Exhibit 1.1
$165,000,000
iPCS ESCROW COMPANY
iPCS, INC.
iPCS EQUIPMENT, INC.
iPCS WIRELESS, INC.
11 1/2% SENIOR NOTES DUE 2012
PURCHASE AGREEMENT
April 22, 2004
CREDIT SUISSE FIRST BOSTON LLC
BEAR, ▇▇▇▇▇▇▇ & CO. INC.,
c/o Credit Suisse First Boston LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Ladies and Gentlemen:
1. INTRODUCTORY. iPCS Escrow Company, a Delaware corporation (the "Escrow
Company"), proposes, subject to the terms and conditions stated herein, to issue
and sell to Credit Suisse First Boston LLC and Bear, ▇▇▇▇▇▇▇ & Co. Inc. (the
"Purchasers") U.S. $165,000,000 principal amount of its 11 1/2% Senior Notes due
2012 (the "Offered Securities") to be issued under an indenture (the
"Indenture"), dated as of the Closing Date (as defined herein), between the
Escrow Company and U.S. Bank National Association, as Trustee (the "Trustee"),
on a private placement basis pursuant to an exemption under Section 4(2) of the
U.S. Securities Act of 1933, as amended (the "Securities Act").
The Company and its subsidiaries filed with the United States Bankruptcy
Court for the Northern District of Georgia on March 31, 2004, pursuant to
Chapter 11 of the U.S. Bankruptcy Code a plan of reorganization, as amended on
April 16, 2004. The issuance and sale of the Offered Securities pursuant to this
Agreement is part of a series of transactions designed to reorganize the
ownership and capital structure of iPCS, Inc., a Delaware corporation (the
"COMPANY" and, together with the Escrow Company, the "NOTE ISSUERS"). Such
transactions are referred to herein as the "REORGANIZATION." As part of the
consummation of the Reorganization, the Escrow Company will merge with and into
iPCS Escrow Holding Company, a Delaware corporation (the "HOLDING COMPANY"),
which will in turn, merge with and into the Company, with the Company being the
surviving entity (the "MERGER").
Upon consummation of the Merger, the Company will succeed to the
obligations of the Escrow Company hereunder and under the Indenture and the
Offered Securities and the Company's obligations under the Registration Rights
Agreement (as defined herein) will become
operative. Notwithstanding the foregoing, in the event of a Special Mandatory
Redemption (as defined in the Indenture), the Company's obligations under the
Registration Rights Agreement (as defined below) will terminate. In addition,
upon consummation of the Merger, the Offered Securities will become fully and
unconditionally guaranteed (the "GUARANTEES") as to payment of principal and
interest and premium and liquidated damages, if any, on an unsecured senior
basis, jointly and severally, by all of the Company's subsidiaries (after giving
effect to the Reorganization) listed on Schedule A hereto (collectively, the
"GUARANTORS" and, together with the Note Issuers, the "ISSUERS").
At the Closing Date, the Escrow Company will deposit the gross proceeds
from the offering of the Offered Securities, and the Company will deposit such
additional amounts equal to accrued and unpaid interest on the Offered
Securities to but not including the 120th day after the issuance of the Offered
Securities (expected to be August 28, 2004), in an escrow account (the "ESCROW
ACCOUNT") pursuant to an Escrow Agreement to be dated the Closing Date (the
"ESCROW AGREEMENT") between the Escrow Company and U.S. Bank National
Association, as Escrow Agent (the "ESCROW AGENT"). The funds in the Escrow
Account will be used on or before August 28, 2004 to consummate the
Reorganization on the terms described in the Offering Circular or, in the event
of a Special Mandatory Redemption (as defined in the Offering Circular),
released to finance the purchase price of the Offered Securities in connection
therewith.
The holders of the Offered Securities will be entitled to the benefits of a
Registration Rights Agreement dated as of the Closing Date among the Issuers and
the Purchasers (the "REGISTRATION RIGHTS Agreement"), pursuant to which the
Company and the Guarantors agree to file a registration statement with the
Securities Exchange Commission (the "COMMISSION") registering the resale of the
Offered Securities under the Securities Act.
This Agreement, the Offered Securities, the Guarantees, the Indenture, the
Registration Rights Agreement and the Escrow Agreement are hereinafter referred
to collectively as the Transaction Documents.
The Issuers hereby agree with the several Purchasers as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE ISSUERS. The Issuers, jointly
and severally, represent and warrant to, and agree with, the several Purchasers
that:
(a) A preliminary offering circular and an offering circular relating
to the Offered Securities to be offered by the Purchasers have been
prepared by the Issuers. Such preliminary offering circular (the
"PRELIMINARY OFFERING CIRCULAR") and offering circular (the "OFFERING
CIRCULAR"), as supplemented as of the date of this Agreement, 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 or
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 Issuers by any
Purchaser through Credit Suisse First Boston LLC ("CSFB") 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 Escrow Company (i) has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware and (ii) as of the date hereof does not have, and as of the
Closing Date will not have, any operations, subsidiaries, assets,
indebtedness, liabilities or obligations, other than the Offered Securities
and any obligations pursuant to this Agreement and the other Transaction
Documents.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) 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, except where the
failure so to qualify or to be in good standing would not 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 ("Material Adverse Effect").
(d) Each subsidiary of the Company has been duly incorporated and is
an 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 subsidiary of 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, except where the failure so to
qualify or to be in good standing would not have a Material Adverse Effect;
all of 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 the capital stock of each subsidiary owned by the
Company, directly or through subsidiaries, is owned, and after giving
effect to the Reorganization, will be owned, free from liens, encumbrances
and defects.
(e) After consummation of the Reorganization, the Company will have
no subsidiaries other than the entities listed on Schedule A attached
hereto.
(f) After consummation of the Reorganization, there will not be any
outstanding subscriptions, rights, warrants, calls, commitments of sale or
options to acquire, or instruments convertible into or exchangeable for,
any capital stock or other equity interest of Escrow Company, the Company
or any of the Company's subsidiaries, except for the incentive stock option
plan of the Company as adopted in connection with the Reorganization.
