HORIZON PCS, INC.
HORIZON PERSONAL COMMUNICATIONS, INC.
BRIGHT PERSONAL COMMUNICATIONS SERVICES, LLC
$295,000,000
295,000 UNITS CONSISTING OF
14% SENIOR DISCOUNT NOTES DUE 2010
AND WARRANTS TO PURCHASE 3,805,500 SHARES OF CLASS A COMMON STOCK
PURCHASE AGREEMENT
SEPTEMBER 19, 2000
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
FIRST UNION SECURITIES, INC.
$295,000,000
HORIZON PCS, INC.
HORIZON PERSONAL COMMUNICATIONS, INC.
BRIGHT PERSONAL COMMUNICATIONS SERVICES, LLC
295,000 Units Consisting of
14% Senior Discount Notes due 2010
and Warrants to Purchase 3,805,500 Shares of Class A Common Stock
PURCHASE AGREEMENT
September 19, 2000
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
FIRST UNION SECURITIES, INC.
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Dear Sirs:
Horizon PCS, Inc., a Delaware corporation (the "COMPANY"), proposes to
issue and sell to Donaldson, Lufkin & Jenrette Securities Corporation and First
Union Securities, Inc. (each, an "INITIAL PURCHASER" and collectively, the
"INITIAL PURCHASERS") 295,000 units (the "UNITS"), each consisting of $1,000 in
aggregate principal amount at maturity of the Company's 14% Senior Discount
Notes due 2010 (the "INITIAL NOTES"), and one warrant (a "WARRANT," and all such
warrants being hereinafter referred to, collectively, as the "WARRANTS") to
purchase 12.90 shares of the Company's Class A common stock, par value $0.0001
per share ("COMMON STOCK"), subject to the terms and conditions set forth
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herein. The Initial Notes are to be issued pursuant to the provisions of an
indenture (the "INDENTURE"), to be dated as of the Closing Date (as defined
below), among the Company, the Guarantors (as defined below) and Wells Fargo
Bank Minnesota, National Association, as trustee (the "TRUSTEE"). The Initial
Notes and the Exchange Notes (as defined below) issuable in exchange therefor
are collectively referred to herein as the "NOTES." The Notes will be guaranteed
(the "GUARANTEES") by Horizon Personal Communications, Inc., an Ohio corporation
("PerCom"), Bright Personal Communications Services, LLC, an Ohio limited
liability company ("BRIGHT"), and by future subsidiaries of the Company that
become Restricted Subsidiaries (as defined in the Indenture) other than Foreign
Subsidiaries (as defined in the Indenture) (each of PerCom, Bright and such
future subsidiaries are referred to as a "GUARANTOR" and collectively as the
"GUARANTORS"). The Warrants will be issued pursuant to a warrant agreement (the
"WARRANT AGREEMENT"), to be dated as of the Closing Date, between the Company
and Wells Fargo Bank Minnesota, National Association, as warrant agent (the
"WARRANT AGENT"). The shares of Common Stock issuable upon exercise of the
Warrants are referred to herein, collectively, as the "WARRANT SHARES." The
Units, the Notes, the Guarantees and the Warrants are referred to herein,
collectively, as the "SECURITIES." Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Indenture or Warrant
Agreement, as applicable.
In addition, PerCom and Bright, as borrowers, and the Company, as
guarantor, expect to enter into a credit agreement (the "CREDIT AGREEMENT") with
several lending institutions that from time to time will be parties thereto (the
"LENDERS"), First Union National Bank, as administrative agent, WestDeutsche
Landesbank Girozentrale, as syndication agent and arranger and First Union
Securities, Inc., as sole lead arranger and sole book runner. The Credit
Agreement will provide for senior credit facilities in an aggregate amount of at
least $225,000,000 (the debt financing being provided to the Company under the
Credit Agreement being hereinafter referred to as the "SENIOR FINANCING"). The
Company also expects to enter into securities purchase agreements (the
"SECURITIES PURCHASE Agreement") with Apollo Management IV, L.P. and affiliated
funds to provide for the purchase and sale of shares of Series A Convertible
Preferred Stock, par value $0.0001 per share, and Series A-1 Convertible
Preferred Stock, par value $0.0001 per share (collectively, the "CONVERTIBLE
PREFERRED STOCK"), of the Company for an aggregate purchase price of up to
$126.5 million (the financing to be provided to the Company under the Securities
Purchase Agreement being hereinafter referred to as the "EQUITY FINANCING").
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1. OFFERING MEMORANDUM. The Units will be offered and sold to the
Initial Purchasers pursuant to one or more exemptions from the registration
requirements under the Securities Act of 1933, as amended (the "ACT"). The
Company and the Guarantors have prepared a preliminary offering memorandum,
dated September 18, 2000 (the "PRELIMINARY OFFERING MEMORANDUM") and a final
offering memorandum, dated September 19, 2000 (the "OFFERING Memorandum"),
relating to the Units.
Upon original issuance thereof, and until such time as the same is no
longer required pursuant to the Indenture and the Warrant Agreement, the Initial
Notes and the Warrants (and, as to both the Initial Notes and the Warrants, all
securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear a legend in substantially the following form,
together with such other legends as may be set forth in the Indenture or Warrant
Agreement, as applicable:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT
AS SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A
BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (i) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE ACT)(A "QIB"), (ii) IT
HAS ACQUIRED THIS SECURITY IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE ACT OR (iii) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT (AN
"IAI")),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER
THIS SECURITY EXCEPT (i) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (ii) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF
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RULE 144A, (iii) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF THE ACT, (iv) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE ACT, (v) TO AN IAI
THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING
TO THE TRANSFER OF THIS SECURITY (THE FORM OF WHICH CAN BE
OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF
AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, OR ANY
WARRANTS OR WARRANT SHARES, AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE ACT,
(vi) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT (AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY) OR (vii) 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
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
ACT. THE INDENTURE AND THE WARRANT AGREEMENT CONTAIN PROVISIONS
REQUIRING THE TRUSTEE OR THE WARRANT AGENT TO REFUSE TO REGISTER ANY
TRANSFER OF THESE SECURITIES IN VIOLATION OF THE FOREGOING."
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained herein, the Company agrees to
issue and sell to the Initial Purchasers, and each Initial Purchaser severally,
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and not jointly, agrees to purchase from the Company, the number of Units set
forth opposite the name of such Initial Purchaser in Schedule A attached hereto
at a purchase price equal to $507.39 per Unit (the "PURCHASE PRICE").
3. TERMS OF OFFERING. The Initial Purchasers have advised the Company
that the Initial Purchasers will make offers (the "EXEMPT RESALES") of the Units
purchased hereunder on the terms set forth in the Offering Memorandum, as
amended or supplemented, solely to (i) persons whom the Initial Purchasers
reasonably believe to be "qualified institutional buyers" as defined in Rule
144A under the Act ("QIBS") and (ii) persons permitted to purchase Units in
offshore transactions in reliance upon Regulation S under the Act (each, a
"REGULATION S PURCHASER") (such persons specified in clauses (i) and (ii) being
referred to herein as the "ELIGIBLE PURCHASERS"). The Initial Purchasers will
offer the Units to Eligible Purchasers initially at a price equal to $507.39 per
Unit. Such price may be changed at any time without notice.
Holders (including subsequent transferees) of the Units will have the
registration rights set forth in the registration rights agreement (the "NOTES
REGISTRATION RIGHTS AGREEMENT"), to be dated the Closing Date, in substantially
the form of Exhibit A hereto, and the registration rights agreement (the
"WARRANT REGISTRATION RIGHTS AGREEMENT") to be dated as of the Closing Date,
substantially in the form of Exhibit B hereto, for so long as such Initial
Notes, Warrants or Warrant Shares constitute "TRANSFER RESTRICTED SECURITIES"
(as defined in the Notes Registration Rights Agreement and the Warrant
Registration Rights Agreement, as applicable). Pursuant to the Notes
Registration Rights Agreement and the Warrant Registration Rights Agreement, (i)
the Company and the Guarantors will agree to file with the Securities and
Exchange Commission (the "COMMISSION") under the circumstances set forth
therein, (x) a registration statement under the Act (the "EXCHANGE OFFER
REGISTRATION STATEMENT") relating to the Company's 14% Senior Discount Notes due
2010 (the "EXCHANGE NOTES"), to be offered in exchange for the Initial Notes
(such offer to exchange being referred to as the "EXCHANGE OFFER") and the
Guarantees thereof and (y) a shelf registration statement pursuant to Rule 415
under the Act (the "NOTES SHELF REGISTRATION STATEMENT" and, together with the
Exchange Offer Registration Statement, the "NOTES REGISTRATION STATEMENTS")
relating to the resale by certain holders of the Initial Notes and to use their
respective best efforts to cause such Notes Registration Statements to be
declared and remain effective and usable for the periods specified in the Notes
Registration Rights Agreement and to consummate the Exchange Offer and (ii) the
Company will agree to file with the Commission under the circumstances set forth
therein a registration statement pursuant to Rule 415 under the Act (the
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"WARRANT SHELF REGISTRATION STATEMENT") relating to the resale of the Warrants,
the issuance of shares of Common Stock upon exercise of the Warrants and the
resale of the Warrant Shares and to use its best efforts to cause such Warrant
Shelf Registration Statement to be declared and remain effective and usable for
the periods specified in the Warrant Registration Rights Agreement. This
Agreement, the Indenture, the Notes, the Guarantees, the Warrants, the Warrant
Agreement, the Notes Registration Rights Agreement and the Warrant Registration
Rights Agreement are hereinafter sometimes referred to collectively as the
"OPERATIVE Documents."
4. DELIVERY AND PAYMENT.
(a) Delivery of, and payment of the Purchase Price for, the Units
shall be made at the offices of Arnall Golden & Gregory, LLP, 2800 One Atlantic
Center, 1201 West Peachtree Street, Atlanta, Georgia, or such other location as
may be mutually acceptable. Such delivery and payment shall be made at 9:00 a.m.
