Exhibit 10.1
OMNIPOINT CORPORATION
11 5/8% Series A Senior Notes due 2006
PURCHASE AGREEMENT
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November 21, 1996
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX, SACHS & CO.
XXXXXXXXXX SECURITIES
BA SECURITIES, INC.
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Subject to the terms and conditions herein contained, Omnipoint
Corporation, a Delaware corporation (the "Company"), proposes to issue and sell
to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation ("DLJ"), Xxxxxxx, Sachs &
Co., Xxxxxxxxxx Securities and BA Securities, Inc. (together with DLJ, the
"Initial Purchasers"), an aggregate of $200,000,000 principal amount of 11_%
Series A Senior Notes due 2006 (the "Notes"). The Notes are to be issued
pursuant to the provisions of an Indenture (the "Indenture"), to be dated as of
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December 2, 1996, by and between the Company and Marine Midland Bank, a New York
banking corporation and trust company, as trustee (the "Trustee"). In connection
with the closing contemplated by this Agreement, the Company will enter into the
Registration Rights Agreement (as hereinafter defined). The Notes and the
Indenture are more fully described in the Offering Memorandum (as hereinafter
defined). Capitalized terms used herein without definition shall have the
respective meanings ascribed thereto in the Offering Memorandum.
1. Delivery and Payment. Delivery to you of and payment for the Notes shall
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be made at 10:00 A.M., New York City time, on December 2, 1996 (such time and
date being referred to as the "Closing Date") at the offices of Skadden, Arps,
Slate, Xxxxxxx & Xxxx, 0000 Xxx Xxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X., 00000 or
such other place as DLJ shall reasonably designate. The Closing Date and the
location of delivery of, and the form of payment for the Notes may be varied by
agreement between DLJ and the Company.
One or more of the Notes in definitive form, registered in the name of Cede
and Co., as nominee of The Depository Trust Company ("DTC"), or such other names
as you shall request in writing not later than one full business day prior to
the Closing Date, having an aggregate principal amount corresponding to the
aggregate principal amount of Notes resold pursuant to Rule 144A under the
Securities Act of 1933, as amended, and the rules and regulations promulgated by
the Securities and Exchange Commission (the "Commission") thereunder (the
"Act"), as such rule may be amended from time to time ("Rule 144A"), to
qualified institutional buyers ("QIBs") within the meaning of Rule 144A
(collectively, the "Global Notes"), and one or more Notes in definitive form
shall be registered in such names and issued in such denominations as you shall
request in writing not later than one business day prior to the Closing Date,
having an aggregate principal amount corresponding to the aggregate principal
amount of the Notes sold to Institutional Accredited Investors (as defined
herein) (collectively, the "Certificated Notes"), shall be delivered by the
Company to you on the Closing Date with any transfer taxes payable upon initial
issuance thereof duly paid by the Company, for your respective accounts against
payment of the Purchase Price (as hereinafter defined) by wire transfer of same
day funds to such bank accounts as the Company shall designate at least two
business days prior to the Closing Date. At least one of the bank accounts (the
"Escrow Account") will be created pursuant to an Escrow Agreement (the "Escrow
Agreement"), to be dated the Closing Date, between the
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Company and The Chase Manhattan Bank, as escrow agent, substantially in the form
of Exhibit B hereto. The Global Notes and Certificated Notes in definitive form
shall be made available to you at the offices of DLJ (or at such other place as
shall be acceptable to you) for inspection not later than 9:30 A.M., New York
City time, on the business day next preceding the Closing Date.
2. Offering of the Notes and the Initial Purchasers' Representations.
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(a) You have advised the Company that it is your intention, as promptly
as you deem appropriate after the Company shall have furnished you with copies
of the Offering Memorandum, to resell the Notes pursuant to the procedures and
upon the terms set forth in the Offering Memorandum.
(b) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that it:
(i) is not acquiring the Notes with a view to any
distribution thereof or with any present intention of offering or
selling any of the Notes in a transaction that would violate the Act
or the securities laws of any state of the United States or any other
applicable jurisdiction;
(ii) will solicit offers for Notes only from, and will offer
Notes only to, persons that it reasonably believes are (y) QIBs in
transactions meeting the requirements of Rule 144A, or (z) other
institutional "accredited investors" (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Act ("Institutional Accredited
Investors"));
(iii) will offer and sell the Notes only (y) to persons who it
reasonably believes to be QIBs or (z) to institutions which it
reasonably believes are Institutional Accredited Investors that
execute and deliver a letter containing certain representations and
agreements in the form attached as Annex A to the Offering
Memorandum;
(iv) is an Institutional Accredited Investor with such
knowledge and experience in financial and business matters as are
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necessary in order to evaluate the merits and risks of an investment
in the Notes;
(v) has not and will not offer or sell the Notes by any form
of general solicitation or general advertising, including but not
limited to, the methods described in Rule 502(c) under the Act; and
(vi) will, during its initial distribution of the Notes, unless
prohibited by applicable law, furnish to each person to whom it
offers any Notes a copy of the preliminary offering memorandum (as
defined) or inform each such person that a copy of such preliminary
offering memorandum is available upon request and will, during its
initial distribution of the Notes, furnish to each person to whom it
sells any Notes a copy of the Offering Memorandum (as then amended or
supplemented).
3. Agreements to Sell and Purchase. On the basis of the representations and
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warranties contained in this Agreement, and subject to the terms and conditions
contained in this Agreement, the Company agrees to issue and sell to the Initial
Purchasers, and each Initial Purchaser agrees, severally and not jointly, to
purchase from the Company, Notes in the respective principal amount set forth
opposite the name of such Initial Purchaser in Schedule I hereto, plus such
amount as they may individually become obligated to purchase pursuant to Section
8 hereof, at a purchase price per Security equal to the percentage of the
principal amount thereof set forth in the table on the cover page of the
Offering Memorandum under the heading "Proceeds to the Company" (the "Purchase
Price"). The portion of the Purchase Price so set forth in the Offering
Memorandum will be paid into the Escrow Account.
The Notes will be offered and sold to you without being registered under
the Act in reliance on an exemption therefrom. The Company has prepared a
preliminary offering memorandum dated November 20, 1996 (such preliminary
offering memorandum is referred to herein as the "preliminary offering
memorandum"), and an offering memorandum dated November 21, 1996 (such offering
memorandum, in the form first furnished to the Initial Purchasers for use in
connection with the offering of the Notes, is referred to herein as the
"Offering Memorandum"), setting forth information regarding the Company and the
Notes.
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The Company hereby confirms that it has authorized the use of the preliminary
offering memorandum and the Offering Memorandum in connection with the offering
and resale of the Notes.
Holders (including subsequent transferees) of the Notes will have the
registration rights set forth in the Registration Rights Agreement (the
"Registration Rights Agreement"), to be dated the Closing Date, in substantially
the form of Exhibit B hereto, for so long as such Notes constitute "Registrable
Securities" (as defined in the Registration Rights Agreement). Pursuant to the
Registration Rights Agreement, the Company will agree to file with the
Commission under the circumstances set forth therein (i) a registration
statement under the Act (the "Exchange Offer Registration Statement"),
registering an issue of senior notes identical in all material respects to the
Notes (the "Exchange Notes"), to be offered in exchange for the Notes (the
"Exchange Offer"), or (ii), under certain circumstances, a registration
statement pursuant to Rule 415 under the Act (the "Shelf Registration Statement"
and collectively, with the Exchange Offer Registration Statement, the
"Registration Statements").
4. Agreements of the Company. The Company agrees with each of you that:
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(a) It will advise you promptly and, if requested by you, confirm such
advice in writing, of the happening of any event during the period as in your
judgment you are required to deliver an Offering Memorandum in connection with
sales of the Notes by you which makes any statement of a material fact made in
the Offering Memorandum untrue or which requires the making of any additions to
or changes in the Offering Memorandum (as amended or supplemented from time to
time) in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(b) It will notify you promptly of (i) the receipt of any comments from
any state securities commission or any other regulatory authority that relate to
the preliminary offering memorandum or the Offering Memorandum, (ii) the
suspension of qualification of the Notes for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purpose by any state
securities commission or any other regulatory authority. The Company shall use
its best efforts to prevent the issuance of any stop order or order suspending
the qualification or exemption of the Notes under any state securities or Blue
Sky laws, and, if at any time any
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state securities commission or any other regulatory authority shall issue an
order suspending the qualification or exemption of the Notes under any state
securities or Blue Sky laws, the Company shall use its best efforts to obtain
the withdrawal or lifting of such order at the earliest possible time.