(g) The Indenture has been duly authorized by the Escrow Company; the
Offered Securities have been duly authorized by the Escrow Company; and
when the Offered Securities are delivered and paid for pursuant to this
Agreement on the Closing
Date and the Indenture will have been duly executed and delivered, such
Offered Securities will have been duly executed, authenticated, issued and
delivered and will conform to the description thereof contained in the
Offering Document and on the Closing Date, the Indenture and such Offered
Securities will constitute the valid and legally binding obligations of the
Escrow Company, enforceable in accordance with their terms, subject to (i)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights, (ii) to general equity principles and (iii) public policy
considerations.
(h) The Indenture has been duly authorized, executed and delivered by
the Company and the Guarantors; the Offered Securities have been duly
authorized by the Company; and upon consummation of the Merger, the
Indenture will constitute the valid and legally binding obligation of the
Company and each of the Guarantors, enforceable against the Company and
each of the Guarantors in accordance with its terms, subject to (i)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights, (ii) to general equity principles and (iii) public policy
considerations. Upon consummation of the Merger, the Offered Securities
will constitute the valid and legally binding obligation of the Company,
enforceable against the Company in accordance with their terms, subject to
(i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights, (ii) to general equity principles and (iii) public
policy considerations.
(i) On the Closing Date, the Indenture will conform in all material
respects to the requirements of the Trust Indenture Act of 1939, as amended
(the "TIA" or "TRUST INDENTURE ACT"), and the rules and regulations of the
Commission applicable to an indenture which is qualified thereunder.
(j) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Issuers (including
after giving effect to the Reorganization) and any person that would give
rise to a valid claim against the Issuers or any Purchaser for a brokerage
commission, finder's fee or other like payment.
(k) Except as disclosed in the Offering Document, no consent,
approval, authorization, or order of, or filing with, any governmental
agency or body or any court is required for (including after giving effect
to the Reorganization) (i) the consummation of the transactions
contemplated by the Transaction Documents and (ii) the consummation by the
Escrow Company or the Company of the transactions described in the Offering
Document under the captions "The Reorganization" or "Use of Proceeds."
(l) Except as disclosed in the Offering Document, none of the Issuers
is in violation of its respective charter or by-laws or after giving effect
to the Reorganization will be in default in the performance of any
obligation, agreement, covenant or condition contained in any indenture,
loan agreement, mortgage, lease or other agreement or instrument that is
material to the Company and its subsidiaries, taken as a whole, to which
the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or their respective property is bound.
(m) The (i) execution, delivery and performance of each of the
Transaction Documents by each of the Issuers (to the extent a party
thereto) and the issuance and sale of the Offered Securities and compliance
with the terms and provisions thereof and (ii) the consummation by the
Escrow Company or the Company of the transactions described in the Offering
Document under the captions "The Reorganization" and "Use of Proceeds" will
not result in a breach or violation of any of the terms and provisions of,
or constitute a default under (including after giving effect to the
Reorganization), (x) any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Escrow Company, the Company or any subsidiary of the
Company or any of their respective properties, or any agreement or
instrument to which the Escrow Company, the Company or any such subsidiary
is a party or by which the Escrow Company, the Company or any such
subsidiary is bound or to which any of the properties of the Escrow
Company, the Company or any such subsidiary is subject, (y) the
Communications Act of 1934, as amended (the "Communications Act"), and the
rules, regulations and policies of the Federal Communications Commission
(the "FCC") or (z) the charter or by-laws of the Escrow Company, the
Company or any such subsidiary.
(n) This Agreement has been duly authorized, executed and delivered
by each of the Issuers.
(o) The Registration Rights Agreement has been duly authorized by
each of the Issuers and, on the Closing Date, will be executed and
delivered by each of the Issuers. When the Registration Rights agreement
has been duly executed and delivered, the Registration Rights Agreement
will be a valid and legally binding agreement of each of the Issuers,
enforceable against each of the Issuers in accordance with its terms,
subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights, (ii) to general equity principles and (iii)
public policy considerations.
(p) Each of the Issuers has all requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement and each of the other Transaction Documents to which it is, or
will become, a party and to consummate the transactions contemplated hereby
and thereby, including, without limitation, the corporate power and
authority to issue, sell and deliver the Offered Securities and to issue
and deliver the related Guarantees as provided herein and therein.
(q) The Escrow Agreement has been duly authorized by the Escrow
Company and the Company, and on the Closing Date will be duly executed and
delivered by the Escrow Company and the Company. When the Escrow Agreement
has been duly executed and delivered, the Escrow Agreement will be a valid
and legally binding agreement of the Escrow Company and the Company,
enforceable against the Escrow Company and the Company 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. The Offering Document contains a summary of the terms of the
Escrow Agreement, that
fairly presents and summarizes in all material respects the terms of the
Escrow Agreement.
(r) The Guarantees of the Offered Securities have been duly and
validly authorized for issuance by each of the Guarantors and, upon
consummation of the Merger, when executed and delivered in accordance with
the terms of the Indenture and when the Offered Securities have been issued
and authenticated in accordance with the terms of the Indenture, will be
the valid and binding obligations of each of the Guarantors, enforceable
against each of them in accordance with its terms subject to (i)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights, (ii) to general equity principles and (iii) public policy
considerations.
(s) On the Closing Date, the Exchange Notes will have been duly and
validly authorized for issuance by the Company and, when the Exchange Notes
are issued, executed and authenticated in accordance with the terms of the
Exchange Offer and the Indenture, the Exchange Notes will be the valid and
binding obligations of the Company 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.