New York City time, on September 26, 2000, or at such other time on the same
date or such other date as shall be agreed upon by the Initial Purchasers and
the Company in writing. The time and date of such delivery and the payment for
the Units are herein called the "CLOSING DATE."
(b) One or more of the Initial Notes in definitive global form and one
or more of the Warrants in definitive global form, in each case registered in
the name of Cede & Co., as nominee of the Depository Trust Company ("DTC"),
having, in the case of the Initial Notes, an aggregate principal amount
corresponding to the aggregate principal amount of the Initial Notes
(collectively, the "GLOBAL NOTE") and representing, in the case of the Warrants,
the right to purchase the number of Warrant Shares corresponding to the
aggregate number of Warrant Shares (collectively, the "GLOBAL WARRANT"), shall
be delivered by the Company to the Initial Purchasers (or as the Initial
Purchasers direct) in each case with any transfer taxes thereon duly paid by the
Company against payment by the Initial Purchasers of the Purchase Price thereof
by wire transfer in same day funds to the order of the Company. The Global Note
and the Global Warrant shall be made available to the Initial Purchasers for
inspection not later than 9:30 a.m., New York City time, on the business day
immediately preceding the Closing Date.
5. AGREEMENTS OF THE COMPANY AND THE GUARANTORS. Each of the Company
and the Guarantors hereby agrees with the Initial Purchasers as follows:
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(a) To advise the Initial Purchasers promptly and, if requested
by the Initial Purchasers, confirm such advice in writing, (i) of the issuance
by any state securities commission of any stop order suspending the
qualification or exemption from qualification of any Securities for offering or
sale in any jurisdiction designated by the Initial Purchasers pursuant to
Section 5(e) hereof, or the initiation of any proceeding by any state securities
commission or any other federal or state regulatory authority for such purpose
and (ii) of the happening of any event during the period referred to in Section
5(c) below that makes any statement of a material fact made in the Preliminary
Offering Memorandum or the Offering Memorandum untrue or that requires any
additions to or changes in the Preliminary Offering Memorandum or the Offering
Memorandum in order to make the statements therein not misleading. The Company
and the Guarantors shall use their best efforts to prevent the issuance of any
stop order or order suspending the qualification or exemption of any Securities
under any state securities or Blue Sky laws and, if at any time any state
securities commission or other federal or state regulatory authority shall issue
an order suspending the qualification or exemption of any Securities under any
state securities or Blue Sky laws, the Company and the Guarantors shall use
their best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.
(b) To furnish the Initial Purchasers and those persons
identified by the Initial Purchasers to the Company as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum, and any amendments
or supplements thereto, as the Initial Purchasers may reasonably request for the
time period specified in Section 5(c). Subject to the Initial Purchasers'
compliance with their representations and warranties and agreements set forth in
Section 7 hereof, the Company consents to the use of the Preliminary Offering
Memorandum and the Offering Memorandum, and any amendments and supplements
thereto required pursuant hereto, by the Initial Purchasers in connection with
Exempt Resales.
(c) During such period as in the opinion of counsel for the
Initial Purchasers an Offering Memorandum is required by law to be delivered in
connection with Exempt Resales by the Initial Purchasers and in connection with
market-making activities of the Initial Purchasers for so long as any Securities
are outstanding, (i) not to make any amendment or supplement to the Offering
Memorandum of which the Initial Purchasers shall not previously have been
advised or to which the Initial Purchasers shall reasonably object after being
so advised and (ii) to prepare promptly upon the Initial Purchasers' reasonable
request, any amendment or supplement to the Offering Memorandum which may be
necessary or advisable in connection with such Exempt Resales or such
market-making activities.
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(d) If, during the period referred to in Section 5(c) above, any
event shall occur or condition shall exist as a result of which, in the opinion
of counsel to the Initial Purchasers, it becomes necessary to amend or
supplement the Offering Memorandum in order to make the statements therein, in
the light of the circumstances when such Offering Memorandum is delivered to an
Eligible Purchaser, not misleading, or if, in the opinion of counsel to the
Initial Purchasers, it is necessary to amend or supplement the Offering
Memorandum to comply with any applicable law, forthwith to prepare an
appropriate amendment or supplement to such Offering Memorandum so that the
statements therein, as so amended or supplemented, will not, in the light of the
circumstances when it is so delivered, be misleading, or so that such Offering
Memorandum will comply with applicable law, and to furnish to the Initial
Purchasers and such other persons as the Initial Purchasers may designate such
number of copies thereof as the Initial Purchasers may reasonably request.
(e) Prior to the sale of all Securities pursuant to Exempt
Resales as contemplated hereby, to cooperate with the Initial Purchasers and
counsel to the Initial Purchasers in connection with the registration or
qualification of the Securities for offer and sale to the Initial Purchasers and
pursuant to Exempt Resales under securities or Blue Sky laws as the Initial
Purchasers may request and to continue such registration or qualification in
effect so long as required for Exempt Resales and to file such consents to
service of process or other documents as may be necessary in order to effect
such registration or qualification; provided, however, that neither the Company
nor any Guarantor shall be required in connection therewith to qualify as a
foreign corporation in any jurisdiction in which it is not now so qualified or
to take any action that would subject it to general consent to service of
process or taxation other than as to matters and transactions relating to the
Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales in
any jurisdiction in which it is not now so subject.
(f) So long as any Securities are outstanding, (i) to mail and
make generally available as soon as practicable after the end of each fiscal
year to the record holders of the Securities a financial report of the Company
and its subsidiaries on a consolidated basis (and a similar financial report of
all unconsolidated subsidiaries, if any), all such financial reports to include
a consolidated balance sheet, a consolidated statement of operations, a
consolidated statement of cash flows and a consolidated statement of
shareholders' equity as of the end of and for such fiscal year, together with
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comparable information as of the end of and for the preceding year, certified by
the Company's independent public accountants and (ii) to mail and make generally
available as soon as practicable after the end of each quarterly period (except
for the last quarterly period of each fiscal year) to such holders, a
consolidated balance sheet, a consolidated statement of operations and a
consolidated statement of cash flows (and similar financial reports of all
unconsolidated subsidiaries, if any) as of the end of and for such period, and
for the period from the beginning of such year to the close of such quarterly
period, together with comparable information for the corresponding periods of
the preceding year.
(g) So long as any Securities are outstanding, to furnish to the
Initial Purchasers as soon as available copies of all reports or other
communications furnished by the Company or any of the Guarantors to its security
holders in their capacities as such or publicly available documents furnished to
or filed with the Commission or any national securities exchange on which any
class of securities of the Company or any of the Guarantors is listed and such
other publicly available information concerning the Company and/or its
subsidiaries as the Initial Purchasers may reasonably request.
(h) So long as any of the Securities remain outstanding and
during any period in which the Company and the Guarantors are not subject to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), to make available to any holder of such Securities in
connection with any sale thereof and any prospective purchaser of such
Securities from such holder, the information ("RULE 144A INFORMATION") required
by Rule 144A(d)(4) under the Act.
(i) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of the obligations of the Company
and the Guarantors under this Agreement, including: (i) the fees, disbursements
and expenses of counsel to the Company and the Guarantors and accountants of the
Company and the Guarantors in connection with the sale and delivery of the
Securities to the Initial Purchasers and pursuant to Exempt Resales, and all
other fees and expenses in connection with the preparation, printing, filing and
distribution of the Preliminary Offering Memorandum, the Offering Memorandum and
all amendments and supplements to any of the foregoing (including financial
statements), including the mailing and delivering of copies thereof to the
Initial Purchasers and persons designated by it in the quantities specified
herein, (ii) all costs and expenses related to the transfer and delivery of the
Securities to the Initial Purchasers and pursuant to Exempt Resales, including
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any transfer or other taxes payable thereon, (iii) all costs of printing or
reproducing this Agreement, the other Operative Documents and any other
agreements or documents in connection with the offering, purchase, sale or
delivery of the Securities, (iv) all expenses in connection with the
registration or qualification of the Securities and the Guarantees for offer and
sale under the securities or Blue Sky laws of the several states and all costs
of printing or producing any preliminary and supplemental Blue Sky memoranda in
connection therewith (including the filing fees and fees and disbursements of
counsel for the Initial Purchasers in connection with such registration or
qualification and memoranda relating thereto), (v) the cost of printing
certificates representing the Securities, (vi) all expenses and listing fees in
connection with the application for quotation of the Units, Initial Notes and
the Warrants in the National Association of Securities Dealers, Inc. ("NASD")
Automated Quotation System - PORTAL ("PORTAL"), (vii) the fees and expenses of
the Trustee and the Trustee's counsel in connection with the Indenture, the
Notes and the Guarantees, (viii) the fees and expenses of the Warrant Agent and
the Warrant Agent's counsel in connection with the Warrant Agreement and the
Warrants, (ix) the costs and charges of any transfer agent, registrar and/or
depositary (including DTC), (x) any fees charged by rating agencies for the
rating of the Securities, (xi) all costs and expenses of the Exchange Offer, any
Notes Registration Statement and any Warrant Shelf Registration Statement, as
set forth in the Notes Registration Rights Agreement and the Warrant
Registration Rights Agreement, and (xii) all other costs and expenses incident
to the performance of the obligations of the Company and the Guarantors
hereunder for which provision is not otherwise made in this Section.
(j) In accordance with the Warrant Agreement, to cause any
Warrant Shares, upon issuance, to be listed on the principal securities
exchanges, automated quotation systems or other markets within the United States
of America, if any, on which other shares of Common Stock are then listed and to
maintain any such listings of Warrant Shares for so long as such Warrant Shares
are outstanding.
(k) To use its best efforts to effect the inclusion of the Units,
Initial Notes and Warrants in PORTAL and to maintain the listing of the Units,
Initial Notes and Warrants on PORTAL for so long as the Units, Initial Notes and
Warrants are outstanding.
(l) To obtain the approval of DTC for "book-entry" transfer of
the Notes and the Warrants as Units and as separate securities, and to comply
with all of its agreements set forth in the representation letters of the
Company and the Guarantors to DTC relating to the approval of the Notes and the
Warrants as Units and as separate securities by DTC for "book-entry" transfer.