(c) Promptly after the execution of this Agreement, and from time to time
thereafter for such period as in your judgment the Offering Memorandum is
required to be delivered in connection with sales of the Notes by you, it will
furnish to you, without charge, as many copies of the Offering Memorandum (and
of any amendment or supplement to the Offering Memorandum) as you may reasonably
request.
(d) If, during such period as in your judgment you are required to
deliver the Offering Memorandum in connection with sales of the Notes by you,
any event shall occur as a result of which it becomes necessary to amend or
supplement the Offering Memorandum in order to make the statements therein, in
light of the circumstances existing as of the date the Offering Memorandum is
delivered to a purchaser, not misleading, or if it is necessary to amend or
supplement the Offering Memorandum so that the statements in the Offering
Memorandum, as so amended or supplemented, will not, in light of the
circumstances existing as of the date the Offering Memorandum is so delivered,
be misleading, or so that the Offering Memorandum will comply with applicable
law, it will so amend or supplement the Offering Memorandum and will furnish to
you without charge such number of copies thereof as you may reasonably request.
(e) Whether or not the transactions contemplated hereby are consummated
or this Agreement is terminated, it will pay and be responsible for all costs,
expenses, fees and taxes incurred in connection with or incident to (i) the
printing, filing, processing and distribution and delivery of the Offering
Memorandum, each preliminary offering memorandum and all amendments and
supplements thereto, (ii) the printing, processing, execution, distribution and
delivery of this Agreement, the Indenture, any memoranda describing state
securities or Blue Sky laws and all other agreements, memoranda, correspondence
and other documents printed, distributed and delivered in connection with the
offering of the Notes, (iii) the registration or qualification of the Notes for
offer and sale under the securities or Blue Sky laws of the jurisdictions
referred to in paragraph (h), below (including, in each case, the reasonable
fees and disbursements of counsel relating to such
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registration or qualification and memoranda relating thereto and any filing fees
in connection therewith), (iv) furnishing such copies of the preliminary
offering memorandum and the Offering Memorandum, all amendments and supplements
to any of them as may be reasonably requested by the Initial Purchasers, (v) the
inclusion of the Notes on the National Association of Securities Dealers, Inc.
(the "NASD") Private Offerings, Resales and Trading through Automated Linkages
("PORTAL") and the approval of the Notes by DTC for "book-entry" transfer, (vi)
the rating of the Notes by investment rating agencies and (vii) the performance
by the Company of its other obligations under this Agreement, including (without
limitation) the fees of the Trustee, the cost of its personnel and other
internal costs, the cost of printing and engraving the certificates representing
the Notes and all expenses and taxes incident to the sale and delivery of the
Notes to the Initial Purchasers.
(f) It will furnish to each Initial Purchaser, without charge, two (2)
signed copies (plus one additional signed copy to your legal counsel) of the
Registration Statements as first filed with the Commission and of each amendment
or supplement to it, including each post-effective amendment and all exhibits
filed therewith.
(g) It will not make any amendment or supplement to any preliminary
offering memorandum or the Offering Memorandum, of which you shall not
previously have been advised and provided a copy within two business days prior
to the first use thereof (or such reasonable amount of time as is necessitated
by the exigency giving rise to the need for such amendment or supplement), or to
which you shall object; and it will prepare and provide you with, promptly upon
your request, any amendment or supplement to the Offering Memorandum which may
be necessary or advisable in connection with the resale of the Notes by you.
(h) It will cooperate with you and your counsel in connection with the
registration or qualification of the Notes for offer and sale to and by the
Initial Purchasers under the state securities or Blue Sky laws of such
jurisdictions as you may request. The Company will continue such qualification
in effect so long as required by law for distribution of the Notes (provided,
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that the Company shall not be obligated to qualify as a foreign corporation in
any jurisdiction in which it is not so qualified or to take any action that
would subject it to taxation or to general consent to service of process in any
jurisdiction in which it is not now so subject).
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(i) For so long as and at any time that it is not subject to Section 13
or 15(d) of the Securities Exchange Act of 1934 and the Commission's rules and
regulations thereunder (the "Exchange Act"), the Company, upon request of any
holder of the Notes, will furnish to such holder, and to any prospective
purchaser or purchasers of the Notes designated by such holder, information
satisfying the requirements of subsection (d)(4)(i) of Rule 144A under the Act;
provided, however, that the Company's obligations under this Section 4(i) shall
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terminate upon the earlier of (i) the date the Exchange Offer is concluded and
the exchange of the Exchange Notes for the Notes tendered therein is consummated
or (ii) the date the Shelf Registration Statement is declared effective by the
Commission; provided further that, notwithstanding the foregoing proviso, the
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Company shall be obligated to deliver, upon request, any information required by
Rule 144A(d)(4) under the Act to prospective purchasers of the Notes during any
period during which, pursuant to the Registration Rights Agreement, the Shelf
Registration Statement is required to be effective, but such effectiveness has
been suspended or revoked for any reason.
(j) It will, so long as any of the Notes are outstanding, deliver to the
Initial Purchasers, without charge, a copy of each report or such other publicly
available information furnished to holders of the Notes, or filed with the
Commission, whether or not required by law or pursuant to the Indenture, and
such other publicly available information concerning the Company and its
subsidiaries (the "Subsidiaries") as you may reasonably request, at the same
time as such reports or other information are furnished to such holders.
(k) It will not voluntarily claim, and will actively resist any attempts
to claim, the benefit of any usury laws against the holders of the Notes.
(l) It will use the proceeds from the sale of the Notes in the manner
described in the Offering Memorandum under the caption "Use of Proceeds."
(m) It will cooperate with you to cause the Notes to be designated as
eligible for trading through PORTAL in accordance with the rules and regulations
of the NASD.
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(n) It will not, and will ensure that no affiliate (as such term is
defined in the Commission's Rule 501(b) under the Act) of the Company will
offer, sell or solicit offers to buy or otherwise negotiate in respect of any
"security" (as defined in the Act) which could be integrated with the offer and
sale of the Notes in a manner that would require the registration of the Notes
under the Act.
(o) Except in connection with the Exchange Offer or the filing of the
Shelf Registration Statement, as the case may be, it will not, and will not
authorize or knowingly permit any person acting on its behalf to, solicit any
offer to buy or offer to sell the Notes by means of any form of general
solicitation or general advertising (as such terms are used in Regulation D
under the Act), or in any manner involving a public offering within the meaning
of Section 4(2) of the Act.
(p) It will cause each Security to bear the following legend until such
legend shall no longer be necessary or advisable because the Notes are no longer
subject to the restrictions on transfer described therein:
"THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE NOTE
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR ANY APPLICABLE EXEMPTION THEREFROM.
EACH PURCHASER OF THE NOTE EVIDENCED HEREBY IS NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE NOTE
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH NOTE
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
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REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A
FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER
THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION
OF COUNSEL IF THE COMPANY SO REQUESTS) (2) TO THE COMPANY OR (3) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE
WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE NOTE
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
(q) It will use its best efforts to do and perform all things required to
be done and performed under this Agreement by it prior to or after the Closing
Date and to satisfy all conditions precedent to the delivery of the Notes.