(t) On the Closing Date, the Guarantees to be endorsed on the
Exchange Notes by each Guarantor have been duly authorized by such
Guarantor; and, when issued, will have been duly executed and delivered by
each such Guarantor and will conform to the description thereof in the
Offering Document. When the Exchange Notes have been issued, executed and
authenticated in accordance with the terms of the Exchange Offer and the
Indenture, the Guarantee of each Guarantor endorsed thereon will constitute
valid and legally binding obligations of such Guarantor, 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
(u) The Agreement of Merger of the Escrow Company with and into
Holding Company and the Agreement of Merger of Holding Company with and
into the Company (collectively, the "MERGER AGREEMENTS"), will be, as of
the Closing Date, duly and validly authorized, executed and delivered by
each of the parties thereto and will be, as of the Closing Date, a valid
and binding agreement of each of the parties thereto, enforceable against
each of them in accordance with their terms subject to (i) the conditions
stated therein and (ii) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(v) Except as disclosed in the Offering Document, the Company and its
subsidiaries have, and after giving effect to the Reorganization will have,
good and marketable title to all real properties and all other properties
and assets owned by 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, and after giving effect to the Reorganization will 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.
(w) The Company and its subsidiaries possess, and after giving effect
to the Reorganization will possess, adequate certificates, authorities or
permits issued by appropriate governmental agencies or bodies necessary to
conduct the business now operated by them and have not received any notice
of proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect.
(x) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
would individually or in the aggregate have a Material Adverse Effect.
(y) Except as disclosed in the Offering Document, the Company and its
subsidiaries own, possess or can acquire on reasonable terms, and after
giving effect to the Reorganization will own, possess or be able to 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 them, or presently
employed by 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.
(z) Except as disclosed in the Offering Document, neither the Company
nor any of its subsidiaries is in violation of any statute, any 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; and
the Company is not aware of any pending investigation which might lead to
such a claim.
(aa) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the Escrow
Company, the Company, any of its subsidiaries or any of their respective
properties that (i), if determined adversely to the Escrow Company, the
Company or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect, (ii) challenge in any respect or seeks to
delay or prevent the issuance and sale of the Offered Securities, the
Reorganization or the Merger, or (iii) would materially and adversely
affect the ability of the Escrow Company
or the Company to perform each of their respective obligations under the
Transaction 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 Escrow Company or the Company's
knowledge, contemplated.
(bb) (i) D&T, who have audited certain financial statements of the
Company and its consolidated subsidiaries included in the Offering
Document, are and (ii) KPMG, during the period covered by their report
included in the Offering Document through the date of such report, were,
independent auditors with respect to the Company and its consolidated
subsidiaries in each case within the meaning of Rule 101 of the Code of
Professional Conduct of the American Institute of Certified Public
Accountants and its interpretations and rulings thereunder and, at all
times relevant to the preparation of the historical financial statements,
D&T and KPMG were such independent certified public accountants. 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, except as otherwise disclosed in the Offering Document,
such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied on a
consistent basis; the assumptions used in preparing the pro forma financial
statements included in the Offering Document provide a reasonable basis for
presenting the significant effects directly attributable to the
transactions or events described therein including without limitation, the
Reorganization; the related pro forma adjustments give appropriate effect
to those assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical financial
statement amounts.
(cc) Except as disclosed in the Offering Document, 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 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.
(dd) None of the Issuers is, or after giving effect to the issuance
and sale of the Offered Securities and the Reorganization and applying the
net proceeds as described in the Offering Document under the caption "Use
of Proceeds" will be, 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 (the
"INVESTMENT COMPANY ACT") ; and none of the Issuers is, or after giving
effect to the issuance and sale of the Offered Securities and the
Reorganization and applying the net proceeds as described in the Offering
Document under the caption "Use of Proceeds" will be, an "investment
company" as defined in the Investment Company Act.
(ee) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities are listed
on any national securities
exchange registered under Section 6 of the United States Securities
Exchange Act of 1934 ("EXCHANGE ACT") or quoted in a U.S. automated
inter-dealer quotation system.
(ff) No registration under the Securities Act of the Offered
Securities or the Guarantees is required for the sale of the Offered
Securities and the Guarantees to the Purchasers as contemplated hereby or
for the Exempt Resales assuming the accuracy of the Purchasers'
representations in Section 4 hereof.
(gg) None of the Issuers, nor any of their respective affiliates, nor
any person acting on their respective behalves (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 the Offered Securities or (ii) has offered or will
offer or sell 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 ("REGULATION S")
under the Securities Act, by means of any directed selling efforts within
the meaning of Rule 902(c) of Regulation S. Each of the Issuers, their
affiliates and any person acting on their respective behalves have complied
and will comply with the offering restrictions requirement of Regulation S.
None of the Issuers have entered and will enter into any contractual
arrangement with respect to the distribution of the Offered Securities
except for this Agreement.
(hh) None of the Issuers nor any agent thereof acting on the behalf of
them has taken, and none of them will take, any action that might cause
this Agreement or the issuance or sale of the Offered Securities to violate
Regulation T, Regulation U or Regulation X of the Board of Governors of the
Federal Reserve System.
(ii) The Company, the Guarantors and each of their respective
subsidiaries carry, or are covered by, insurance in such amounts and
covering such risks as is adequate for the conduct of their respective
businesses and the value of their respective properties and as is customary
for companies engaged in similar businesses in similar industries.
(jj) There are no contracts, agreements or understandings between any
Issuer and any person granting such person the right to require any Issuer
to file a registration statement under the Securities Act with respect to
any securities of any Issuer, except with respect to the common stock of
the Company to be issued in connection with the Reorganization, or to
require any Issuer to include such securities with the Offered Securities
and the Guarantees registered pursuant to any Registration Statement.
(kk) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Securities
Act (i) has imposed (or has informed the Company or any Guarantor that it
is considering imposing) any condition (financial or otherwise) on the
Company's or any Guarantor's retaining any rating assigned to the Company
or any Guarantor, any securities of the Company or any Guarantor or (ii)
has indicated to the Company or any Guarantor that it is considering (a)
the downgrading, suspension, or withdrawal of, or any review for a possible
change that does not indicate the direction of the possible change in, any
rating so assigned or (b) any change in the outlook for any rating of the
Company, any Guarantor or any securities of the Company or any Guarantor.
