foregoing, we advise you that, nothing has come to such counsel's attention that
leads such counsel to believe that the Offering Memorandum (except for financial
statements and schedules and other financial information and statistical and
accounting data included or incorporated by reference therein or omitted
therefrom, as to which such counsel expresses no statement or belief), as of the
date thereof or as of the date hereof, contained or contains an untrue statement
of a material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statement therein, in the light of
circumstances under which they were made, not misleading.
The opinions set forth in items (1) through (21) above shall be
subject to the following additional qualifications:
(i) The enforceability of agreements, documents and instruments is
subject to general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, and
the discretion of the court before which any proceeding therefor may be
brought, regardless of whether enforcement is sought in a proceeding in
equity or at law, and bankruptcy, reorganization, insolvency, fraudulent
conveyance or transfer, moratorium (whether general or specific) and other
laws affecting creditors' rights or the relief of debtors generally.
(ii) Counsel expresses no opinion concerning the enforceability of (a)
waivers of notice or of any other constitutional, statutory or common law
rights, including, without limitation, waiver of stay, extension or usury
laws, (b) indemnification, contribution and other provisions to the extent
such provisions are deemed to violate public policy or federal or state
securities laws, and (c) submissions to the personal jurisdiction of any
particular court.
(iii) Counsel expresses no opinion herein as to any federal, state or
local statutes, laws, rules or regulations relating to the regulation of
telecommunications.
-6-
(iv) Counsel expresses no opinion as to the creation, attachment,
perfection or priority of any security interest in any property, tangible
or intangible, real or personal.
(v) Counsel expresses no opinion as to any financial or accounting
determinations by the Company or any of the Guarantors or compliance by the
Company or any of the Guarantors with any financial covenants in any
contract or agreement.
(vi) Counsel expresses no opinion as the effect of any provisions of
the law restricting dividends or other distributions by a corporation or
limited liability company for the benefit of its stockholders or members.