5. Representations and Warranties. The Company represents and warrants to
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each of you that:
(a) Each of the preliminary offering memorandum and the Offering
Memorandum, as of its date, contains all the information that, if requested by a
prospective purchaser of the Notes, would be required to be provided pursuant to
Rule 144A(d)(4) under the Act. The Offering Memorandum does not, and at the
Closing Date will not, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, except that the representations and warranties contained
in this paragraph (a) shall not apply to statements in or omissions from the
preliminary offering memorandum or the Offering Memorandum (or any supplement or
amendment to them), made in reliance upon and in conformity with information
relating to the
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Initial Purchasers furnished to the Company in writing by or on behalf of the
Initial Purchasers by you expressly for use therein. The Company acknowledges
for all purposes under this Agreement (including this paragraph and Section 6
hereof and legal opinions) that the statements set forth in the third paragraph
(first four sentences) and fourth paragraph (third sentence), under the caption
"Plan of Distribution" and in the last paragraph of the cover page in any
preliminary offering memorandum and in the Offering Memorandum constitute the
only written information furnished to the Company by or on behalf of the Initial
Purchasers expressly for use in the Offering Memorandum (or any amendment or
supplement to any of them), and that the Initial Purchasers shall not be deemed
to have provided any information (and therefore are not responsible for any
statements or omissions), pertaining to any arrangement or agreement with
respect to any party other than the Initial Purchasers. On the date hereof, at
the date of the Offering Memorandum, and any amendment or supplement thereto (if
different), and at the Closing Date, the Indenture will conform in all material
respects to the requirements of the Trust Indenture Act of 1939, as amended, and
the rules and regulations promulgated pursuant thereto (collectively, the
"TIA"), which would be applicable to an Indenture qualified under the TIA. No
contract or document of a character required to be described in the Offering
Memorandum, were the Offering Memorandum to be the form of prospectus contained
in a registration statement under the Act on Form S-1, has not been described as
so required.
(b) No action has been taken and no statute, rule, regulation or order has
been enacted, adopted or issued by any governmental body, agency or official
which prevents the issuance of the Notes or prevents or suspends the use of any
preliminary offering memorandum or suspends the sale of the Notes in any
jurisdiction referred to in Section 4(h) hereof; no injunction, restraining
order or order of any nature by any Federal or state court of competent
jurisdiction has been issued with respect to the Company which would prevent or
suspend the issuance or sale of the Notes or the use of any preliminary offering
memorandum or the Offering Memorandum in any jurisdiction referred to in Section
4(h) hereof; no action, suit or proceeding before any court or arbitrator or any
governmental body, agency or official, domestic or foreign, is pending against
or, to the best knowledge of the Company, threatened against the Company which,
if adversely determined, could materially interfere with or adversely affect the
issuance of the Notes or in any manner draw into question the validity of the
Registration Rights Agreement, this Agreement, the Indenture or the Notes.
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(c) The Indenture has been duly authorized by the Company and, when duly
executed and delivered by the Company in accordance with its terms, will be a
legal, valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws affecting creditors' rights and remedies
generally and to general principles of equity (regardless of whether enforcement
is sought in a proceeding at law or in equity) and except to the extent that a
waiver of rights or defenses under any usury laws may be unenforceable.
(d) The Notes have been duly authorized by the Company and, on the Closing
Date, will have been duly executed by the Company and will, when issued,
executed, authenticated and delivered in accordance with the Indenture and paid
for in accordance with the terms of this Agreement, constitute legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and similar laws affecting creditors' rights and remedies generally
and to general principles of equity (regardless of whether enforcement is sought
in a proceeding at law or in equity), and except to the extent that a waiver of
rights or defenses under any usury laws may be unenforceable. The Notes will be
entitled to the benefits of the Indenture and will conform in all material
respects to the descriptions thereof in the Offering Memorandum.
(e) This Agreement has been duly authorized and validly executed and
delivered by the Company and constitutes a valid and legally binding agreement
of the Company, enforceable against the Company in accordance with its terms
(assuming due execution and delivery by you of this Agreement), except as rights
of indemnity or contribution, or both, may be limited by state and Federal laws.
(f) The execution and delivery of this Agreement, the Indenture, the
Registration Rights Agreement, the Escrow Agreement and the Notes by the
Company, the issuance and sale of the Notes, the performance of this Agreement
and the Indenture and the consummation of the transactions contemplated by this
Agreement and the Indenture will not conflict with or result in a breach or
violation of (A) any of the respective charters or bylaws of the Company or any
of
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the Subsidiaries or (B) any of the terms or provisions of, or constitute a
default or cause an acceleration of any obligation under or result in the
imposition or creation of (or the obligation to create or impose) any security
interest, mortgage, pledge, claim, lien, encumbrance or adverse interest of any
nature (each, a "Lien"), with respect to, any obligation, bond, agreement, note,
debenture, or other evidence of indebtedness, or any indenture, mortgage, deed
of trust or other agreement, lease or instrument to which the Company or any
Subsidiary is a party or by which it or any of them is bound, or to which any
properties of the Company or any Subsidiary is or may be subject, or contravene
any order of any court or governmental agency, body or official having
jurisdiction over the Company or any Subsidiary or any of their properties, or
violate or conflict with any statute, rule or regulation or administrative
regulation or decree or court decree applicable to the Company or any Subsidiary
or any of their respective assets or properties.
(g) Each of the Registration Rights Agreement and the Escrow Agreement has
been duly and validly authorized by the Company and on the Closing Date will
have been duly executed and delivered by the Company and, when duly executed and
delivered by the other parties thereto, will be a legal, valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except as rights of indemnity or contribution, or both, may be limited by
state and Federal laws and except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and similar laws affecting creditors' rights and remedies generally and
to general principles of equity (regardless of whether enforcement is sought in
a proceeding at law or in equity). Each of the Registration Rights Agreement
and the Escrow Agreement conforms in all material respects with the descriptions
thereof in the Offering Memorandum.
(h) No authorization, approval or consent or order of, or filing with, any
court or governmental body, agency or official is necessary in connection with
the transactions contemplated by this Agreement, the Registration Rights
Agreement, the Escrow Agreement and the Indenture except such as may be required
by state securities or Blue Sky laws or regulations and, with respect to the
Registration Rights Agreement, the Act and the TIA. None of the Company nor any
of its affiliates is presently doing business with the government of Cuba or
with any person or affiliate located in Cuba.
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(i) The Company and each of the Subsidiaries has been duly incorporated, is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the requisite power and authority to carry
on its business as it is currently being conducted and as described in the
Offering Memorandum as proposed to be conducted, and to own, lease and operate
its properties, as applicable, and, with respect to the Company, to authorize
the offering of the Notes, to execute, deliver and perform this Agreement, the
Indenture, the Escrow Agreement and the Registration Rights Agreement and to
issue, sell and deliver the Notes; and the Company and each of the Subsidiaries
is duly qualified and is in good standing as a foreign corporation authorized to
do business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect, whether
singly or in the aggregate, on the properties, business, results of operations,
affairs, condition (financial or otherwise) or prospects of the Company and the
Subsidiaries taken as a whole (a "Material Adverse Effect");
(j) The consolidated capitalization of the Company is as set forth in the
Offering Memorandum, under the caption "Capitalization" in the column "Actual"
and, after consummation of the Offering, will be as set forth in the column "As
Adjusted."
(k) All of the outstanding shares of capital stock of, or other ownership
interests in, each Subsidiary have been duly authorized and validly issued and
are fully paid and nonassessable, and other than (i) the ownership by an
unaffiliated third-party of 549 shares of common stock, $0.01 par value (the
"OCI Common Stock"), of Omnipoint Communications Inc., a Delaware corporation
("OCI"), constituting 4.4% of the outstanding capital stock of OCI and (ii) the
pledge by Omnipoint PCS, Inc., a Delaware corporation, of 11,874 shares of OCI
Common Stock, constituting 95.6% of the outstanding capital stock of OCI, to
Mellon Bank, N.A., as collateral agent for the ratable benefit of Northern
Telecom Inc., as administrative agent and Ericsson Inc., as administrative
agent, pursuant to the Amended and Restated Pledge Agreement dated as of August
7, 1996, are owned by the Company free and clear of any Lien. There are no
outstanding subscriptions, rights, warrants, options, calls, convertible or
exchangeable securities, commitments of sale, or Liens related to or entitling
any person to purchase or other-
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wise to acquire any shares of the capital stock of, or other ownership interest
in, any Subsidiary.