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(m) During the period beginning on the date hereof and continuing
to and including the Closing Date, not to offer, sell, contract to sell or
otherwise transfer or dispose of any securities of the Company or any Guarantor
or any warrants, rights or options to purchase or otherwise acquire securities
of the Company or any Guarantor substantially similar to any of the Securities
(other than (i) the Units, (ii) the Notes and the Guarantees, (iii) the
Warrants, (iv) the equity securities to be issued in connection with the Equity
Financing including those to be issued in connection with the conversion of a
$13.4 million short-term convertible note as described in the Preliminary
Offering Memorandum, (v) the warrants to be issued to Sprint pursuant to the
Sprint Agreements (as defined herein), and (v) commercial paper issued in the
ordinary course of business), without the prior written consent of the Initial
Purchasers.
(n) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act) that
would be integrated with the sale of the Securities to the Initial Purchasers or
pursuant to Exempt Resales in a manner that would require the registration of
any such sale of Securities under the Act.
(o) Not to voluntarily claim, and to actively resist any attempts
to claim, the benefit of any usury laws against the holders of any Securities.
(p) To cause the Exchange Offer to be made in the appropriate
form to permit Exchange Notes and guarantees thereof by the Guarantors
registered pursuant to the Act to be offered in exchange for the Initial Notes
and the Guarantees and to comply with all applicable federal and state
securities laws in connection with the Exchange Offer.
(q) To comply with all of its agreements set forth in the Warrant
Agreement.
(r) To comply with all of its agreements set forth in the Warrant
Registration Rights Agreement.
(s) To comply with all of its agreements set forth in the Notes
Registration Rights Agreement.
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(t) To use its best efforts to do and perform all things required
or necessary to be done and performed under this Agreement by it prior to the
Closing Date and to satisfy all conditions precedent to the delivery of the
Units.
6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND THE
GUARANTORS. As of the date hereof, each of the Company and the Guarantors,
jointly and severally, represents and warrants to, and agrees with, the Initial
Purchasers that:
(a) The Preliminary Offering Memorandum, as of its date, and the
Offering Memorandum do not, and any supplement or amendment to them will not,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
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 thereto)
based upon information relating to the Initial Purchasers furnished to the
Company in writing by the Initial Purchasers expressly for use therein. No stop
order preventing the use of the Preliminary Offering Memorandum or the Offering
Memorandum, or any amendment or supplement thereto, or any order asserting that
any of the transactions contemplated by this Agreement are subject to the
registration requirements of the Act, has been issued.
(b) Each of the Company and its subsidiaries has been duly
organized, is validly existing in good standing under the laws of its
jurisdiction of organization and has the power and authority to carry on its
business as described in the Preliminary Offering Memorandum and the Offering
Memorandum and to own, lease and operate its properties, and each is duly
qualified and is in good standing as a foreign corporation or limited liability
company 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 on the business, prospects, financial condition or
results of operations of the Company and its subsidiaries, taken as a whole (a
"MATERIAL ADVERSE EFFECT").
(c) All outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid, nonassessable and
not subject to any preemptive or similar rights. The authorized capital stock of
the Company conforms to the description thereof contained in the Offering
Memorandum.
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(d) The entities listed on Schedule B hereto are the only
subsidiaries, direct or indirect, of the Company. All of the outstanding shares
of capital stock or membership interests of each of the Company's subsidiaries
have been duly authorized and validly issued and are fully paid and
nonassessable, and are owned by the Company, directly or indirectly through one
or more subsidiaries, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature (each, a "LIEN"), except as
expressly provided under the Credit Agreement and the Sprint PCS Management
Agreement, and except for security interests granted to the Rural Telephone
Finance Cooperative, which will be released on the Closing Date.
(e) This Agreement has been duly authorized, executed and
delivered by the Company and each of the Guarantors. This Agreement conforms to
the description hereof contained in the Offering Memorandum.
(f) The Warrant Agreement has been duly authorized by the Company
and, on the Closing Date, will have been validly executed and delivered by the
Company. When the Warrant Agreement has been validly executed and delivered by
the Company, the Warrant Agreement will be a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(g) The Warrants have been duly authorized by the Company and, on
the Closing Date, will have been validly executed and delivered by the Company.
When the Warrants have been executed and countersigned in accordance with the
provisions of the Warrant Agreement and delivered to and paid for by the Initial
Purchasers as part of a Unit, the Warrants will be entitled to the benefits of
the Warrant Agreement and will be valid and binding obligations of the Company
enforceable in accordance with their terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability. On the Closing Date, the Warrants will conform to the description
thereof contained in the Offering Memorandum.
(h) The Warrant Shares have been duly and validly authorized for
issuance by the Company and, when issued pursuant to the terms of the Warrants
14
and the Warrant Agreement, will be validly issued, fully paid, nonassessable and
not subject to any preemptive or similar rights.
(i) The Indenture has been duly authorized by the Company and
each of the Guarantors and, on the Closing Date, will have been validly executed
and delivered by the Company and each of the Guarantors. When the Indenture has
been validly executed and delivered by the Company and each of the Guarantors,
the Indenture will be a valid and binding agreement of the Company and each
Guarantor, enforceable against the Company and each Guarantor in accordance with
its terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability. 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) The Initial Notes have been duly authorized and, on the
Closing Date, will have been validly executed and delivered by the Company. When
the Initial Notes have been issued, executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid for by the
Initial Purchasers in accordance with the terms of this Agreement as part of a
Unit, the Initial Notes will be entitled to the benefits of the Indenture and
will be valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability. On the Closing Date, the Initial Notes will conform to the
description thereof contained in the Offering Memorandum.
(k) The Exchange Notes have been duly authorized by the Company.
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 entitled to the benefits of the Indenture and will be the valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
15
(ii) rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability. When the Exchange
Notes are issued, authenticated and delivered, the Exchange Notes will conform
to the description thereof contained in the Offering Memorandum.
(l) The Guarantee to be endorsed on the Initial Notes by each
Guarantor has been duly authorized by such Guarantor and, on the Closing Date,
will have been duly executed and delivered by each such Guarantor. When the
Initial Notes have been issued, executed and authenticated in accordance with
the Indenture and delivered to and paid for by the Initial Purchasers in
accordance with the terms of this Agreement as part of the Unit, the Guarantee
of each Guarantor endorsed thereon will be entitled to the benefits of the
Indenture and will be the valid and binding obligation of such Guarantor,
enforceable against such Guarantor in accordance with its terms except as (i)
the enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration and
the availability of equitable remedies may be limited by equitable principles of
general applicability. On the Closing Date, the Guarantees to be endorsed on the
Initial Notes will conform to the description thereof contained in the Offering
Memorandum.
(m) The Guarantee to be endorsed on the Exchange Notes by each
Guarantor has been duly authorized by such Guarantor and, when issued, will have
been duly executed and delivered by each such Guarantor. When the 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 be entitled to the benefits of the Indenture and will be the valid
and binding obligation of such Guarantor, enforceable against such Guarantor in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability. When
the Exchange Notes are issued, authenticated and delivered, the Guarantees to be
endorsed on the Exchange Notes will conform to the description thereof in the
Offering Memorandum.
(n) The Notes Registration Rights Agreement has been duly
authorized by the Company and each of the Guarantors and, on the Closing Date,
will have been duly executed and delivered by the Company and each of the
Guarantors. When the Notes Registration Rights Agreement has been duly executed
and delivered, the Notes Registration Rights Agreement will be a valid and
binding agreement of the Company and each of the Guarantors, enforceable against
the Company and such Guarantor in accordance with its terms except as (i) the
16
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability. On the Closing Date, the Notes Registration Rights
Agreement will conform to the description thereof contained in the Offering
Memorandum.
(o) The Warrant Registration Rights Agreement has been duly
authorized by the Company and, on the Closing Date, will have been duly executed
and delivered by the Company. When the Warrant Registration Rights Agreement has
been duly executed and delivered, the Warrant Registration Rights Agreement will
be a valid and binding agreement of the Company, enforceable against the Company
in accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability. On the
Closing Date, the Warrant Registration Rights Agreement will conform to the
description thereof contained in the Offering Memorandum.
(p) Each of the Company and the Guarantors has duly and validly
authorized the issuance of the Initial Notes, the Guarantees and the Warrants as
Units.
(q) The Units conform to the description thereof contained in the
Offering Memorandum.
(r) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws (or similar governing documents)
or in default in any material respect 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.
(s) The execution, delivery and performance of this Agreement and
the other Operative Documents by the Company and each of the Guarantors,
compliance by the Company and each such Guarantor with all provisions hereof and
thereof and the consummation of the transactions contemplated hereby and thereby
will not (i) require any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except such as may
be required under the securities or Blue Sky laws of the various states), (ii)
conflict with or constitute a breach of any of the terms or provisions of, or a
17
default under, the charter or by-laws (or similar governing documents) of the
Company or any of its subsidiaries or 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 (other than in connection with the debt obligations
to the Rural Telephone Finance Cooperative which obligation will be paid in full
on the Closing Date), (iii) violate or conflict with any applicable law or any
rule, regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over the Company, any of its subsidiaries or
their respective property, (iv) result in the imposition or creation of (or the
obligation to create or impose) a Lien under, any agreement or instrument 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, or (v) result
in the termination, suspension or revocation of any Authorization (as defined
below) of the Company or any of its subsidiaries or result in any other
impairment of the rights of the holder of any such Authorization.
(t) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is or could be a
party or to which any of their respective property is or could be subject, which
might result, singly or in the aggregate, in a Material Adverse Effect.
(u) Neither the Company nor any of its subsidiaries has violated
any foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), any
provisions of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or any provisions of the Foreign Corrupt Practices Act or the rules
and regulations promulgated thereunder, except for such violations which, singly
or in the aggregate, would not have a Material Adverse Effect.