(ll) No form of general solicitation or general advertising (as
defined in Regulation D under the Securities Act) was used by any Issuer or
any of their respective representatives (other than the Purchasers, as to
whom the Issuers make no representation) in connection with the offer and
sale of the Offered Securities contemplated hereby, including, but, not
limited to, articles, notices or other communications published in any
newspaper, magazine, or similar medium or broadcast over television or
radio, or any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising. No securities of the same
class as the Offered Securities have been issued and sold by the Note
Issuers within the six-month period immediately prior to the date hereof.
(mm) None of the Issuers nor any of their respective affiliates or any
person acting on their behalf (other than the Purchasers, as to whom the
Issuers make no representation) has engaged or will engage in any directed
selling efforts within the meaning of Regulation S with respect to the
Offered Securities or the Guarantees.
(nn) The Offered Securities offered and sold in reliance on Regulation
S have been offered and will be offered and sold only in offshore
transactions.
(oo) The sale of the Offered Securities pursuant to Regulation S is
not part of a plan or scheme to evade the registration provisions of the
Securities Act.
(pp) None of the Issuers, nor any director, officer, agent, employee
or other person associated with or acting on behalf of any Issuer, has used
any corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; made any direct or
indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of any provision
of the Foreign Corrupt Practices Act of 1977; or made any unlawful bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(qq) The Company is in compliance in all material respects with all
presently applicable provisions of ERISA; no "reportable event" (as defined
in ERISA), has occurred with respect to any "pension plan" (as defined in
ERISA), for which the Company would have any liability; the Company has not
incurred and does not expect to incur liability under (i) Title IV of ERISA
with respect to termination of, or withdrawal from, any "pension plan" or
(ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the
"CODE"); and each "pension plan" for which the Company would have any
liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which would cause the loss of such
qualification.
(rr) The Company and each Guarantor (i) makes and keeps accurate books
and records and (ii) maintains internal accounting controls that provide
reasonable assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain
accountability for its assets, (C) access to its assets is permitted only
in accordance with management's authorization and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals.
(ss) The Company and the Guarantors have filed all federal, state and
local income and franchise tax returns required to be filed through the
date hereof, except insofar as the failure to file such returns would not
have a Material Adverse Effect and have paid all taxes due thereon and
except for such taxes, if any, as are being contested in good faith and as
to which adequate reserves have been provided, and no tax deficiency has
been determined adversely to the Company, the Guarantors or any of their
respective subsidiaries which has had (nor does the Company or the
Guarantors have any knowledge of any tax deficiency which, if determined
adversely to the Company, the Guarantors or any of their respective
subsidiaries, would have) individually or in the aggregate, a Material
Adverse Effect on the Company, the Guarantors and their respective
subsidiaries.
(tt) Prior to the date hereof, neither the Company nor any of its
affiliates has taken any action which is designed to or that has
constituted or that might have been expected to cause or result in
stabilization or manipulation of the price of any security of the Company
in connection with the offering of the Offered Securities.
(uu) The Offering Document contains all the information specified in,
and meeting the requirements of, Rule 144A(d)(4) under the Securities Act.
(vv) No relationship, direct or indirect, required to be described
under Item 404 of Regulation S-K exists between or among the Issuers on the
one hand, and the directors, officers or stockholders of any Issuer on the
other hand, that is not described in the Offering Document.
(ww) The market-related and subscriber-related data and estimates
included in the Offering Document are based on or derived from sources
which the Company believes to be accurate and reliable.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. The Escrow Company
will deliver against payment of the purchase price the Offered Securities in the
form of one or more permanent global Securities in definitive form (the "GLOBAL
SECURITIES") deposited with the Trustee 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 CSFB on April 30, 2004, or at such other time
not later than seven full business days thereafter as CSFB and the Company
determine, such time being herein referred to as the "CLOSING DATE",
against delivery to the Trustee as custodian for DTC of the Global Securities
representing all of the Securities. The Global Securities will be made available
for checking at the above office of O'Melveny & ▇▇▇▇▇ LLP, Times Square Tower, ▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at least 24 hours prior to the Closing
Date.
As compensation for the Purchasers' commitments, the Issuers will pay to
the Purchasers for their proportionate accounts the sum of 3% of the aggregate
principal amount of the Offered Securities purchased by the Purchasers on the
Closing Date as commissions for sale of the Offered Securities under this
Agreement. Such payment will be made on the Merger Date, with respect to the
Offered Securities purchased on the Closing Date.
4. REPRESENTATIONS BY PURCHASERS; RESALE BY PURCHASERS. (a) Each
Purchaser severally represents and warrants to the Escrow Company and 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 in accordance with Regulation S or pursuant to an exemption
from the registration requirements of the Securities Act. Each Purchaser
severally represents and agrees that it has offered and sold the Offered
Securities and will offer and sell the Offered Securities (i) as part of
their distribution at any time and (ii) otherwise until the later of the
commencement of the offering and the Closing Date, only in accordance with
Rule 144A ("RULE 144A") or Rule 903 under the Securities Act. Accordingly,
neither such Purchaser nor its affiliates, nor any persons acting on its or
their behalf, have engaged or will engage in any directed selling efforts
with respect to the Offered Securities, and such Purchaser, its affiliates
and all persons acting on its or their behalf have complied and will comply
with the offering restrictions requirement of Regulation S. Each Purchaser
severally agrees that, at or prior to confirmation of sale of the Offered
Securities, other than a sale pursuant to Rule 144A, such Purchaser will
have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases the Offered Securities
from it during the restricted period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (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 (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the date of the
commencement of the offering and the closing date, except in either
case in accordance with Regulation S (or Rule 144A if available) under
the Securities Act. Terms used above have the meanings given to them
by 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, but
not limited to (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 expiry of a period of six
months from the closing date, 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 only communicated
or caused to be communicated and will only communicate or cause to be
communicated any invitation or inducement to engage in investment activity
(within the meaning of section 21 of the Financial Services and Markets Act
2000 (the "FSMA")) received by it in connection with the issue or sale of
any Offered Securities in circumstances in which section 21(1) of the FSMA
does not apply to the Escrow Company, the Company or any Guarantor; and
(iii) it has complied and will comply with all applicable provisions of the
FSMA with respect to anything done by it in relation to the Offered
Securities in, from or otherwise involving the United Kingdom
5. CERTAIN AGREEMENTS OF THE ISSUERS. The Issuers each agree with the
several Purchasers that:
(a) The Issuers will advise CSFB promptly of any proposal to amend or
supplement the Offering Document and will not effect such amendment or
supplementation without CSFB'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, the Issuers promptly will notify CSFB of such event and
promptly will prepare, at their own expense, an amendment or supplement
which will correct such statement or omission. Neither CSFB'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 Issuers will furnish to CSFB 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 CSFB requests, and the Issuers will furnish to CSFB on the date hereof
three copies of the Offering Document signed by a duly authorized officer
of the Escrow 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 CSFB (and, upon request, to each of the other 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 Issuers will pay the expenses of printing and distributing to the
Purchasers all such documents.