(l) Neither the Company nor any Subsidiary is (A) in violation of its
respective charter or bylaws or (B) in default in the performance of any
obligation, bond, agreement, debenture, note or any other evidence of
indebtedness, or any indenture, mortgage, deed of trust or other contract, lease
or other instrument to which it is a party or by which it is bound, or to which
any of the property or assets any of them is subject, except in the case of (B)
defaults which, singly or in the aggregate, as could not reasonably be expected
to have a Material Adverse Effect.
(m) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, pending against or affecting
the Company or any Subsidiary or any of their respective assets or properties,
which, taken singly or in the aggregate, could have a Material Adverse Effect,
or which might materially and adversely affect the performance by the Company of
its obligations pursuant to this Agreement or the transactions contemplated
hereby or thereby and, to the best knowledge of the Company, no such action,
suit or proceeding is contemplated or threatened.
(n) Neither the Company nor any Subsidiary has violated any foreign,
federal, state or local law or regulation relating to the protection of human
health and safety or the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), nor any federal or state law
relating to discrimination in the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws, nor any provisions of the
Employee Retirement Income Security Act, as amended, or the rules and
regulations promulgated thereunder, which violations, singly or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
(o) The Company and each of the Subsidiaries has such permits, licenses,
franchises and authorizations of governmental or regulatory authorities
("permits"), including, without limitation, under any applicable Environmental
Laws, as are necessary to own, lease and operate its respective properties and
to carry on its business as it is currently being conducted and as it is
proposed to be conducted as described in the Prospectus; the Company and each of
the
15
Subsidiaries has fulfilled and performed all of its material obligations with
respect to such permits and no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination thereof or results in
any other material impairment of the rights of the holder of any such permit;
and, except as described in the Offering Memorandum, such permits contain no
restrictions that are materially burdensome to the Company or any of the
Subsidiaries.
(p) In the ordinary course of its business, the Company conducts a periodic
review of the effect of Environmental Laws on the business, operations and
properties of the Company and the Subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (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). On the basis of such review, the Company has
reasonably concluded that such associated costs and liabilities, singly or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(q) Except as could not reasonably be expected to have a Material Adverse
Effect, each of the Company and the Subsidiaries has good and marketable title,
free and clear of all Liens (except as permitted by clauses (v), (vi) and (viii)
of Section 4.9 of the Indenture), to all property and assets described in the
Offering Memorandum as being owned by it and such properties and assets are in
the condition and suitable for use as so described. All leases to which any of
the Company and the Subsidiaries is a party are valid and binding and no default
has occurred and is continuing thereunder (in the case of defaults by persons
other than the Company and the Subsidiaries, to the best knowledge of the
Company and the Subsidiaries), which could, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect, and the Company and
the Subsidiaries enjoy peaceful and undisturbed possession under all such leases
to which any of them is a party as lessee with such exceptions as do not
interfere with the use made or proposed to be made by them.
(r) The Company and the Subsidiaries maintain insurance at least in such
amounts and covering at least 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.
16
(s) Coopers & Xxxxxxx L.L.P., the firm of accountants that has certified or
shall certify the applicable consolidated financial statements of the Company
and subsidiaries and the other financial statements included or to be included
as part of the Offering Memorandum, are independent public accountants with
respect to the Company, as would be required under the Act. The consolidated
financial statements and the other financial statements, together with related
schedules and notes, set forth in the Offering Memorandum, comply as to form in
all material respects with the requirements applicable to registration
statements on Form S-1 under the Act and fairly present the consolidated
financial position of the Company and the financial position of its subsidiaries
at the respective dates indicated and the results of their operations and their
cash flows, as applicable, for the respective periods indicated, and were
prepared in accordance with generally accepted accounting principles in the
United States of America ("GAAP"), consistently applied throughout such periods
subject in the case of interim statements to normal recurring adjustments. The
other financial and statistical information and data included in the Offering
Memorandum are accurately presented and prepared on a basis consistent with the
financial statements and the books and records of the Company.
(t) Subsequent to the respective dates as of which information is given in
the Offering Memorandum and up to the Closing Date, except as set forth in the
Offering Memorandum, neither the Company nor any of the Subsidiaries has
incurred any liabilities or obligations, direct or contingent, which are
material to the Company and the Subsidiaries, taken as a whole, nor entered into
any transaction not in the ordinary course of business and there has not been,
singly or in the aggregate, any material adverse change, or any development
which could reasonably be expected to involve a material adverse change, in the
properties, business, results of operations, condition (financial or otherwise),
affairs or prospects of the Company and the Subsidiaries, taken as a whole (a
"Material Adverse Change").
(u) The Company and each of the Subsidiaries have filed (or have had filed
on their behalf) all tax returns required to be filed by any of them prior to
the date hereof under applicable law, other than those filings being contested
in good faith. All such tax returns and amendments thereto are true, correct
and complete in all material respects. The Company and each of the Subsidiaries
have paid (or
17
have had paid on their behalf) all material taxes, including all Federal, state,
local and foreign taxes, and other assessments of a similar nature (whether
imposed directly or through withholding), including any interest, additions to
tax, or penalties applicable thereto, other than those taxes being contested in
good faith and for which adequate reserves have been provided or those currently
payable without penalty or interest. To the best of the Company's and each of
the Subsidiaries' knowledge, there are no tax items of a material nature that
are currently under examination by the Internal Revenue Service or any other
domestic or foreign governmental authority responsible for the administration of
any such taxes.
(v) The Company and the Subsidiaries possess the patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks and trade names (collectively,
"Intellectual Property"), presently employed by them in connection with the
businesses now operated by them, and neither the Company nor any Subsidiary has
received any notice of infringement of or conflict with asserted rights of
others with respect to the foregoing except as could not, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The use of
such Intellectual Property in connection with the business and operations of the
Company and the Subsidiaries does not infringe on the rights of any person.
(w) (i) Except as set forth in the Offering Memorandum, (i) the Company
and each of the Subsidiaries have applied for or obtained all certificates,
consents, exemptions, orders permits, licenses, authorizations or other
approvals (each, an "Authorization") of and from, and has made all declarations
and filings with, all Governmental Authorities, including, without limitation,
the Federal Communications Commission ("FCC") and each applicable state
regulatory agency or body that exercises or will exercise jurisdiction over the
Company ("Applicable PUC"), necessary to conduct its business as it is currently
being conducted and as it is proposed to be conducted as described in the
Offering Memorandum, except to the extent that the failure to obtain, declare or
file would not, singly or in the aggregate, have a Material Adverse Effect, (ii)
all such Authorizations are valid and in full force and effect, except where the
failure of any such Authorization to be in full force and effect would not,
singly or in the aggregate, have a Material Adverse Effect and (iii) the Company
and each of the Subsidiaries is in compliance
18
in all material respects with the rules and regulations of the FCC and all
Applicable PUCs and the terms and conditions of all such Authorizations; (2)
except for rulemaking proceedings of general applicability to the PCS industry
not required to be described in the Offering Memorandum, there are no legal or
governmental proceedings pending before any Governmental Authority (except as
such as may be required under the securities or Blue Sky Laws of the various
states), including without limitation, the FCC or any Applicable PUC, to which
the Company or any Subsidiary is a party or of which any property of the Company
or any Subsidiary is subject, and to the Company's knowledge, no such
proceedings against the Company or any Subsidiary are threatened or
contemplated; and (3) the execution, delivery and performance of this Agreement
by the Company, the compliance by the Company with all the provisions hereof and
the consummation of the transactions contemplated herein and in the Offering
Memorandum, including, without limitation, the issuance and sale of the Notes to
the Initial Purchasers, (i) do not conflict with or result in a violation of the
Telecommunications Act of 1996, the Communications Act of 1934, as amended, the
rules or regulations of the FCC or any Applicable PUC, or any judgment, order or
decree of any Governmental Authority, (ii) will not cause any cancellation,
termination, revocation, forfeiture or material impairment of any Authorization,
and (iii) do not and will not require notice to or the approval of the FCC, any
Applicable PUCs, or any other Governmental Authorities (except as such may be
required under the securities or Blue Sky laws of the various states).