(v) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any Authorization, any related constraints on operating
activities and any potential liabilities to third parties) which would, singly
or in the aggregate, have a Material Adverse Effect.
18
(w) Each of the Company and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "AUTHORIZATION") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a Material Adverse Effect. Each such
Authorization is valid and in full force and effect and each of the Company and
its subsidiaries is in compliance with all the terms and conditions thereof and
with the rules and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing body)
which allows or, after notice or lapse of time or both, would allow, revocation,
suspension or termination of any such Authorization or results or, after notice
or lapse of time or both, would result in any other impairment of the rights of
the holder of any such Authorization; and such Authorizations contain no
restrictions that are burdensome to the Company or any of its subsidiaries;
except where such failure to be valid and in full force and effect or to be in
compliance, the occurrence of any such event or the presence of any such
restriction would not, singly or in the aggregate, have a Material Adverse
Effect.
(x) The accountants that have certified the financial statements
and supporting schedules included in the Preliminary Offering Memorandum and the
Offering Memorandum are independent public accountants with respect to the
Company and the Guarantors, as required by the Act and the Exchange Act. The
historical financial statements, together with related schedules and notes, set
forth in the Preliminary Offering Memorandum and 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.
(y) The historical financial statements, together with related
schedules and notes forming part of the Offering Memorandum (and any amendment
or supplement thereto), present fairly the consolidated financial position,
results of operations and changes in financial position of the Company and its
subsidiaries on the basis stated in the Offering Memorandum at the respective
dates or for the respective periods to which they apply; such statements and
19
related schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and statistical
information and data set forth in the Offering Memorandum (and any amendment or
supplement thereto) are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the books and
records of the Company.
(z) The pro forma financial statements included in the
Preliminary Offering Memorandum and the Offering Memorandum have been prepared
on a basis consistent with the historical financial statements of the Company
and its subsidiaries and give effect to assumptions used in the preparation
thereof on a reasonable basis and in good faith and present fairly the
historical and proposed transactions contemplated by the Preliminary Offering
Memorandum and the Offering Memorandum; and such pro forma financial statements
comply as to form in all material respects with the requirements applicable to
pro forma financial statements included in registration statements on Form S-1
under the Act. The other pro forma financial and statistical information and
data included in the Offering Memorandum are, in all material respects,
accurately presented and prepared on a basis consistent with the proforma
financial statements.
(aa) Except as disclosed in the Preliminary Offering Memorandum,
there are no contracts, agreements or understandings between the Company or any
Guarantor and any person granting such person the right to require the Company
or such Guarantor to file a registration statement under the Act with respect to
any securities of the Company or such Guarantor or to require the Company or
such Guarantor to include such securities with the Notes and Guarantees
registered pursuant to any Notes Registration Statement or the Warrants or
Warrant Shares registered pursuant to any Warrant Shelf Registration Statement.
(bb) Neither the Company nor any of its subsidiaries 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
Securities to violate Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R.
Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the
Federal Reserve System.
(cc) None of the Company or any of the Guarantors are, and, after
giving effect to the offering and sale of the Securities and the application of
the proceeds thereof as described in the Offering Memorandum, will be, an
"investment company" as such term is defined in the Investment Company Act of
1940, as amended.
20
(dd) No "nationally recognized statistical rating organization"
as such term is defined for purposes of Rule 436(g)(2) under the 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.
(ee) Since the respective dates as of which information is given
in the Offering Memorandum other than as set forth in the Offering Memorandum
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement), (i) there has not occurred any material adverse change or any
development involving a prospective material adverse change in the condition,
financial or otherwise, or the earnings, business, management or operations of
the Company and its subsidiaries, taken as a whole, (ii) there has not been any
material adverse change or any development involving a prospective material
adverse change in the capital stock or in the long-term debt of the Company or
any of its subsidiaries and (iii) other than in the ordinary course of business,
neither the Company nor any of its subsidiaries has incurred any material
liability or obligation, direct or contingent.
(ff) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its date, contains all the information specified in, and
meeting the requirements of, Rule 144A(d)(4) under the Act.
(gg) When the Securities are issued and delivered pursuant to
this Agreement, none of the Securities will be of the same class (within the
meaning of Rule 144A under the Act) as any security of the Company or the
Guarantors that is listed on a national securities exchange registered under
Section 6 of the Exchange Act or that is quoted in a United States automated
inter-dealer quotation system.
(hh) No form of general solicitation or general advertising (as
defined in Regulation D under the Act) was used by the Company, the Guarantors
or any of their respective representatives (other than the Initial Purchasers,
as to whom the Company and the Guarantors make no representation) in connection
with the offer and sale of the 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. Except as set forth in the Preliminary
Offering Memorandum, no securities of the same class as any of the Securities
have been issued and sold by the Company within the six-month period immediately
prior to the date hereof.
21
(ii) Prior to the effectiveness of any Notes Registration
Statement, the Indenture is not required to be qualified under the TIA.
(jj) None of the Company, the Guarantors nor any of their
respective affiliates or any person acting on its or their behalf (other than
the Initial Purchasers, as to whom the Company and the Guarantors make no
representation) has engaged or will engage in any directed selling efforts
within the meaning of Regulation S under the Act ("REGULATION S") with respect
to any of the Securities.
(kk) None of the Company or the Guarantors shall have taken or
omitted to take any action that shall have resulted in any Securities offered
and sold in reliance on Regulation S not to have been offered and sold only in
offshore transactions.
(ll) The sale of the Securities pursuant to Regulation S is not
part of a plan or scheme to evade the registration provisions of the Act.
(mm) No registration under the Act of the Securities is required
for the sale of the Securities to the Initial Purchasers as contemplated hereby
or for the Exempt Resales assuming the accuracy of the Initial Purchasers'
representations and warranties and agreements set forth in Section 7 hereof.
(nn) The Company, the Guarantors and their respective affiliates
and all persons acting on their behalf (other than the Initial Purchasers, as to
whom the Company and the Guarantors make no representation) have complied with
and will comply with the offering restrictions requirements of Regulation S in
connection with the offering of the Securities outside the United States and, in
connection therewith, the Offering Memorandum will contain the disclosure
required by Rule 902(h).
(oo) The Securities sold in reliance on Regulation S will be
represented upon issuance by a temporary global security that may not be
exchanged for definitive securities until the expiration of the 40-day
restricted period referred to in Rule 903(b)(3) of the Act and only upon
22
certification of beneficial ownership of such Securities by non-U.S. persons or
U.S. persons who purchased such Securities in transactions that were exempt from
the registration requirements of the Act.
(pp) No relationship, direct or indirect, exists between or among
the Company or any of its subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of its
subsidiaries on the other hand, which is required by the Act to be described in
a registration statement on Form S-1 under the Act which is not so described in
the Offering Memorandum.
(qq) All indebtedness of the Company and the Guarantors (or any
of their respective predecessors) that will be repaid with the proceeds of the
issuance and sale of the Units was incurred, and the indebtedness represented by
the Initial Notes is being incurred, for proper purposes and in good faith and
each of the Company and the Guarantors (or any of their respective predecessors)
was, at the time of the incurrence of such indebtedness that will be repaid with
the proceeds of the issuance and sale of the Units, and will be on the Closing
Date (after giving effect to the application of the proceeds from the issuance
of the Units) solvent, and had at the time of the incurrence of such
indebtedness that will be repaid with the proceeds of the issuance and sale of
the Units and will have on the Closing Date (after giving effect to the
application of the proceeds from the issuance of the Units) sufficient capital
for carrying on their respective business and were, at the time of the
incurrence of such indebtedness that will be repaid with the proceeds of the
issuance and sale of the Units, and will be on the Closing Date (after giving
effect to the application of the proceeds from the issuance of the Units) able
to pay their respective debts as they mature.
(rr) The Company has provided the Initial Purchasers and counsel
for the Initial Purchasers true and correct copies of each and every agreement
(or, if an agreement has not been reduced to writing, a written enumeration of
the terms of such agreement) between and among the Company and any Related Party
(as such term is defined below), on the one hand, and Sprint PCS and any Related
Party on the other, including in each case any amendments and addenda thereto
and restatements thereof, as in effect on the date hereof (collectively, the
"SPRINT AGREEMENTS"); all material documents and correspondence relating to such
agreements; and such other documents produced by the Company and/or its agents
23
or otherwise in its possession as may be necessary to interpret such agreements,
documents and correspondence and to assess the impact thereof on the business
and financial condition of the Company. For purposes of this subparagraph and
the immediately following subparagraph, "RELATED PARTY" shall have the meaning
given to such term in the Schedule of Definitions incorporated by reference in
those certain Sprint PCS Management Agreements, as amended, executed by PerCom
and Sprint PCS as of June 8, 1998 and by Bright and Sprint PCS as of October 13,
1999 (the "SPRINT PCS MANAGEMENT AGREEMENTS").
(ss) Each of the Sprint Agreements (A) has been duly authorized,
executed and delivered by, (B) constitutes the valid and binding obligation of,
and (C) is enforceable in accordance with its terms against PerCom or Bright, as
the case may be, and any Related Party, to the extent each is a party thereto.
On the Closing Date, each of the Sprint Agreements will conform to the
description thereof contained in the Offering Memorandum in all material
respects.
(tt) At the Closing Date, the Company will have provided the
Initial Purchasers and counsel for the Initial Purchasers a true and correct
copy of a Consent and Agreement among Sprint Spectrum L.P., SprintCom, Inc.,
Sprint Communications Company, L.P., the Company, the administrative agent and
the syndication agent for the lenders under the Credit Agreement, including any
amendments thereto and restatements thereof, as in effect on the date thereof
(the "CONSENT AND AGREEMENT"); all material documents and correspondence
relating to such Consent and Agreement; and such other documents produced by the
Company and/or its agents or otherwise in its possession as may be necessary to
interpret such Consent and Agreement, documents and correspondence and to assess
the impact thereof on the business and financial condition of the Company.