(c) The Issuers 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 CSFB designates and will continue such qualifications in effect
so long as required for the resale of the Offered Securities by the
Purchasers; PROVIDED that none of the Issuers will be required to qualify
as a foreign corporation or to file a general consent to service of process
in any such state.
(d) During the period of two years after the Closing Date, the
Company will, upon request, furnish to CSFB, each of the other Purchasers
and any holder of the Offered Securities a copy of the restrictions on
transfer applicable to the Offered Securities.
(e) 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.
(f) During the period of two years after the Closing Date, none of
the Issuers will 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.
(g) Each of the Issuers jointly and severally agree to pay all
expenses incidental to the performance of its obligations under the
Transaction Documents, including (i) the fees and expenses of the Trustee
and its professional advisers and the Escrow Agent and its professional
advisers; (ii) all expenses in connection with the execution, issue,
authentication, packaging and initial delivery of the Offered Securities
and, as applicable, the Exchange Securities (as defined in the Registration
Rights Agreement), the preparation and printing of the Transaction
Documents, the Offering Document and amendments and supplements thereto,
and any other document relating to the issuance, offer, sale and delivery
of the Offered Securities and as applicable, the Exchange Securities; (iii)
the cost of listing the Offered Securities and qualifying the
Offered Securities for trading in The Portal(SM) Market ("PORTAL") and any
expenses incidental thereto; (iv) for any expenses (including fees and
disbursements of counsel) incurred in connection with qualification of the
Offered Securities or the Exchange Securities for sale under the laws of
such jurisdictions in the United States and Canada as CSFB designates and
the printing of memoranda relating thereto; (v) for any fees charged by
investment rating agencies for the rating of the Offered Securities or the
Exchange Securities, and (vi) for expenses incurred in distributing
preliminary offering circulars and the Offering Document (including any
amendments and supplements thereto) to the Purchasers. The Issuers agree,
jointly and severally, to pay or reimburse the Purchasers (to the extent
incurred by them) for all travel expenses of the Purchasers and the
Issuers' officers and employees and any other expenses of the Purchasers
and the Issuers in connection with attending or hosting meetings with
prospective purchasers of the Offered Securities from the Purchasers.
(h) In connection with the offering, until CSFB shall have notified
the Note Issuers and the other Purchasers of the completion of the resale
of the Offered Securities, none of the Escrow Company, the Company nor any
of their affiliates has or will, either alone or with one or more other
persons, bid for or purchase for any account in which it or any of its
affiliates has a beneficial interest any 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.
(i) For a period of 90 days after the date of the initial offering of
the Offered Securities by the Purchasers or until a Special Mandatory
Repurchase Date, if any, the Escrow Company and the Company will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under the
Securities Act relating to, any United States dollar-denominated debt
securities issued or guaranteed by any of the Issuers and having a maturity
of more than one year from the date of issue, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of CSFB. 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.
(j) The Escrow Company, the Company and the Guarantors will use the
proceeds from the sale of the Offered Securities in the manner described in
the Offering Document under the caption "Use of Proceeds," unless the
Escrow Company is required redeems the Offered Securities pursuant to a
Special Mandatory Redemption (as defined in the Offering Document).
(k) The Escrow Company will deposit the gross proceeds from the
offering of the Offered Securities and the Company will deposit such
additional funds (which together with the proceeds deposited by the Escrow
Company will equal 100% of the aggregate principal amount of the Offered
Securities plus accrued interest on the Offered
Securities up to but not including the 120th day after the issuance of the
Offered Securities (expected to be August 28, 2004)), in the Escrow Account
and will comply with all their respective agreements set forth in the
Escrow Agreement.
(l) The Issuers will use their best efforts to permit the Offered
Securities to be designated PORTAL securities in accordance with the rules
and regulations adopted by the National Association of Securities Dealers,
Inc. relating to trading in PORTAL and to permit the Offered Securities to
be eligible for clearance and settlement through DTC.
(m) The Issuers agree not to sell, offer for sale or solicit offers
to buy or otherwise negotiate in respect of any security (as defined in the
Securities Act), that would be integrated with the sale of the Offered
Securities in a manner that would require the registration under the
Securities Act of the sale to the Purchasers or the resale of the Offered
Securities.
(n) The Issuers agree to comply with all the terms and conditions of
the Transaction Documents and all agreements set forth in the
representation letter of the Escrow Company to DTC relating to the approval
of the Offered Securities by DTC for "book entry" transfer.
(o) Upon consummation of the Reorganization, the Company will
maintain disclosure controls and procedures (as defined in Rule 15d-15(e)
of the Exchange Act) designed to ensure that information required to be
disclosed by the Company in the reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported in accordance
with the Exchange Act and the rules and regulations thereunder. Upon
consummation of the Reorganization, the Company will carry out evaluations,
under the supervision and with the participation of the Company's
management, of the effectiveness of the design and operation of the
Company's disclosure controls and procedures in accordance with Rule 15d-15
of the Exchange Act.