(x) The Company and the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset accountability; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(y) Neither the Company nor any Subsidiary nor any agent acting on their
behalf has taken or will take any action that is reasonably likely to cause the
issuance or sale of the Notes to violate Regulation G, T, U, or X of the Board
of
19
Governors of the Federal Reserve System, in each case as in effect on the
Closing Date.
(z) Neither the Company nor any Subsidiary nor the Escrow Account is (i) an
"investment company" or a company "controlled" by an investment company within
the meaning of the Investment Company Act of 1940, as amended, or (ii) a
"holding company" or a "subsidiary company" of a holding company, or an
"affiliate" thereof within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
(aa) No holder of any security of the Company has or will have any right to
require registration of such security by virtue of the transactions contemplated
by this Agreement or the Registration Rights Agreement, except as have been
waived in writing or except as may and will be satisfied by the filing of a
separate registration statement.
(ab) Except as disclosed in the Offering Memorandum, there are no business
relationships or related party transactions which would be required to be
disclosed therein by Item 404 of Regulation S-K of the Commission if the
Offering Memorandum were a prospectus contained in a registration statement on
Form S-1 filed under the Act.
(ac) On the Closing Date, the Notes will have been approved for inclusion
on PORTAL, subject to official notice of issuance.
(ad) Neither the Company nor any affiliate (as such term is defined in Rule
501(b) under the Act) of the Company 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 Act) which is or will be integrated with the
sale of the Notes in a manner that would require registration of the offering
and sale of the Notes under the Act.
(ae) Neither the Company nor any officer, director or other person (other
than you, as to whom the Company makes no representation), acting on its behalf
has engaged, in connection with the offering of the Notes, in any form of
general solicitation or general advertising, including but not limited to the
methods described in Rule 502(c) under the Act.
20
(af) Assuming the accuracy of your representations contained in Section
2(b) hereof and your compliance with your agreements therein set forth, it is
not necessary, in connection with the sale and delivery of the Notes to you and
the offer and resale of the Notes by you, in each case in the manner
contemplated by this Agreement and the Offering Memorandum, to register the
Notes under the Act or to qualify the Indenture under the TIA.
(ag) The Company has delivered to the Initial Purchasers true and correct
copies of each of the Senior Notes, the NT Credit Facility and the Ericsson
Credit Facility in the form executed and delivered, and there have been no
amendments, alterations, modifications or waivers of any of the provisions of
the Senior Notes, the NT Credit Facility or the Ericsson Credit Facility from
the form which has been delivered to the Initial Purchasers; there exists as of
the date hereof no event or condition which would constitute a default or an
event of default (in each case as defined in the Senior Notes, the NT Credit
Facility or the Ericsson Credit Facility, as applicable), under either such
facility which would result in a Material Adverse Effect or materially adversely
effect the ability of the Company to consummate the transactions contemplated by
this Agreement. The Senior Notes, the NT Credit Facility and the Ericsson
Credit Facility conform in all material respects with the respective
descriptions thereof in the Offering Memorandum.
(ah) Each certificate signed by any officer of the Company and delivered to
the Initial Purchasers or counsel for the Initial Purchasers in connection with
the transactions contemplated by this Agreement shall be deemed to be a
representation and warranty by the Company to each Initial Purchaser as to the
matters covered thereby.
6. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless (i) each of the
Initial Purchasers and (ii) each person, if any, who controls (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act), any of the
Initial Purchasers (any of the persons referred to in this clause (ii) being
hereinafter referred to as a "controlling person"), and (iii) the respective
officers, directors, partners, employees, representatives and agents of any of
the Initial Purchasers or any controlling person (any person referred to in
clause (i), (ii) or (iii) may
21
hereinafter be referred to as an "Indemnified Person"), to the fullest extent
lawful, from and against any and all losses, claims, damages, judgments,
actions, expenses and other liabilities (collectively, "Liabilities"), including
without limitation and as incurred, reimbursement of all reasonable costs of
investigating, preparing, pursuing or defending any claim or action, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel to any
Indemnified Person, directly or indirectly caused by, related to, based upon,
arising out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in the Offering Memorandum (including any
amendment or supplement thereto), or any preliminary offering memorandum, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in light of the
circumstances under which they were made), not misleading, except insofar as
such Liabilities are caused by an untrue statement or omission or alleged untrue
statement or omission that is (x) made in reliance upon and in conformity with
information relating to either of the Initial Purchasers furnished in writing to
the Company by or on behalf of such Initial Purchaser expressly for use in any
preliminary offering memorandum or the Offering Memorandum (or any amendment or
supplement thereto), or (y) with respect to the Initial Purchaser from whom the
person asserting the Liabilities purchased Notes, made in any preliminary
offering memorandum if a copy of the Offering Memorandum (as amended or
supplemented, if the Company shall have furnished the Initial Purchasers with
such amendments or supplements thereto on a timely basis), was not delivered by
or on behalf of such Initial Purchaser to the person asserting the Liabilities,
if required by law to have been so delivered by the Initial Purchaser seeking
indemnification, at or prior to the written confirmation of the sale of the
Notes, and it shall be finally determined by a court of competent jurisdiction,
in a judgment not subject to appeal or review, that the Offering Memorandum (as
so amended or supplemented), would have completely corrected such untrue
statement or omission. The Company shall notify you promptly of the institution,
threat or assertion of any claim, proceeding (including any governmental
investigation), or litigation in connection with the matters addressed by this
Agreement which involves the Company or an Indemnified Person.
(b) In case any action or proceeding (for all purposes of this Section 6,
including any governmental investigation), shall be brought or asserted against
any of the Indemnified Persons with respect to which indemnity may be sought
against
22
the Company, such Indemnified Person shall promptly notify the Company
in writing; provided, that the failure to give such notice shall not relieve the
--------
Company of its obligations pursuant to this Agreement. Upon receiving such
notice, the Company shall assume, at its sole expense, the defense thereof, with
counsel reasonably satisfactory to such Indemnified Person and, after written
notice from the Company to such Indemnified Person of its election so to assume
the defense thereof made within five business days after receipt of the notice
from the Indemnified Person of such action or proceeding, the Company shall not
be liable to such Indemnified Person hereunder for legal expenses of other
counsel subsequently incurred by such Indemnified Person in connection with the
defense thereof, other than costs of investigation, unless (i) the Company
agrees in writing to pay such fees and expenses, or (ii) the Company fails
promptly to assume such defense or fails to employ counsel reasonably
satisfactory to such Indemnified Person or (iii) the named parties to any such
action or proceeding (including any impleaded parties), include both such
Indemnified Person and any of the Company or an affiliate of the Company, and
either (x) such Indemnified Person shall have been advised by counsel that there
may be one or more legal defenses available to such Indemnified Person that are
different from or additional to those available to one or more of the Company or
such affiliate or (y) a conflict may exist between such Indemnified Person and
the Company or such affiliate. In the event of any of clause (i), (ii) and (iii)
of the immediately preceding sentence, if such Indemnified Person notifies the
Company in writing, the Company shall not have the right to assume the defense
thereof and such Indemnified Person shall have the right to employ its own
counsel in any such action and the reasonable fees and expenses of such counsel
shall be paid, as incurred, by the Company, it being understood, however, that
the Company shall not, in connection with any one such action or proceeding or
separate but substantially similar or related actions or proceedings arising out
of the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) at any time for all such Indemnified Persons. The Company agrees to be
liable for any settlement of such action or proceeding effected with the
Company's prior written consent, which consent will not be unreasonably
withheld, and the Company agrees to indemnify and hold harmless any Indemnified
Person from and against any Liabilities by reason of any settlement of any
action effected with the written consent of the Company. The Company agrees to
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than ten business days after
receipt by the Company
23
of the aforesaid request for payment in respect of an indemnification obligation
pursuant hereto and (ii) the Indemnified Person shall not have been reimbursed
in accordance with such request prior to the date of such settlement. The
Company shall not, without the prior written consent of each Indemnified Person,
settle or compromise or consent to the entry of any judgment in or otherwise
seek to terminate any pending or threatened action, claim, litigation or
proceeding in respect of which indemnification or contribution may be sought
pursuant hereto (whether or not any Indemnified Person is a party thereto),
unless such settlement, compromise, consent or termination includes an
unconditional release of each Indemnified Person from all liability arising out
of such action, claim, litigation or proceeding.