(uu) At the Closing Date, the Company will have provided the
Initial Purchasers and counsel for the Initial Purchasers true and correct
copies of each and every agreement, instrument or other document that is or may
be required for borrowing by the Company under the Senior Financing (or, if an
agreement relating to the Senior Financing has not been reduced to writing, a
written enumeration of the terms of such agreement) and the Consent and
Agreement, including in each case any amendments thereto and restatements
thereof, as in effect on the date thereof (collectively, the "BANK FINANCING
AGREEMENTS"); all material documents and correspondence relating to such
agreements; and such other documents produced by the Company and/or its agents
or otherwise in its possession as may be necessary to interpret such agreements,
documents and correspondence and to assess the impact thereof on the business
and financial condition of the Company.
(vv) At the Closing Date, each of the Bank Financing Agreements,
including the Consent and Agreement, (A) will have been duly authorized,
24
executed and delivered by, (B) constitute the valid and binding obligation of,
and (C) will be enforceable in accordance with their respective terms against,
the Company and its affiliates, to the extent each is a party thereto. On the
Closing Date, each of the Bank Financing Agreements, including the Consent and
Agreement, will conform to the description thereof contained in the Offering
Memorandum in all material respects.
(ww) The Bank Financing Agreements constitute all of the
documentation and agreements necessary for the Company to receive disbursements
under the Bank Financing in accordance with the terms of the Credit Agreement.
(xx) At the Closing Date, the Company will have provided the
Initial Purchasers and counsel for the Initial Purchasers true and correct
copies of each and every agreement, instrument or other document that is or may
be required for the Company to receive the proceeds of the Equity Financing (or,
if an agreement relating to the Equity Financing has not been reduced to
writing, a written enumeration of the terms of such agreement), including in
each case any amendments thereto and restatements thereof, as in effect on the
date thereof (collectively, the "EQUITY FINANCING AGREEMENTS"); all material
documents and correspondence relating to such agreements; and such other
documents produced by the Company and/or its agents or otherwise in its
possession as may be necessary to interpret such agreements, documents and
correspondence and to assess the impact thereof on the business and financial
condition of the Company.
(yy) At the Closing Date, each of the Equity Financing Agreements
(A) will have been duly authorized, executed and delivered by, (B) constitute
the valid and binding obligation of, and (C) will be enforceable in accordance
with their respective terms against, the Company and its affiliates, to the
extent each is a party thereto. On the Closing Date, each of the Equity
Financing Agreements will conform to the description thereof contained in the
Offering Memorandum in all material respects.
(zz) The Equity Financing Agreements constitute all of the
documentation and agreements necessary for the Company to receive proceeds of
the Equity Financing in accordance with the terms of the Securities Purchase
Agreement.
(aaa) The execution, delivery and performance of the Sprint
Agreements, the Bank Financing Agreements and the Equity Financing Agreements by
the Company and any of its affiliates that are a party thereto, the compliance
by the Company and such affiliates with all the provisions thereof and the
consummation of the transactions contemplated thereby do not (A) require any
25
consent, approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as have already been obtained
or as may be required under applicable securities laws for purposes of that
certain Registration Rights Agreement to be dated the Closing Date as described
in the Preliminary Offering Memorandum), (B) conflict with or constitute a
breach of any of the terms or provisions of, or a default under (or an event
which with notice or lapse of time, or both, would constitute a breach of or a
default under), the certificate of incorporation or by-laws (or similar
governing document) of the Company or any of its subsidiaries or 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, (C) violate or conflict
with any applicable law or any rule, regulation, judgment, order or decree of
any court or any governmental body or agency having jurisdiction over the
Company, any of its subsidiaries or their respective property or (D) result in
the suspension, termination or revocation of any material Authorization of the
Company or any of its subsidiaries or any other impairment of the rights of the
holder of any such Authorization.
(bbb) Each of the Sprint Agreements (including, without
limitation, the Sprint PCS Management Agreement), the Consent and Agreement, the
Bank Financing Agreements and the Equity Financing Agreements (collectively, the
"PCS AGREEMENTS"), will be, and the PCS Agreements viewed as a whole will be,
consistent with the terms and conditions of the License (as such term is defined
in the Sprint PCS Management Agreement) and not otherwise contrary to Federal
Communications Commission policies, rules and regulations or other applicable
law, rules or regulations.
(ccc) Each certificate signed by any officer of the Company or
any Guarantor and delivered to the Initial Purchasers or counsel for the Initial
Purchasers shall be deemed to be a representation and warranty by the Company or
such Guarantor to the Initial Purchasers as to the matters covered thereby.
The Company acknowledges that the Initial Purchasers and, for
purposes of the opinions to be delivered to the Initial Purchaser pursuant to
Section 9 hereof, counsel to the Company and the Guarantors and counsel to the
Initial Purchasers will rely upon the accuracy and truth of the foregoing
representations and hereby consents to such reliance.
26
7. INITIAL PURCHASERS' REPRESENTATIONS AND WARRANTIES. The Initial
Purchasers represent and warrant to, and agree with, the Company and the
Guarantors:
(a) Such Initial Purchaser is either a QIB or an Accredited
Institution, in either case, with such knowledge and experience in financial and
business matters as is necessary in order to evaluate the merits and risks of an
investment in the Securities.
(b) Such Initial Purchaser (A) is not acquiring the Securities
with a view to any distribution thereof or with any present intention of
offering or selling any of the Securities in a transaction that would violate
the Act or the securities laws of any state of the United States or any other
applicable jurisdiction and (B) will be reoffering and reselling the Securities
only to (y) QIBs in reliance on the exemption from the registration requirements
of the Act provided by Rule 144A and (z) in offshore transactions in reliance
upon Regulation S under the Act.
(c) Such Initial Purchaser agrees that no form of general
solicitation or general advertising (within the meaning of Regulation D under
the Act) has been or will be used by such Initial Purchaser or any of its
representatives in connection with the offer and sale of the Securities pursuant
hereto, including, but not limited to, articles, notices or other communications
published in any newspaper, magazine or similar medium or broadcast over
television or radio, or any seminar or meeting whose attendees have been invited
by any general solicitation or general advertising.
(d) Such Initial Purchaser agrees that, in connection with Exempt
Resales, such Initial Purchaser will solicit offers to buy the Securities only
from, and will offer to sell the Securities only to, Eligible Purchasers. Each
Initial Purchaser further agrees that it will offer to sell the Securities only
to, and will solicit offers to buy the Securities only from (A) Eligible
Purchasers that the Initial Purchaser reasonably believes are QIBs and (B)
Regulation S Purchasers, in each case, that agree that (x) the Securities
purchased by them may be resold, pledged or otherwise transferred within the
time period referred to under Rule 144(k) (taking into account the provisions of
Rule 144(d) under the Act, if applicable) under the Act, as in effect on the
date of the transfer of such Securities, only (I) to the Company or any of its
subsidiaries, (II) to a person whom the seller reasonably believes is a QIB
27
purchasing for its own account or for the account of a QIB in a transaction
meeting the requirements of Rule 144A under the Act, (III) in an offshore
transaction (as defined in Rule 902 under the Act) meeting the requirements of
Rule 904 of the Act, (IV) in a transaction meeting the requirements of Rule 144
under the Act, (V) to an Accredited Institution that, prior to such transfer,
furnishes the Trustee a signed letter containing certain representations and
agreements relating to the registration of transfer of such Securities and, if
such transfer is in respect of an aggregate principal amount of Initial Notes
less than $250,000 or any Units, Warrants or Warrant Shares, an opinion of
counsel acceptable to the Company that such transfer is in compliance with the
Act, (VI) in accordance with another exemption from the registration
requirements of the Act (and based upon an opinion of counsel acceptable to the
Company) or (VII) 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 (y) they will deliver to
each person to whom such Securities or an interest therein is transferred a
notice substantially to the effect of the foregoing.
(e) Such Initial Purchaser and its affiliates or any person
acting on its or their behalf have not engaged or will not engage in any
directed selling efforts within the meaning of Regulation S with respect to the
Securities.
(f) The Securities offered and sold by such Initial Purchaser
pursuant hereto in reliance on Regulation S have been and will be offered and
sold only in offshore transactions.
(g) The sale of the Securities offered and sold by such Initial
Purchaser pursuant hereto in reliance on Regulation S is not part of a plan or
scheme to evade the registration provisions of the Act.
(h) Such Initial Purchaser agrees that it has not offered or sold
and will not offer or sell the Securities in the United States or to, or for the
benefit or account of, a U.S. Person (other than a distributor), in each case,
as defined in Rule 902 under the Act (i) as part of its distribution at any time
and (ii) otherwise until 40 days after the later of the commencement of the
offering of the Units pursuant hereto and the Closing Date, other than in
accordance with Regulation S of the Act or another exemption from the
registration requirements of the Act. Such Initial Purchaser agrees that, during
such 40-day restricted period, it will not cause any advertisement with respect
to the Securities (including any "tombstone" advertisement) to be published in
any newspaper or periodical or posted in any public place and will not issue any
circular relating to the Securities, except such advertisements as are permitted
by and include the statements required by Regulation S.
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(i) Such Initial Purchaser agrees that, at or prior to
confirmation of a sale of Securities by it to any distributor, dealer or person
receiving a selling concession, fee or other remuneration during the 40-day
restricted period referred to in Rule 903(b)(3) under the Act, it will send to
such distributor, dealer or person receiving a selling concession, fee or other
remuneration 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, as amended (the "SECURITIES ACT"),
and may not be offered and sold within the United States or to,
or for the account or benefit of, U.S. persons (i) as part of
your distribution at any time or (ii) otherwise until 40 days
after the later of the commencement of the Offering and the
Closing Date, except in either case in accordance with Regulation
S under the Securities Act (or Rule 144A or to Accredited
Institutions in transactions that are exempt from the
registration requirements of the Securities Act), and in
connection with any subsequent sale by you of the Securities
covered hereby in reliance on Regulation S during the period
referred to above to any distributor, dealer or person receiving
a selling concession, fee or other remuneration, you must deliver
a notice to substantially the foregoing effect. Terms used above
have the meanings assigned to them in Regulation S."