(p) The Issuers will do and perform all things required or necessary
to be done and performed under this Agreement by them prior to the Closing
Date, and to satisfy all conditions precedent to the Purchasers'
obligations hereunder to purchase 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
Escrow Company, the Company and the Guarantors herein, to the accuracy of the
statements of officers of the Escrow Company, the Company and the Guarantors
made pursuant to the provisions hereof, to the performance by the Escrow
Company, the Company and the Guarantors of their respective obligations
hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of
this Agreement, from each of (i) Deloitte & Touche LLP ("D&T") and (ii)
KPMG LLP ("KPMG"), confirming that they are independent public accountants
within the meaning
of the Securities Act and the applicable published rules and regulations
thereunder ("RULES AND REGULATIONS") and to the effect that:
(i) in their opinion the financial statements examined by
them and included in the Offering Document comply as to form in all
material respects with the applicable accounting requirements of the
Securities Act and the related published Rules and Regulations;
(ii) in the case of D&T only, they have performed the
procedures specified by the American Institute of Certified Public
Accountants for a review of interim financial information as described
in Statement of Auditing Standards No. 100, Interim Financial
Information, on the unaudited financial statements included in the
Offering Document;
(iii) in the case of D&T only, on the basis of the review
referred to in clause (ii) above, a reading of the latest available
interim financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and accounting
matters and other specified procedures, nothing came to their
attention that caused them to believe that:
(A) the unaudited financial statements included in the
Offering Document do not comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the related published Rules and Regulations or
any material modifications should be made to such unaudited
financial statements for them to be in conformity with generally
accepted accounting principles;
(B) at December 31, 2003, there was any change in the
capital stock or any increase in short-term indebtedness or
long-term debt or decrease in consolidated net current assets or
stockholder's equity of the Company and its consolidated
subsidiaries as compared with amounts shown in the audited
September 30, 2003 balance sheet included in the Offering
Document or, for the period from October 1, 2003 to December 31,
2003, there was any decreases compared with the corresponding
period of the previous year, in consolidated revenue, net
operating income, consolidated net income or in the ratio of
earnings to fixed charges, except in all cases for changes,
increases or decreases which the Offering Document disclose have
occurred or may occur or which are described in such letter; and
(iv) in the case of D&T only, for the period subsequent to
December 31, 2003, they have inquired of certain officials of the
Company who have responsibility for financial and accounting matters
whether (A) at the date not more than three business days prior to the
date of this Agreement, there was any change in the capital stock,
increase in short-term debt, long-term debt or any decreases in
consolidated net current assets or stockholders' equity as compared
with amounts shown on the December 31, 2003 unaudited condensed
consolidated balance sheet included in the Offering Document or (B)
for the period from January 1, 2004 to a date not more than three
business days prior to the date of this Agreement, there were any
increases or decreases, as compared to the corresponding period in the
preceding year, in consolidated revenue or in the total or per-share
amounts of income before extraordinary items or of net income. On the
basis of these inquiries and their reading of the Company's minutes,
nothing came to their attention that caused them to believe that there
was any such change, increase or decrease, except for (1) changes,
increases or decreases which the Offering Document discloses have
occurred or may occur and (2) changes, increases or decreases
disclosed in such letter which the Company confirms are not material
to it based on its belief; and
(v) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Offering Document (in each case to the
extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Company and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such records
by analysis or computation) with the results obtained from inquiries,
a reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results.
(b) Subsequent to the execution and delivery of this Agreement,
except as contemplated in connection with the Reorganization, there shall
not have occurred (i) 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 Escrow Company, the Company and
its subsidiaries taken as one enterprise that, in the judgment of a
majority in interest of the Purchasers, including CSFB, 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; (ii)
any downgrading in the rating of any debt securities of the Escrow Company
or the Company 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 of the Company
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating) or
any announcement that the Escrow Company or the Company has been placed on
negative outlook; (iii) any change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange
controls as would, in the judgment of a majority in interest of the
Purchasers including CSFB, be likely to prejudice materially the success of
the proposed issue, sale or distribution of the Offered Securities, whether
in the primary market or in respect of dealings in the secondary market,
(iv) any material suspension or material limitation of trading in
securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange; (v) or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (vi) any banking moratorium declared by U.S.
Federal or New York authorities; (vii) any major
disruption of settlements of securities or clearance services in the United
States or (viii) any attack on, outbreak or escalation of hostilities or
act of terrorism involving the United States or any declaration of war by
Congress or any other national or international calamity or emergency if,
in the judgment of a majority in interest of the Purchasers including CSFB,
the effect of any such attack, outbreak, escalation, act, 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 Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Issuers, that:
(i) Each of the Escrow Company and the Company has been duly
incorporated and is an existing corporation in good standing under the
laws of the State of Delaware, with corporate power and authority to
own its properties and conduct its business as described in the
Offering Document; and each of the Escrow Company 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 subsidiary of the Company has been duly incorporated
and is an 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 subsidiary of 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; all of 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 the capital stock of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(iii) Each of the Issuers has all requisite corporate power and
authority to enter into the Transaction Documents to which it is a
party and each of the Issuers has full power and authority to
authorize, issue and sell the Offered Securities and the Guarantees,
as the case may be, as contemplated by this Agreement;
(iv) The Indenture has been duly and validly authorized,
executed and delivered by Escrow Company, the Company and the
Guarantors; the Offered Securities have been duly authorized,
executed, authenticated, issued and delivered by Escrow Company and
conform to the description thereof contained in the Offering Document;
and the Indenture and the Offered Securities constitute valid and
legally binding obligations of the Escrow Company enforceable in
accordance with their terms, subject to (a) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights, (b)
general equity principles and (c) public policy considerations.