(c) Each of the Initial Purchasers agrees, severally and not jointly, to
indemnify and hold harmless the Company and any person controlling (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) the Company,
and the officers, directors, partners, employees, representatives and agents of
each such person, to the same extent as the foregoing indemnity from the Company
to each of the Indemnified Persons, but only with respect to claims and actions
based on information relating to such Initial Purchaser and conforming to
information furnished in writing by or on behalf of such Initial Purchaser
expressly for use in the Offering Memorandum or any preliminary offering
memorandum, as applicable. In case any action or proceeding (including any
governmental investigation), shall be brought or asserted against the Company,
any of its directors, any such officer, or any such controlling person based on
the Offering Memorandum or any preliminary offering memorandum in respect of
which indemnity is sought against any Initial Purchaser pursuant to the
foregoing sentence, the Initial Purchaser shall have the rights and duties given
to the Company (except that if the Company shall have assumed the defense
thereof, such Initial Purchaser shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Initial Purchaser), and
the Company, its directors, any such officers and each such controlling person
shall have the rights and duties given to the Indemnified Person by Section 7(b)
above.
(d) If the indemnification provided for in this Section 6 is finally
determined by a court of competent jurisdiction to be unavailable to an
indemnified party in respect of any Liabilities referred to herein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid
24
or payable by such indemnified party as a result of such Liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and such Initial Purchaser, on the other hand, from
the offering of the Notes 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 indemnifying parties and the indemnified party, as
well as any other relevant equitable considerations. The relative benefits
received by the Company, on the one hand, and any of the Initial Purchasers (and
its related Indemnified Persons), on the other hand, shall be deemed to be in
the same proportion as the total proceeds from the Notes (net of discounts and
commissions but before deducting expenses), received by the Company bears to the
total discounts and commissions received by such Initial Purchaser, in each case
as set forth in the Offering Memorandum. The relative fault of the Company, on
the one hand, and such Initial Purchaser, 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 related to information supplied by the Company, on the one hand,
or by such Initial Purchaser, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The indemnity and contribution obligations of the Company
set forth herein shall be in addition to any liability or obligation the Company
may otherwise have to any Indemnified Person.
The Company and the Initial Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) 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 which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
any Liabilities, referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Xxxxxxx 0, xxxx of the Initial Purchasers (and their related
Indemnified Persons) shall be required to contribute, in the aggregate, any
amount in excess of the amount by which the total discounts and commissions
applicable to the Notes purchased by such Initial Purchaser exceeds the amount
of any damages and related expenses which such
25
Initial Purchaser (and its related Indemnified Persons), has otherwise been
required to pay or incur by reason of such untrue or alleged untrue statement or
omission or alleged omission. The Initial Purchasers' obligations to contribute
pursuant to this Section 6(d) are several in proportion to the respective
aggregate principal amount of Notes purchased by each of the Initial Purchasers
hereunder and not joint.
7. Conditions to Initial Purchasers' Obligations. The respective obligations
---------------------------------------------
of the several Initial Purchasers to purchase any Notes under this Agreement are
subject to the satisfaction of each of the following conditions on the Closing
Date:
(a) All the representations and warranties of the Company contained in this
Agreement shall be true and correct on the Closing Date with the same force and
effect as if made on and as of the Closing Date. The Company shall have
performed or complied with all of its obligations and agreements herein
contained and required to be performed or complied with by it at or prior to the
Closing Date.
(b) At the Closing Date, no stop order suspending the sale of the Notes in
the United States or any jurisdiction referred to in Section 4(h) shall have
been issued and no proceeding for that purpose shall have been commenced or
shall be pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental agency,
body or official which would, as of the Closing Date, prevent the issuance of
the Notes; and no injunction, restraining order or order of any nature by any
Federal or state court of competent jurisdiction shall have been issued as of
the Closing Date which would prevent the issuance of the Notes. Subsequent to
the execution and delivery of this Agreement and prior to the Closing Date,
there shall not have been any downgrading or indication that such securities
have been placed on any "watch list" for possible downgrading, nor shall any
review for a possible change, that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by any
nationally recognized statistical rating organization, as such term is defined
for purposes of Rule 436(g)(2) of the Act.
(d) Since the earlier of the date hereof or the dates as of which
information is given in the Offering Memorandum, there shall not have been any
Material Adverse Change, (ii) since the date of the latest balance sheet
included in the
26
Offering Memorandum, there shall not have been any material adverse change, or
any development involving a prospective material adverse change, in the capital
stock or debt, of the Company and (iii) the Company shall have no liability or
obligation, direct or contingent, that is material to the Company and the
Subsidiaries, taken as a whole, and which is not disclosed in the Offering
Memorandum.
(e) You shall have received a certificate of the Company, dated the Closing
Date, executed on behalf of the Company, by the vice president and chief
financial officer and secretary of the Company confirming, as of the Closing
Date, the matters set forth in paragraphs (a), (b), (c) and (d) of this
Section 7.
(f) On the Closing Date, you shall have received an opinion (satisfactory
to you and your counsel), dated the Closing Date, of Piper & Marbury L.L.P.,
counsel for the Company, to the effect that:
(i) The Company and each of the Subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the
corporate power and authority to carry on its business as it is
currently being conducted and as described in the Offering Memorandum
as proposed to be conducted, and to own, lease and operate its
properties;
(ii) the Company and each of the Subsidiaries is duly qualified
and is in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or
its ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a Material
Adverse Effect;
(iii) all of the outstanding shares of capital stock of, or
other ownership interests in, each Subsidiary have been duly
authorized and validly issued and are fully paid and nonassessable,
and, to the best of such counsel's knowledge after due inquiry, other
than (i) the ownership by an unaffiliated third-party of 549 shares of
OCI Common Stock and (ii) the pledge by Omnipoint PCS, Inc. of
27
11,874 shares of OCI Common Stock to Mellon Bank, N.A., as collateral
agent, for the ratable benefit of Northern Telecom, Inc., as
administrative agent, and Ericsson Inc., as administrative agent,
pursuant to the Amended and Restated Pledge Agreement dated as of
August 7, 1996, are owned by the Company free and clear of any Lien;
and, to the best of such counsel's knowledge after due inquiry, there
are no outstanding subscriptions, rights, warrants, options, calls,
convertible or exchangeable securities, commitments of sale, or Liens
related to or entitling any person to purchase or otherwise to acquire
any shares of the capital stock of, or other ownership interest in,
any Subsidiary;
(iv) the Company has the requisite corporate power and
authority to authorize the offering of the Notes, to execute, deliver
and perform its obligations under this Agreement, the Notes, the
Indenture, the Registration Rights Agreement and the Escrow Agreement
and to issue, sell and deliver the Notes; each of this Agreement, the
Notes, the Indenture, the Registration Rights Agreement and the Escrow
Agreement have been duly authorized by all necessary corporate action,
executed and delivered by the Company;
(v) when issued, executed and authenticated and delivered in
accordance with the Indenture and paid for by you in accordance with
the terms of this Agreement, the Notes will constitute legal, valid
and binding obligations of the Company, enforceable against the
Company in accordance with their terms and entitled to the benefits of
the Indenture, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting the rights or
remedies of creditors generally and to general principles of equity
(regardless of whether enforcement is considered in a proceeding at
law or in equity), and except to the extent that a waiver of rights or
defenses under any usury laws may be unenforceable;
(vi) the Indenture, assuming due authorization, execution and