(j) Such Initial Purchaser agrees that the Securities offered and
sold in reliance on Regulation S will be represented upon issuance by global
securities that may not be exchanged for definitive securities until the
expiration of the 40-day restricted period referred to in Rule 903(b)(3) of the
Act and only upon certification of beneficial ownership of such Securities by
non-U.S. persons or U.S. persons who purchased such Securities in transactions
that were exempt from the registration requirements of the Act.
Such Initial Purchaser acknowledges that the Company and the
Guarantors and, for purposes of the opinions to be delivered to each Initial
Purchaser pursuant to Section 9 hereof, counsel to the Company and the
Guarantors and counsel to the Initial Purchaser will rely upon the accuracy and
truth of the foregoing representations and such Initial Purchaser hereby
consents to such reliance.
29
8. INDEMNIFICATION.
(a) The Company and each Guarantor agree, jointly and severally,
to indemnify and hold harmless each Initial Purchaser, its directors, its
officers and each person, if any, who controls such Initial Purchaser within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and judgments
(including, without limitation, any legal or other expenses incurred in
connection with investigating or defending any matter, including any action,
that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Offering Memorandum (or any amendment or
supplement thereto), the Preliminary Offering Memorandum or any Rule 144A
Information provided by the Company or any Guarantor to any holder or
prospective purchaser of Securities pursuant to Section 5(h) or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or judgments are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to the Initial Purchaser furnished in
writing to the Company by such Initial Purchaser (and not with respect to the
information provided by any other Initial Purchaser); provided, however, that
the foregoing indemnity agreement with respect to any Preliminary Offering
Memorandum shall not inure to the benefit of any Initial Purchaser who failed to
deliver a Final Offering Memorandum, as then amended or supplemented, (so long
as the Offering Memorandum and any amendment or supplement thereto was provided
by the Company to the several Initial Purchasers in the requisite quantity and
on a timely basis to permit proper delivery on or prior to the Closing Date) to
the person asserting any losses, claims, damages, liabilities or judgements
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Offering Memorandum, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, if such material
misstatement or omission or alleged material misstatement or omission was cured
in the Offering Memorandum, as so amended or supplemented.
(b) Each Initial Purchaser, severally and not jointly, agrees to
indemnify and hold harmless the Company and the Guarantors, and their respective
directors and officers and each person, if any, who controls (within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act) the Company or the
Guarantors, to the same extent as the foregoing indemnity from the Company and
the Guarantors to the Initial Purchasers but only with reference to information
30
relating to the Initial Purchaser furnished in writing to the Company by such
Initial Purchasers (and not with respect to the information provided by any
other Initial Purchaser) expressly for use in the Preliminary Offering
Memorandum or the Offering Memorandum.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), the Initial Purchasers shall not be required to
assume the defense of such action pursuant to this Section 8(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
the Initial Purchasers). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction 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) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by Donaldson, Lufkin & Jenrette Securities Corporation, in the case
of the parties indemnified pursuant to Section 8(a), and by the Company, in the
case of parties indemnified pursuant to Section 8(b). The indemnifying party
shall indemnify and hold harmless the indemnified party from and against any and
all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action (i) effected with its written consent or (ii) effected
without its written consent if the settlement is entered into more than twenty
business days after the indemnifying party shall have received a request from
31
the indemnified party for reimbursement for the fees and expenses of counsel (in
any case where such fees and expenses are at the expense of the indemnifying
party) and, prior to the date of such settlement, the indemnifying party shall
have failed to comply with such reimbursement request. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the indemnified party
is or could have been a party and indemnity or contribution may be or could have
been sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability on claims that are or could have been the subject
matter of such action and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party.
(d) To the extent the indemnification provided for in this
Section 8 is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Initial Purchasers on the
other hand from the offering of the Units or (ii) if the allocation provided by
clause 8(d)(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
8(d)(i) above but also the relative fault of the Company and the Guarantors, on
the one hand, and the Initial Purchasers, on the other hand, in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Guarantors, on the one hand and the Initial Purchasers, on the other hand, shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Units (after underwriting discounts and commissions, but before
deducting expenses) received by the Company, and the total discounts and
commissions received by the Initial Purchasers bear to the total price to
investors of the Units, (in each case as set forth on Schedule B attached
hereto). The relative fault of the Company and the Guarantors, on the one hand,
and the Initial Purchasers, on the other hand, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Guarantors, on the one
hand, or the Initial Purchasers, on the other hand, and the parties' relative
32
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Guarantors, and the Initial Purchasers agree
that it would not be just and equitable if contribution pursuant to this Section
8(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 the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such indemnified party in connection with investigating or defending any
matter, including any action, that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 8, the Initial Purchasers shall not be required to contribute any amount
in excess of the amount by which the total discounts and commissions received by
such Initial Purchaser exceeds the amount of any damages which the Initial
Purchaser has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Initial Purchasers' obligations to contribute pursuant to
this Section 8(d) are several in proportion to the respective number of Units
purchased by each of the Initial Purchasers hereunder and not joint.
(e) The remedies provided for in this Section 8 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
9. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The obligations of
the Initial Purchasers to purchase the Units under this Agreement are subject to
the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the
Guarantors 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.
(b) On or after the date hereof, (i) there shall not have
occurred any downgrading, suspension or withdrawal of, nor shall any notice have
been given of any potential or intended downgrading, suspension or withdrawal
of, or of any review (or of any potential or intended review) for a possible
33
change that does not indicate the direction of the possible change in, any
rating of the Company or any Guarantor or any securities of the Company or any
Guarantor (including, without limitation, the placing of any of the foregoing
ratings on credit watch with negative or developing implications or under review
with an uncertain direction) by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act, (ii) there shall not have occurred any change, nor shall any notice have
been given of any potential or intended change, in the outlook for any rating of
the Company or any Guarantor or any securities of the Company or any Guarantor
by any such rating organization and (iii) no such rating organization shall have
given notice that it has assigned (or is considering assigning) a lower rating
to any of the Securities than that on which the Units were marketed.
(c) Since the respective dates as of which information is given
in the Offering Memorandum other than as set forth in the Offering Memorandum
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement), (i) there shall not have occurred any change or any development
involving a prospective change in the condition, financial or otherwise, or the
earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there shall not have been any change or any
development involving a prospective change in the capital stock or in the
long-term debt of the Company or any of its subsidiaries and (iii) neither the
Company nor any of its subsidiaries shall have incurred any liability or
obligation, direct or contingent, the effect of which, in any such case
described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market the
Securities on the terms and in the manner contemplated in the Offering
Memorandum.
(d) You shall have received on the Closing Date a certificate
dated the Closing Date, signed by the Chief Executive Officer and the Chief
Financial Officer of the Company and each of the Guarantors, confirming the
matters set forth in Sections 6(dd), 9(a) and 9(b) and stating that each of the
Company and the Guarantors has complied with all the agreements and satisfied
all of the conditions herein contained and required to be complied with or
satisfied on or prior to the Closing Date.
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Initial Purchasers), dated the Closing
Date, of Arnall Golden & Gregory, LLP, counsel for the Company and the
Guarantors, to the effect that:
34
(i) each of the Company and its subsidiaries is duly
incorporated or organized, is validly existing as a corporation
or limited liability company in good standing under the laws of
its jurisdiction of incorporation or organization and has the
corporate (or similar) power and authority to carry on its
business as described in the Offering Memorandum and to own,
lease and operate its properties;
(ii) each of the Company and its subsidiaries is duly
qualified and is in good standing as a foreign corporation or
limited liability company 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 the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are
fully paid, nonassessable and not subject to any preemptive or
similar rights except as set forth in the documents relating to
the Equity Financing;
(iv) all of the outstanding shares of capital stock or
membership interests of each of the Company's subsidiaries have
been duly authorized and validly issued and are fully paid and
nonassessable, and are owned by the Company, free and clear of
any Lien, except as provided in the Credit Agreement;
(v) the Warrant Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement
of the Company, enforceable in accordance with its terms except
as (x) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally
and (y) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability;
35
(vi) the Warrants have been duly authorized and, when
executed by the Company in accordance with the provisions of the
Warrant Agreement and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, will
be valid and binding obligations of the Company, enforceable in
accordance with its terms except as (x) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (y) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability;
(vii) the Warrant Shares have been duly and validly
authorized for issuance by the Company and, when issued pursuant
to the terms of the Warrants and the Warrant Agreement, will be
validly issued, fully paid, nonassessable and not subject to any
preemptive or similar rights pursuant to law or the Company's
certificate of incorporation or any other preemptive or similar
rights;
(viii) the Indenture has been duly authorized, executed and
delivered by the Company and each Guarantor and is a valid and
binding agreement of the Company and each Guarantor, enforceable
against the Company and each Guarantor in accordance with its
terms except as (x) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (y) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability;
(ix) the Initial Notes have been duly authorized and, when
executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, will
be entitled to the benefits of the Indenture and will be valid
and binding obligations of the Company, enforceable against the
36
Company in accordance with their terms except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (y)
rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability;
(x) the Guarantees have been duly authorized and, when the
Initial Notes are executed and authenticated in accordance with
the provisions of the Indenture and delivered to and paid for by
the Initial Purchasers in accordance with the terms of this
Agreement, the Guarantees endorsed thereon will be entitled to
the benefits of the Indenture and will be valid and binding
obligations of the Guarantors, enforceable against each of the
Guarantors in accordance with their terms except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (y)
rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability;
(xi) each of the Company and the Guarantors has duly and
validly authorized the issuance of the Initial Notes, the
Guarantees and Warrants as Units.