(v) The Indenture conforms in all material respects to the
requirements of the TIA and, the rules and regulations of the
Commission applicable to an indenture which is qualified thereunder.
(vi) This Agreement has been duly and validly authorized,
executed and delivered by each of the Issuers.
(vii) The Registration Rights Agreement has been duly
authorized, executed and delivered by each of the Issuers and is a
valid and legally binding obligation of each of the Issuers,
enforceable against each of the Issuers in accordance with its terms,
subject to (a) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, (b) general equity
principles and (c) public policy considerations.
(viii) The Escrow Agreement has been duly and validly
authorized, executed and delivered by the Escrow Company and the
Company and, assuming due execution by the Escrow Agent, constitutes
the valid and legally binding obligation of the Escrow Company and the
Company, enforceable against the Escrow Company and the Company 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.
(ix) The Guarantees to be endorsed on the Offered Securities
have been duly and validly authorized for issuance by each of the
Guarantors, and upon consummation of the Merger, when executed and
delivered in accordance with the terms of the Indenture, the
Guarantees will constitute a valid and legally binding obligation of
each of the Guarantors, enforceable against each of the Guarantors in
accordance with their terms, subject to (a) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights, (b)
general equity principles and (c) public policy considerations.
(x) The Guarantees to be endorsed on the Exchange Notes by
each Guarantor have been duly authorized by such Guarantor; and, when
issued, will have been duly executed and delivered by each such
Guarantor and will conform to the description thereof contained in the
Offering Document. When the Exchange Notes have been issued, executed
and authenticated in accordance with the terms of the Exchange Offer
and the Indenture, the Guarantee of each Guarantor endorsed thereon
will constitute valid and legally binding obligations of such
Guarantor, enforceable in accordance with its terms subject to (a)
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights, (b) general equity principles and (c)
public policy considerations.
(xi) The Exchange Notes have been duly and validly authorized
for issuance by the Company and, when the Exchange Notes are issued,
executed and authenticated in accordance with the terms of the
Exchange Offer and the Indenture, the Exchange Notes will be the valid
and legally binding obligations of the Company enforceable against it
in accordance with its terms subject to (a) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights, (b)
general equity principles and (c) public policy considerations.
(xii) The Merger Agreements will be, as of the Closing Date,
duly and validly authorized, executed and delivered by each of the
parties thereto and will be, as of the Closing Date, a valid and
binding agreement of each of the parties thereto, enforceable against
each of them in accordance with their terms subject to (i) the
conditions stated therein and (ii) bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
(xiii) None of the Issuers is 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 be an
"investment company" as defined in the Investment Company Act.
(xiv) None of the Issuers is in violation of its respective
charter or by-laws or, except as disclosed in the Offering Document to
the best of their knowledge in default in the performance of any
obligation, agreement, covenant or condition contained in any of the
following (to be listed on an exhibit to the opinion): indenture, loan
agreement, mortgage, lease or other agreement or instrument that is
material to the Company and its subsidiaries, taken as a whole, to
which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries or their respective property is
bound.
(xv) There are no contracts, agreements or understandings
between any Issuer and any person granting such person the right to
require any Issuer to file a registration statement under the
Securities Act with respect to any securities of any Issuer, except
the registration rights agreement with respect to shares of common
stock issued in the Reorganization or to require any Issuer to include
such securities with the Offered Securities and the Guarantees
registered pursuant to any Registration Statement.
(xvi) Except as disclosed in the Offering Document, no consent,
approval, authorization or order of, or filing with, any governmental
agency or body or any court is required to be obtained or made by the
Company for (i) the consummation of the transactions contemplated by
the Transaction Documents and (ii) the consummation by the Escrow
Company and the Company of the transactions described in the Offering
Document under the captions "The Reorganization," or "Use of
Proceeds," except such as may be required under state securities laws
and except for the order of the Commission declaring the
Exchange Offer Registration Statement or the Shelf Registration
Statement effective.
(xvii) There are no pending actions, suits or proceedings
against or affecting the Company, any of its subsidiaries or any of
their respective properties that, (i) if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect, (ii) challenge in any
respect or seek to delay or prevent the issuance and sale of the
Offered Securities, the Reorganization or the Merger, or (iii) would
materially and adversely affect the ability of the Company to perform
its obligations under the Transaction Documents, 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 such
counsel's knowledge, contemplated.
(xviii) The (i) execution, delivery and performance of each of
the Transaction Documents by each of the Issuers (to the extent a
party thereto), and the issuance and sale of the Offered Securities
and compliance with the terms and provisions thereof and (ii) the
consummation by the Escrow Company and the Company of the transactions
described in the Offering Document under the captions "The
Reorganization" and "Use of Proceeds" will not to such counsel's
knowledge result in a breach or violation of any of the terms and
provisions of, or constitute a default under (including after giving
effect to the Reorganization), (x) any statute, any rule, regulation
or order of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Escrow Company, the Company or
any subsidiary of the Company or any of their respective properties,
or any agreement or instrument to which the Escrow Company, the
Company or any such subsidiary is a party or by which the Escrow
Company, the Company or any such subsidiary is bound or to which any
of the properties of the Escrow Company, the Company or any such
subsidiary is subject, or (y) the charter or by-laws of the Escrow
Company, the Company or any such subsidiary.
(xix) It is not necessary in connection with (i) the offer,
sale and delivery of the Offered Securities by the Escrow Company to
the several Purchasers pursuant to this Agreement or (ii) the resales
of the Offered Securities by the several Purchasers in the manner
contemplated by this Agreement, to register the Offered Securities
under the Securities Act or to qualify an indenture in respect thereof
under the Trust Indenture Act.
(xx) The statements contained in the Offering Document under
the caption "Description of Notes" insofar as they purport to
constitute a summary of the terms of the Indenture, the Offered
Securities and the Guarantees and under the captions "Offering
Circular Summary - Recent Developments," "Related Party Transactions,"
"The Reorganization," and "Important United States Federal Tax
Considerations," insofar as they describe the laws and documents
referred therein, are accurate in all material respects.