delivery thereof by the Trustee, will be a legal, valid and
28
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting the
rights or remedies of creditors generally and to general principles of
equity (regardless of whether enforcement is considered in a
proceeding at law or in equity), and except to the extent that a
waiver of rights or defenses under any usury laws may be
unenforceable;
(vii) neither the Company nor any Subsidiary nor the Escrow
Account is (a) an "investment company" or a company "controlled" by an
investment company within the meaning of the Investment Company Act of
1940, as amended, or (b) a "holding company" or a "subsidiary company"
of a holding company, or an "affiliate" thereof within the meaning of
the Public Utility Holding Company Act of 1935, as amended;
(viii) no authorization, approval, consent or order of, or
filing with, any court or governmental body or agency is required for
the consummation by the Company of the transactions contemplated by
this Agreement, the Indenture, the Registration Rights Agreement and
the Escrow Agreement, except that such counsel need express no opinion
with respect to state securities or Blue Sky laws or regulations and,
with respect to the Registration Rights Agreement, the Act and the
TIA;
(ix) the execution and delivery of this Agreement, the
Indenture, the Registration Rights Agreement and the Escrow Agreement,
the issuance and sale of the Notes, the performance of its obligations
under this Agreement, the Notes, the Indenture, the Registration
Rights Agreement and the Escrow Agreement and the consummation of the
transactions contemplated by this Agreement, the Indenture, the
Registration Rights Agreement and the Escrow Agreement will not
conflict with or result in a breach or violation of any of the
respective charters or bylaws of the Company or any of the
Subsidiaries or the terms or provisions of, or constitute a default
29
or cause an acceleration of any obligation under or result in the
imposition or creation of (or the obligation to create or impose) any
Lien, with respect to, any obligation, bond, agreement, note,
debenture or other evidence of indebtedness, or any indenture,
mortgage, deed of trust or other agreement, lease or instrument
(identified to such counsel in writing by the Company as material to
the Company and the Subsidiaries, taken as a whole), any order of any
court or governmental agency, body or official having jurisdiction
over the Company or any Subsidiary or any of their respective assets
or properties, or violate or conflict with any statute, rule or
regulation or administrative regulation or decree or court decree
applicable to the Company or any Subsidiary or any of their respective
assets or properties;
(x) each of the Registration Rights Agreement and the Escrow
Agreement, assuming due authorization, execution and delivery thereof
by the other parties thereto, will be a legal, valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as rights of indemnity or
contribution, or both, may be limited by state and Federal laws and
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other
similar laws affecting the rights or remedies of creditors generally
and to general principles of equity (regardless of whether enforcement
is considered in a proceeding at law or in equity). Each of the
Registration Rights Agreement and the Escrow Agreement conforms in all
material respects with the descriptions thereof in the Offering
Memorandum;
(xi) neither the Company nor any Subsidiary is (A) in violation
of its respective charter or bylaws or (B) in default in the
performance of any obligation, bond, agreement, debenture, note or any
other evidence of indebtedness, or any indenture, mortgage, deed of
trust or other contract, lease or other instrument (identified to such
counsel in writing by the Company as material to the Company and the
Subsidiaries, taken as a whole) to which it is a
30
party or by which it is bound, or to which any of the property or
assets of any of them is subject;
(xii) the Escrow Agreement is sufficient to create a security
interest in the financial assets described therein under the Uniform
Commercial Code. Assuming that the Escrow Agent continues to hold the
financial assets described in the Escrow Agreement for the benefit of
the Trustee in accordance with the Escrow Agreement, there has been
granted to the Trustee a valid and perfected security interest in the
financial assets described in the Escrow Agreement in accordance with
the Uniform Commercial Code;
(xiii) all of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid and nonassessable;
(xiv) to the best of such counsel's knowledge, after due
inquiry, neither the Company nor any of its Subsidiaries has violated
any Environmental Laws, nor any Federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any
applicable Federal or state wages and hours laws, nor any provisions
of the Employee Retirement Income Security Act, as amended, or the
rules and regulations promulgated thereunder, which in each case might
result in any Material Adverse Change;
(xv) the Company and each of its Subsidiaries has such material
permits, licenses, franchises and authorizations of governmental or
regulatory authorities ("permits"), including, without limitation,
under any applicable Environmental Laws, as are necessary to own,
lease and operate its respective properties and to conduct its
business as currently being conducted and as proposed to be conducted
as described in the Offering Memorandum; to the best of such counsel's
knowledge, after due inquiry, the Company and each of the Subsidiaries
has fulfilled and performed all of its material obligations with
respect to such permits and no event has occurred which allows, or
after notice or lapse of time would allow,
31
revocation or termination thereof or results in any other material
permit, subject in each case to such qualification as may be set forth
in the Offering Memorandum; and, except as described in the Offering
Memorandum, such permits contain no restrictions that are materially
burdensome to the Company or any of the Subsidiaries;
(xvi) (1) except as set forth in the Offering Memorandum, (i)
the Company and each of the Subsidiaries has applied for or obtained
all Authorizations of and from, and has made all declarations and
filings with, all Governmental Authorities, including, without
limitation, the FCC and each Applicable PUC necessary to conduct its
business as it is currently being conducted and as it is proposed to
be conducted as described in the Offering Memorandum, except to the
extent that the failure to obtain, declare or file would not, singly
or in the aggregate, have Material Adverse Effect, (ii) all such
Authorizations are valid and in full force and effect, except where
the failure of any such Authorization to be in full force and effect
would not, singly or in the aggregate, have a Material Adverse Effect
and (iii) the Company and each of the Subsidiaries is in compliance in
all material respects with the rules and regulations of the FCC and
all Applicable PUCs and the terms and conditions of all such
Authorizations; (2) except for rulemaking proceedings of general
applicability to the PCS industry not required to be described in the
Offering Memorandum, there are no material legal or governmental
proceedings pending before any Governmental Authority (except as such
may be required under the Act or other securities or Blue Sky laws of
the various states or by the NASD), including without limitation, the
FCC or any Applicable PUC, to which the Company or any Subsidiary is a
party or of which any property of the Company or any Subsidiary is the
subject, and to the best of such counsel's knowledge, no such
proceedings against the Company or any Subsidiary are threatened or
contemplated; and (3) the execution, delivery and performance of this
Agreement by the Company, the compliance by the Company with all the
provisions thereof and the consummation of the transactions
contemplated therein and in the Offering Memorandum, including,
without limitation, the issuance and sale of the Notes to
32
the Initial Purchasers, (i) do not conflict with or result in a
violation of the Telecommunications Act of 1996, the Communications
Act of 1934, as amended, the rules or regulations of the FCC or any
Applicable PUC, or any judgment, order or decree of any Governmental
Authority, (ii) will not cause any cancellation, termination,
revocation, forfeiture or material impairment of any Authorization,
and (iii) do not and will not require notice to or the approval of the
FCC, any Applicable PUCs, or any other Governmental Authorities
(except as such may be required under the Act or other securities or
Blue Sky laws of the various states or by the NASD);
(xvii) the Notes conform in all material respects to the
description thereof in the Offering Memorandum under the caption
"Description of the Notes";
(xviii) the statements under the captions "Business -- Strategic
Relationships" and "-- Regulatory Environment", "Plan of Distribution"
and "Management", insofar as such statements constitute a summary of
legal matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal matters,
documents and proceedings; and
(xix) assuming the accuracy of the representations and
warranties of the Initial Purchasers in Section 2(b) of this Purchase
Agreement and of the Company in Section 5(ad) of this Purchase
Agreement, the issuance and sale of the Notes to the Initial
Purchasers and the offering, resale and delivery of the Notes by the
Initial Purchasers, in each case in the manner disclosed in the
Offering Memorandum, are exempt from the registration requirements of
Section 5 of the Act and it is not necessary to qualify the Indenture
under the TIA.