(xii) this Agreement has been duly authorized, executed and
delivered by the Company and the Guarantors;
(xiii) the Notes Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and the
Guarantors and is a valid and binding agreement of the Company
and each Guarantor, enforceable against the Company and each
Guarantor in accordance with its terms except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (y)
rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability;
(xiv) the Warrant Registration Rights Agreement has been
duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency
37
or similar laws affecting creditors' rights generally and (y)
rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability;
(xv) the Exchange Notes have been duly authorized;
(xvi) the statements under the captions "The Sprint PCS
Agreements," "Description of Our Indebtedness," "Principal
Stockholders," "Certain Relationships and Related Transactions,"
"Regulation of the Wireless Industry," "Description of Units,"
"Description of Notes," "Description of Warrants," "Description
of Capital Stock," "Issuance of Convertible Preferred Stock,"
"Certain United States Federal Income Tax Considerations" and
"Plan of Distribution" in the Offering Memorandum, insofar as
such statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly present in
all material respects such legal matters, documents and
proceedings;
(xvii) neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws and, to the best
of such counsel's knowledge after due inquiry, neither the
Company nor any of its subsidiaries is 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 listed on Schedule 1 attached
hereto (which Schedule contains all the material agreements and
instruments, as represented by the Company, 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);
(xviii) the execution, delivery and performance of this
Agreement and the other Operative Documents by the Company and
each of the Guarantors, the compliance by the Company and each of
the Guarantors with all provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby
will not (i) require any consent, approval, authorization or
other order of, or qualification with, any court or governmental
38
body or agency (except such as may be required under the
securities or Blue Sky laws of the various states), (ii) conflict
with or constitute a breach of any of the terms or provisions of,
or a default under, the charter or by-laws of the Company or any
of its subsidiaries or, to the best of such counsel's knowledge
after due inquiry, 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, (iii)
violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Company,
any of its subsidiaries or their respective property, (iv) result
in the imposition or creation of (or the obligation to create or
impose) a Lien under, any agreement or instrument known to us 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, or (v) to the best of such counsel's knowledge
after due inquiry, result in the termination, suspension or
revocation of any material Authorization (as defined below) of
the Company or any of its subsidiaries or result in any other
impairment of the rights of the holder of any such Authorization.
(xix) each of the Sprint Agreements (A) has been duly
authorized, executed and delivered by, (B) constitutes the valid
and binding obligation of, and (C) is enforceable in accordance
with its terms against, the Company and any Related Party, to the
extent each is a party thereto;
(xx) each of the Bank Financing Agreements and the Consent
and Agreement (A) has been duly authorized, executed and
delivered by, (B) constitutes the valid and binding obligation
of, and (C) except as (i) the enforceability may be limited by
bankruptcy, insolvency or similar laws affecting creditors rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of
general applicability, is enforceable in accordance with its
39
terms against, the Company and its affiliates, to the extent each
is a party thereto;
(xxi) each of the Equity Financing Agreements (A) has been
duly authorized, executed and delivered by, (B) constitutes the
valid and binding obligation of, and (C) except as (i) the
enforceability may be limited by bankruptcy, insolvency or
similar laws affecting creditors rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability is
enforceable in accordance with its terms against, the Company and
its affiliates, to the extent each is a party thereto;
(xxii) the execution, delivery and performance of the Sprint
Agreements, the Bank Financing Agreements and the Equity
Financing Agreements by the Company and any of its affiliates
that are a party thereto, the compliance by the Company and such
affiliates with all the provisions thereof and the consummation
of the transactions contemplated thereby do not (A) require any
consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency
(except such as have already been obtained), (B) conflict with or
constitute a breach of any of the terms or provisions of, or a
default under (or an event which with notice or lapse of time, or
both, would constitute a breach of or a default under), the
certificate of incorporation or by-laws of the Company or any of
its subsidiaries or, to the best of such counsel's knowledge
after due inquiry, 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, (C)
violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Company,
any of its subsidiaries or their respective property or (D) to
the best of such counsel's knowledge after due inquiry, result in
40
the suspension, termination or revocation of any material
Authorization of the Company or any of its subsidiaries or any
other impairment of the rights of the holder of any such
Authorization.
(xxiii) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which
the Company or any of its subsidiaries is or could be a party or
to which any of their respective property is or could be subject,
which might result, singly or in the aggregate, in a Material
Adverse Effect.
(xxiv) to the best of such counsel's knowledge after due
inquiry, neither the Company nor any of its subsidiaries has
violated any Environmental Law or any provisions of ERISA, any
provisions of the Foreign Corrupt Practices Act or the rules and
regulations promulgated thereunder, except for such violations
which, singly or in the aggregate, would not have a Material
Adverse Effect;
(xxv) to the best of such counsel's knowledge after due
inquiry, each of the Company and its subsidiaries has such
Authorizations of, and has made all filings with and notices to,
all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including
without limitation, under any applicable Environmental Laws, as
are necessary to own, lease, license and operate its respective
properties and to conduct its business, except where the failure
to have any such Authorization or to make any such filing or
notice would not, singly or in the aggregate, have a Material
Adverse Effect. to the best of such counsel's knowledge after due
inquiry, each such Authorization is valid and in full force and
effect and each of the Company and its subsidiaries is in
compliance with all the terms and conditions thereof and with the
rules and regulations of the authorities and governing bodies
having jurisdiction with respect thereto; and no event has
occurred (including the receipt of any notice from any authority
or governing body) which allows or, after notice or lapse of time
or both, would allow, revocation, suspension or termination of
any such Authorization or results or, after notice or lapse of
41
time or both, would result in any other impairment of the rights
of the holder of any such Authorization; and, to the best of such
counsel's knowledge after due inquiry, such Authorizations
contain no restrictions that are burdensome to the Company or any
of its subsidiaries; except where such failure to be valid and in
full force and effect or to be in compliance, the occurrence of
any such event or the presence of any such restriction would not,
singly or in the aggregate, have a Material Adverse Effect;
(xxvi) none of the Company or the Guarantors is and, after
giving effect to the offering and sale of the Securities and the
application of the net proceeds thereof as described in the
Offering Memorandum, will be, an "investment company" as such
term is defined in the Investment Company Act of 1940, as
amended;
(xxvii) to the best of such counsel's knowledge after due
inquiry, except as specifically disclosed in the Offering
Memorandum, there are no contracts, agreements or understandings
between the Company or any Guarantor and any person granting such
person the right to require the Company or such Guarantor to file
a registration statement under the Act with respect to any
securities of the Company or such Guarantor or to require the
Company or such Guarantor to include such securities with any
Securities registered pursuant to any Notes Registration
Statement or Warrant Shelf Registration Statement;
(xxviii) the Indenture complies as to form in all material
respects with the requirements of the TIA, and the rules and
regulations of the Commission applicable to an indenture which is
qualified thereunder. It is not necessary in connection with the
offer, sale and delivery of the Securities to the Initial
Purchasers in the manner contemplated by this Agreement or in
connection with the Exempt Resales to qualify the Indenture under
the TIA.
(xxix) no registration under the Act of the Securities is
required for the sale of the Securities to the Initial Purchasers
as contemplated by this Agreement or for the Exempt Resales
42
assuming that (i) each Initial Purchaser is a QIB or a Regulation
S Purchaser, (ii) the accuracy of, and compliance with, the
Initial Purchasers' representations and agreements contained in
Section 7 of this Agreement, (iii) the accuracy of the
representations of the Company and the Guarantors set forth in
Sections 6(ff), (gg) and (ii) through (nn) of this Agreement.
(xxx) such counsel has no reason to believe that, as of the
date of the Offering Memorandum or as of the Closing Date, the
Offering Memorandum, as amended or supplemented, if applicable
(except for the financial statements and other financial data
included therein, as to which such counsel need not express any
belief) contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
The opinion of Arnall Golden & Gregory, LLP described in Section 9(e)
above shall be rendered to you at the request of the Company and the Guarantors
and shall so state therein. In giving such opinion with respect to the matters
covered by Section 9(e)(xxx), Arnall Golden & Gregory, LLP may state that their
opinion and belief are based upon their participation in the preparation of the
Offering Memorandum and any amendments or supplements thereto and review and
discussion of the contents thereof, but are without independent check or
verification except as specified.
(f) The Initial Purchasers shall have received on the Closing
Date an opinion, dated the Closing Date, of Skadden, Arps, Slate, Meagher & Flom
(Illinois), counsel for the Initial Purchasers, in form and substance reasonably
satisfactory to the Initial Purchasers.
(g) The Initial Purchasers shall have received, at the time this
Agreement is executed and at the Closing Date, letters dated the date hereof or
the Closing Date, as the case may be, in form and substance satisfactory to the
Initial Purchasers from Arthur Andersen LLP, independent public accountants,
containing the information and statements of the type ordinarily included in
accountants' "comfort letters" to the Initial Purchasers with respect to the
financial statements and certain financial information contained in the Offering
Memorandum.
(h) The Initial Notes and Warrants as Units shall have been
approved by the NASD for trading and duly listed in PORTAL.
43
(i) The Initial Purchasers shall have received a counterpart,
conformed as executed, of the Indenture which shall have been entered into by
the Company, the Guarantors and the Trustee.
(j) The Initial Purchasers shall have received a counterpart,
conformed as executed, of the Warrant Agreement which shall have been entered
into by the Company and the Warrant Agent.
(k) The Company and the Guarantors shall have executed the Notes
Registration Rights Agreement and the Initial Purchasers shall have received an
original copy thereof, duly executed by the Company and the Guarantors.
(l) The Company shall have executed the Warrant Registration
Rights Agreement and the Initial Purchasers shall have received an original copy
thereof, duly executed by the Company.
(m) The Company and its subsidiaries shall have entered into Bank
Financing Agreements on terms and conditions deemed satisfactory by the Initial
Purchasers, in their sole discretion, after giving due consideration to the
surrounding circumstances, the capital necessary to finance the Company's
business plan and such other factors as the Initial Purchasers shall deem
relevant (it being understood that so long as the Bank Financing Agreements are
entered into on terms and conditions substantially similar to the descriptions
thereof in the Offering Memorandum, and after giving due consideration to the
surrounding circumstances, the capital necessary to finance the Company's
business plan and such other factors as the Initial Purchasers shall deem
relevant, the Initial Purchasers shall deem such Bank Financing Agreements to be
satisfactory).