(xxi) Such counsel have no reason to believe that the Offering
Circular, or any amendment or supplement thereto, as of the date
hereof and as of 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; it being understood that such
counsel need express no opinion as to the financial statements or
other financial data contained in the Offering Circular;
(d) The Purchasers shall have received from O'Melveny & ▇▇▇▇▇ LLP,
counsel for the Purchasers, such opinion or opinions, dated the Closing
Date, with respect to the incorporation of the Issuers, the validity of the
Offered Securities, the Offering Circular, the exemption from registration
for the offer and sale of the Offered Securities by the Escrow Company to
the several Purchasers and the resales by the several Purchasers as
contemplated hereby and other related matters as CSFB may require, and the
Issuers shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(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 each Issuer in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that the representations and warranties of the Issuers in this Agreement
are true and correct, that the Issuers have 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 Escrow Company and the
Company and its subsidiaries taken as a whole except as contemplated in the
Offering Document.
(f) The Purchasers shall have received a letter, dated the Closing
Date, of D&T 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 days prior to the Closing Date for the
purposes of this subsection.
(g) On the Closing Date, each Operative Document will conform, as to
legal matters, in all material respects to the description thereof
contained in the Offering Circular.
(h) As of the Closing Date, the representations and warranties
contained in the Operative Documents will be true and correct in all
material respects.
The Issuers will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFB may in its sole discretion waive on behalf of the Purchasers
compliance with any conditions to the obligations of the Purchasers hereunder.
7. INDEMNIFICATION AND CONTRIBUTION. (a) Each Issuer will, jointly and
severally, indemnify and hold harmless each Purchaser, its officers, partners,
members, directors and each person, if any, who controls such Purchaser within
the meaning of Section 15 of the Securities Act, 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 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, including any
losses, claims, damages or liabilities arising out of or based upon any Issuer's
failure to perform its obligations under Section 5(a) of this Agreement, 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 none of the Issuers will 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 CSFB
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 and provided, further, that with respect to any untrue statement or
alleged untrue statement in or omission or alleged omission from any Preliminary
Offering Circular the foregoing indemnity shall not inure to the benefit of any
Purchaser from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that an
Offering Circular relating to such Offered Securities was to be delivered by
such Purchaser in connection with such purchase and any such loss, claim, damage
or liability of such Purchaser results primarily from the fact that there was
not sent or given to such person, at or prior to the written confirmation of the
sale of such Offered Securities to such person, a copy of the Offering Circular
if the Company had previously furnished copies thereof to such Purchaser.
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless each Issuer, and its respective directors and officers and each
person, if any, who controls such Issuer within the meaning of Section 15
of the Securities Act, against any losses, claims, damages or liabilities
to which such Issuer 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 CSFB specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by such Issuer 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: under the caption "Plan of Distribution" the tenth,
eleventh and twelfth paragraphs; PROVIDED, HOWEVER, that the Purchasers
shall not be liable for any losses, claims, damages or liabilities arising
out of or based upon any Issuer's failure to perform its obligations under
Section 5(a) of this Agreement.
(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 failure to notify the indemnifying party
shall not relieve it from any liability that it may have under subsection
(a) or (b) above except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by
such failure; and PROVIDED FURTHER that the failure to notify the
indemnifying party shall not relieve it from any liability that it may have
to an 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 (i) an unconditional
release of such indemnified party from all liability on any claims that are
the subject matter of such action and (ii) does not include a statement as
to or an admission of fault, culpability or failure to act by or on behalf
of any indemnified party.
(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 Issuers on the one hand and the Purchasers on the
other from the offering of the Offered 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 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 Issuers 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 Issuers bear to the total discounts and
commissions received by the Purchasers from the Issuers 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 Issuers 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 discount, fees and
commissions received by such Purchaser 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 Issuers under this Section shall be in
addition to any liability which the Issuers 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 any Issuer 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 Offered Securities hereunder and the aggregate principal
amount of Offered Securities that such defaulting Purchaser or Purchasers agreed
but failed to purchase does not exceed 10% of the total principal amount of
Offered Securities, CSFB may make arrangements satisfactory to the Escrow
Company and 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 principal amount of Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of Offered Securities and arrangements satisfactory
to CSFB 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
Escrow Company and 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
Issuers or their respective officers and 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 Issuers 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 Issuers shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of the Issuers 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, the Issuers
shall have no obligation to reimburse the Purchasers for any out-of-pocket
expenses (including fees and disbursements of counsel) 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 telegraphed and confirmed to the
Purchasers, c/o Credit Suisse First Boston LLC, Eleven Madison Avenue, New York,
N.Y. 10010-3629, Attention: Transactions Advisory Group, or, if sent to the
Issuers, will be mailed, delivered or telegraphed and confirmed to it at iPCS,
Inc., ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Chief
Financial Officer with a copy to Mayer, Brown, ▇▇▇▇ & Maw LLP, ▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. Wild;
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 inure 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 and
third sentences of Section 5(b) hereof against the Issuers as if such holders
were parties thereto.
12. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. 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 Issuers hereby submit 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.
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 among the Issuers and the several
Purchasers in accordance with its terms.
Very truly yours,
iPCS Escrow Company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President, Chief Executive Officer and
Secretary
iPCS, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Restructuring Officer and Secretary
iPCS Equipment, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Restructuring Officer and Secretary
iPCS Wireless, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Restructuring Officer and Secretary:
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON LLC
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By CREDIT SUISSE FIRST BOSTON LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
SCHEDULE A
iPCS Wireless, Inc.
iPCS Equipment, Inc.
SCHEDULE B
PRINCIPAL AMOUNT OF
MANAGER OFFERED SECURITIES
------- -------------------
Credit Suisse First Boston LLC......................... $ 99,000,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc................................ $ 66,000,000
-------------------
Total.............................. $ 165,000,000
===================