In giving their opinion required by subsection (f) of this Section 7, such
counsel (i) may state that such opinions are limited to matters governed by the
Federal laws of the United States of America, the laws of the State of New York,
and the General Corporation Law of the State of Delaware, and (ii) shall state
that such counsel has participated in conferences with officers and other
representatives
33
of the Company, representatives of the independent public accountants for the
Company, your representatives and your counsel in connection with the
preparation of the Offering Memorandum and such counsel shall advise you that
such counsel believes that the Offering Memorandum (as amended or supplemented),
as of its date and as of the Closing Date, did not contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading (except no opinion need be expressed as to
the financial statements, notes and schedules included in the Offering
Memorandum).
(g) You shall have received an opinion dated the Closing Date, of Skadden,
Arps, Slate, Xxxxxxx & Xxxx (Illinois), counsel for the Initial Purchasers, in
form and substance reasonably satisfactory to you.
(h) You shall have received letters on and as of the date hereof as well as
on and as of the Closing Date, in form and substance satisfactory to you, from
Coopers & Xxxxxxx L.L.P., independent public accountants complying with Rule 2-
01 of Regulation S-X of the Commission, with respect to the financial statements
and certain financial and statistical information contained in the Offering
Memorandum as you shall reasonably request.
(i) Prior to the Closing Date, the Company shall have furnished to you such
further information, certificates and documents as you may reasonably request.
(j) The Company shall not have failed at or prior to the Closing Date to
perform or comply with any of the agreements herein contained and required to be
performed or complied with by the Company at or prior to the Closing Date.
(k) The Notes shall have been approved for inclusion on the PORTAL system,
subject to notice of official issuance.
(l) The Registration Rights Agreement and the Escrow Agreement shall have
been executed and delivered by the Company and upon closing the Escrow Account
shall be funded from the Purchase Price as provided for in the Offering
Memorandum.
34
8. Effective Date of Agreement, Defaults and Termination. This Agreement
-----------------------------------------------------
shall become effective upon the later of (i) the execution and delivery of this
Agreement by the parties hereto, and (ii) the delivery of the Offering
Memorandum to the Initial Purchasers for their use in connection with sales of
the Notes.
This Agreement may be terminated at any time on or prior to the Closing
Date by the Initial Purchasers by notice to the Company if any of the following
has occurred: (i) subsequent to the date of the Offering Memorandum or the date
of this Agreement, any Material Adverse Change which, in the judgment of DLJ,
impairs the investment quality of the Notes, (ii) any outbreak or escalation of
hostilities or other national or international calamity or crisis or material
adverse change in the financial markets of the United States or elsewhere or any
other substantial national or international calamity or emergency if the effect
of such outbreak, escalation, calamity, crisis or emergency would, in DLJ's
judgment, make it impracticable or inadvisable to market the Notes or to enforce
contracts for the sale of the Notes, (iii) any suspension or limitation of
trading generally in securities on the New York or American Exchanges or the
National Association of Securities Dealers Automated Quotation National Market,
PORTAL or the over-the-counter markets or any setting of minimum prices for
trading on such exchanges or markets, (iv) any declaration of a general banking
moratorium by either Federal or New York state authorities, (v) the taking of
any action by any Federal, state or local government or agency in respect of its
monetary or fiscal affairs that in DLJ's judgment has a material adverse effect
on the financial markets in the United States, and would, in DLJ's judgment,
make it impracticable or inadvisable to market the Notes or to enforce contracts
for the sale of the Notes, (vi) any securities of the Company shall have been
downgraded or placed on any "watch list" for possible downgrading or reviewed
for a possible change that does not indicate the direction of the possible
change by any "nationally recognized statistical rating organization," as such
term is defined for purposes of Rule 436(g)(2) of the Act, or (vii) the
enactment, publication, decree or other promulgation of any Federal, state or
local statute, regulation, rule or order of any court or other governmental
authority which would in the judgment of DLJ have a Material Adverse Effect or
make it inadvisable or impractical to market the Notes.
If this Agreement shall be terminated by the Initial Purchasers pursuant to
clause (i), (vi) or (vii) of the second paragraph of this Section 8 or because
of the failure or refusal on the part of the Company to comply with the terms or
to fulfill
35
any of the conditions of this Agreement, the Company agrees to reimburse you for
all reasonable out-of-pocket expenses (including the reasonable fees and
disbursements of counsel) incurred by you. Notwithstanding any termination of
this Agreement, the Company shall be liable for all expenses which it agrees to
pay pursuant to Section 4 hereof. If this Agreement is terminated pursuant to
this Section 8, such termination shall be without liability of any Initial
Purchaser to the Company.
If on the Closing Date either of the Initial Purchasers shall fail or
refuse to purchase the Notes which it has agreed to purchase hereunder on such
date and arrangements satisfactory to you and the Company for the purchase of
such Notes are not made within 48 hours after such default, this Agreement shall
terminate without liability on the part of the non-defaulting Initial Purchaser
and the Company, except as otherwise provided in this Section 8. In any such
case that does not result in termination of this Agreement, either you or the
Company may postpone the Closing Date for not longer than seven (7) days, in
order that the required changes, if any, in the Offering Memorandum or any other
documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve a defaulting Initial Purchaser from liability in
respect of any default of any such Initial Purchaser under this Agreement.
9. Notices. Notices given pursuant to any provision of this Agreement shall
-------
be addressed as follows: (a) if to the Company, to Omnipoint Corporation at
0000 Xxxxx 00xx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, with a copy to Piper &
Marbury L.L.P, 0000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, Attention: Xxxxx
X. Xxxxxx, Esq., (b) if to any Initial Purchaser, to Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Debt Capital Markets, with a copy to Skadden, Arps, Slate, Xxxxxxx &
Xxxx (Illinois) at 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention:
Xxxx X. Xxxxxx, Esq., or (c) in any case to such other address as the person to
be notified may have requested in writing.
10. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK AS APPLIED TO
CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
36
11. Severability. Any determination that any provision of this Agreement may
------------
be, or is, unenforceable shall not affect the enforceability of the remainder of
this Agreement.
12. Successors. Except as otherwise provided, this Agreement has been and is
----------
made solely for the benefit of and shall be binding upon the Company, the
Initial Purchasers, any Indemnified Person referred to herein and their
respective successors and assigns, all as and to the extent provided in this
Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The terms "successors and assigns" shall not include
a purchaser of any of the Notes from any of the several Initial Purchasers
merely because of such purchase.
13. Certain Definitions. For purposes of this Agreement, "business day" means
-------------------
any day on which the New York Stock Exchange, Inc. is open for trading.
14. Counterparts. This Agreement may be executed in one or more counterparts
------------
and, if executed in one or more counterparts, the executed counterparts shall
each be deemed to be an original, and all such counterparts shall together
constitute one and the same instrument.
15. Headings. The headings herein are inserted for convenience of reference
--------
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
16. Survival. The indemnity and contribution provisions and the other
--------
agreements, representations and warranties of the Company, its officers and
directors and of the Initial Purchasers set forth in or made pursuant to this
Agreement shall remain operative and in full force and effect, and will survive
delivery of and payment for the Notes, regardless of (i) any investigation, or
statement as to the results thereof, made by or on behalf of any of the Initial
Purchasers or by or on behalf of the Company or the officers or directors of the
Company or any controlling person of the Company, (ii) acceptance of the Notes
and payment for them hereunder and (iii) termination of this Agreement.
37
Please confirm that the foregoing correctly sets forth the agreement among
the Company and you.
Very truly yours,
OMNIPOINT CORPORATION
By:/s/ Xxxxxxx Xxxxxx
------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Financial Officer
38
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: /s/ Xxxxxxx Xxxxx
------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxxxxx, Sachs & Co.
-------------------------------
(Xxxxxxx, Xxxxx & Co.)
XXXXXXXXXX SECURITIES
By: /s/ Xxxxxxxxxx Securities
-------------------------------
Name:
Title:
BA SECURITIES, INC.
By: /s/ BA Securities, Inc.
-------------------------------
Name:
Title:
39
SCHEDULE I
Principal
Amount
------------
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation $140,000,000
Xxxxxxx, Sachs & Co. 40,000,000
Xxxxxxxxxx Securities 10,000,000
BA Securities, Inc. 10,000,000
------------
200,000,000
===================================================================