(n) The Company shall have entered into Equity Financing
Agreements on terms and conditions deemed satisfactory by the Initial
Purchasers, in their sole discretion, after giving due consideration to the
surrounding circumstances, the capital necessary to finance the Company's
business plan and such other factors as the Initial Purchasers shall deem
relevant (it being understood that so long as the Equity Financing Agreements
are entered into on terms and conditions substantially similar to the
descriptions thereof in the Offering Memorandum, and after giving due
consideration to the surrounding circumstances, the capital necessary to finance
the Company's business plan and such other factors as the Initial Purchasers
44
shall deem relevant, the Initial Purchasers shall deem such Equity Financing
Agreements to be satisfactory).
(o) The Company shall have received at least $ 126.5 million in
gross proceeds pursuant to the Equity Financing Agreements and shall have
provided evidence thereof reasonably satisfactory to the Initial Purchasers.
(p) The transactions contemplated by that certain asset purchase
agreement, dated May 22, 2000, between the Company and Sprint PCS shall have
been completed and the Company shall have provided evidence thereof reasonably
satisfactory to the Initial Purchaser.
(q) Neither the Company nor the Guarantors shall 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 or
the Guarantors, as the case may be, at or prior to the Closing Date.
10. EFFECTIVENESS OF AGREEMENT AND TERMINATION. This Agreement shall
become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the
Closing Date by the Initial Purchasers by written notice to the Company if any
of the following has occurred: (i) any outbreak or escalation of hostilities or
other national or international calamity or crisis or change in economic
conditions or in the financial markets of the United States or elsewhere that,
in the Initial Purchasers' judgment, is material and adverse and, in the Initial
Purchasers' judgment, makes it impracticable to market the Securities on the
terms and in the manner contemplated in the Offering Memorandum, (ii) the
suspension or material limitation of trading in securities or other instruments
on the New York Stock Exchange, the American Stock Exchange, the Chicago Board
of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade
or the Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading, if any, of any securities of the Company or any Guarantor
on any exchange or in the over-the-counter market, (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which in
your opinion materially and adversely affects, or will materially and adversely
affect, the business, prospects, financial condition or results of operations of
45
the Company and its subsidiaries, taken as a whole, (v) the declaration of a
banking moratorium by either federal or New York State authorities or (vi) the
taking of any action by any federal, state or local government or agency in
respect of its monetary or fiscal affairs which in your opinion has a material
adverse effect on the financial markets in the United States.
11. MISCELLANEOUS. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (i) if to the Company or any Guarantor,
to Horizon PCS, Inc., 68 East Main Street, Chillicothe, Ohio 45601, Attention:
President, and (ii) if to the Initial Purchasers, c/o Donaldson, Lufkin &
Jenrette Securities Corporation, 277 Park Avenue, New York, New York 10172,
Attention: Syndicate Department, or in any case to such other address as the
person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, the Guarantors and 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 Securities, regardless of (i) any investigation, or statement as to the
results thereof, made by or on behalf of the Initial Purchasers, the officers or
directors of the Initial Purchasers, any person controlling the Initial
Purchasers, the Company, any Guarantor, the officers or directors of the Company
or any Guarantor, or any person controlling the Company or any Guarantor, (ii)
acceptance of the Securities and payment for them hereunder and (iii)
termination of this Agreement.
If for any reason the Securities are not delivered by or on behalf of
the Company as provided herein (other than as a result of any termination of
this Agreement pursuant to Section 10 or the default of the Initial Purchasers),
the Company and each Guarantor, jointly and severally, agree to reimburse the
Initial Purchasers for all reasonable out-of-pocket expenses (including the fees
and disbursements of counsel) incurred by the Initial Purchaser. Notwithstanding
any termination of this Agreement, the Company shall be liable for all expenses
which it has agreed to pay pursuant to Section 5(i) hereof. The Company and each
Guarantor also agree, jointly and severally, to reimburse the Initial Purchasers
and their respective officers, directors and each person, if any, who controls
such Initial Purchaser within the meaning of Section 15 of the Act or Section 20
of the Exchange Act for any and all fees and expenses (including without
limitation the reasonable fees and expenses of counsel) incurred by them in
connection with enforcing their rights under this Agreement (including without
limitation its rights under Section 8).
46
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Guarantors,
the Initial Purchasers, the Initial Purchasers' directors and officers, any
controlling persons referred to herein, the directors of the Company and the
Guarantors 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 term "successors and assigns" shall
not include a purchaser of any of the Securities from the Initial Purchasers
merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
47
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Guarantors and the Initial Purchasers.
Very truly yours,
HORIZON PCS, INC.
By: /s/ Pete Holland
-----------------------------------------
Name: Pete Holland
Title: Chief Financial Officer
HORIZON PERSONAL COMMUNICATIONS, INC.
By: /s/ Pete Holland
-----------------------------------------
Name: Pete Holland
Title: Chief Financial Officer
BRIGHT PERSONAL COMMUNICATIONS SERVICES, LLC
By: /s/ William A. McKell
----------------------------------------
Name: William A. McKell
Title: President
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ Stanley W. Holtz
-----------------------------------------
Name: Stanley W. Holtz
Title: Senior Vice President
FIRST UNION SECURITIES, INC.
By: /s/ W.A. Luther
-----------------------------------------
Name: William A. Luther
Title: SVP/Director
48
SCHEDULE 1
Material Contracts
1. Sprint Agreements
o Sprint PCS Management Agreement between Sprint Spectrum, L.P.,
SprintCom, Inc. and PerCom dated June 8, 1998
(a) Addendum I to Management Agreement dated June 8, 1998
(b) Addendum II to Management Agreement dated August 12, 1999
(c) Addendum III to Management Agreement dated May 19, 2000
o Sprint PCS Services Agreement between Sprint Spectrum L.P. and PerCom
dated June 8, 1998
o Sprint Trademark and Service Mark License Agreement between Sprint
Communications Company, L.P. and PerCom dated June 8, 1998
o Sprint Spectrum Trademark and Service Mark License Agreement between
Sprint Spectrum, L.P. and PerCom dated June 8, 1998
(a) First Addendum dated June 8, 1998
o Sprint PCS Management Agreement between Wirelessco, L.P., SprintCom,
Inc., Sprint Spectrum, L.P. and Bright dated October 13, 1999
(a) Addendum I dated October 13, 1999
o Sprint PCS Services Agreement between Sprint Spectrum, L.P. and Bright
Dated October 13, 1999
o Sprint Trademark and Service Mark License Agreement between Sprint
Communications Company, L.P. and Bright dated October 13, 1999
o Sprint Spectrum Trademark an Service mark License Agreement between
Sprint Spectrum, L.P. and Bright dated October 13, 1999
o Asset Purchase Agreement dated May 19, 2000 between Sprint Spectrum,
L.P., Sprint Spectrum Realty Company, L.P., Sprint Spectrum Equipment
Company, L.P., Phillieco, L.P., Sprintcom, Inc., Sprintcom Equipment
Company, L.P. and PerCom
2. Non-Sprint Agreements
o Loan Agreement by and between PerCom and Rural Telephone Finance
Cooperative, dated August 29, 1997
o Loan Agreement by and between Bright and Rural Telephone Finance
Cooperative, dated April 28, 2000
o Loan Agreement by and between PerCom and Rural Telephone Finance
Cooperative, dated May 31, 2000
o Amendment to Loan Agreement dated June ____, 2000 by and between PerCom and
Rural Telephone Finance Cooperative
o Revolving Line of Credit Application and Agreement of Horizon Personal
Communications, Inc. (applicant) dated March 23, 2000 and approved March
29, 2000 by Rural Telephone Finance Cooperative.
o Registration Rights Agreement, dated June 27, 2000, by and among the
Company and those people listed as shareholders of the Company on attached
schedule (other than Horizon Telcom, Inc.)
o Network Services Agreement by and between West Virginia PCS Alliance, L.C.;
Virginia PCS Alliance, L.C. and PerCom dated August 12, 1999
o Assignment and Agreement between SprintCom, Inc., PerCom, West Virginia PCS
Alliance, L.C. and Virginia PCS Alliance, L.C. dated August 12, 1999
o Purchase and Sale Agreement by and between Motorola, Inc. and PerCom, dated
May 2, 1997
o Bridge Note Purchase Agreement by and between PerCom and First Union
Investors, Inc., dated February 15, 2000
o 13% Subordinated Promissory Note from PerCom to First Union Investors,
Inc., dated February 15, 2000
o Conversion Agreement by and between PerCom and First Union Investors, Inc.,
dated February 15, 2000
o Letter Agreement dated February 15, 2000 between First Union Investors,
Inc. and Horizon Personal Communications, Inc. regarding Bridge Note
o Site Development Agreement by and between PerCom and SBA Towers, Inc.,
dated August 17, 1999
o Master Site Agreement by and between SBA Towers, Inc. and PerCom, dated
August 17, 1999
o Master Design Build Agreement by and between PerCom and SBA Towers, Inc.,
dated August 17, 1999
o Master Site Agreement by and between Bright and SBA Towers, Inc., dated
October 1, 1999
o Master Design Build Agreement by and between Bright and SBA Towers, Inc.,
dated October 1, 1999
o Services Agreement, dated May 1, 2000, between PerCom and Horizon Services,
Inc.
o Lease Agreement, dated May 1, 2000, between The Chillicothe Telephone
Company and PerCom
o Amended and Restated Services Agreement, dated as of May 1, 2000, between
PerCom and United Communications, Inc.
o Amended and Restated Tax Allocation Agreement dated May 1, 2000 by and
among Horizon Telecom, Inc., the Chillicothe Telephone Company, United
Communications, Inc., Horizon Services, Inc., PerCom and the Company.
49
SCHEDULE A
[Insert information]
50
SCHEDULE B
SUBSIDIARIES
Horizon Personal Communications, Inc.
Bright Personal Communications Services, LLC
EXHIBIT A
FORM OF NOTES REGISTRATION RIGHTS AGREEMENT
EXHIBIT B
FORM OF WARRANT REGISTRATION RIGHTS AGREEMENT