Exhibit 1.3
$500,000,000
SBA COMMUNICATIONS CORPORATION
10 1/4% Senior Notes due 2009
PURCHASE AGREEMENT
January 26, 2001
Lehman Brothers Inc.
Salomon Smith Barney Inc.
Deutsche Banc Alex. Brown Inc
Donaldson, Lufkin & Jenrette Securities Corporation
(an affiliate of Credit Suisse First Boston Corporation)
TD Securities (USA) Inc.
Barclays Capital Inc.
Wachovia Securities, Inc.
Lehman Brothers Inc.
Salomon Smith Barney Inc.
As Representative of the several Initial Purchasers
Three World Financial Center
New York, New York 10285
Dear Sirs:
SBA Communications Corporation, a Florida corporation (the "COMPANY"),
proposes to issue and sell to the Initial Purchasers named in Schedule I (the
"Initial Purchasers") for whom you (the "Representatives") are acting as
representative $500.0 million in aggregate principal amount of its 10 1/4%
Senior Notes due 2009 (the "INITIAL NOTES") to be issued pursuant to the terms
of an Indenture (the "INDENTURE") between the Company and State Street Bank and
Trust Company, as trustee (the "TRUSTEE"), relating to the Initial Notes. The
Initial Purchasers propose to purchase all the Initial Notes in the amounts set
forth in Schedule I. Capitalized terms used but not defined herein shall have
the meanings given to such terms in the Indenture.
The Initial Notes will be offered and sold to you pursuant to exemptions
from the registration requirements under the Securities Act of 1933, as amended
(the "SECURITIES ACT"). The Company has prepared a preliminary offering
memorandum, dated January 19, 2001 (the "PRELIMINARY OFFERING MEMORANDUM"), and
a final offering memorandum (the "OFFERING MEMORANDUM"), dated January 26, 2001
relating to the Company and the Initial Notes. As described in the Offering
Memorandum, the Company will use the net proceeds from the offering of the
Initial Notes to repay certain amounts outstanding under the Credit Agreement
(defined herein), to finance the construction and acquisition of towers and
related businesses and for general working capital purposes.
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Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Securities Act, the
Initial Notes (and all securities issued in exchange therefor or in substitution
thereof) shall bear the following legend:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE
SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) (a)
TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 903 OR 904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE
COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH
CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF
THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE."
You have represented and warranted to the Company that you will make offers
(the "EXEMPT Resales") of the Initial Notes purchased by you hereunder on the
terms set forth in the Offering Memorandum, as amended or supplemented, solely
to (i) persons whom you reasonably believe to be "qualified institutional
buyers," as defined in Rule 144A under the Securities Act ("QIBS"), and (ii) to
persons other than U.S. Persons in offshore transactions meeting the
requirements of Rule 903 and 904 of Regulation S under the Securities Act (such
persons specified in clauses (i) and (ii) being referred to herein as the
"ELIGIBLE PURCHASERS"). As used herein, the terms "offshore transaction" and
"U.S. person" have the respective meanings
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given to them in Regulation S. You will offer the Initial Notes to Eligible
Purchasers initially at a price equal to 100% of the principal amount thereof.
Subsequently, such price may be changed at any time without notice.
Holders (including subsequent transferees) of the Initial Notes will have
the registration rights set forth in the registration rights agreement (the
"REGISTRATION RIGHTS AGREEMENT"), to be dated on or about February 2, 2001 (the
"CLOSING DATE"), in the form of EXHIBIT A hereto, for so long as such Initial
Notes constitute "Transfer Restricted Notes" (as defined in the Registration
Rights Agreement). Pursuant to the Registration Rights Agreement, the Company
will agree to file with the Securities and Exchange Commission (the
"COMMISSION") under the circumstances set forth therein, (i) a registration
statement under the Securities Act (the "EXCHANGE OFFER REGISTRATION STATEMENT")
relating to the Company's 10 1/4% New Notes due 2009 (the "NEW NOTES" and,
together with the Initial Notes, the "NOTES") to be offered in exchange for the
Initial Notes (such offer to exchange being referred to as the "EXCHANGE OFFER")
and (ii) a shelf registration statement pursuant to Rule 415 under the
Securities Act (the "SHELF REGISTRATION STATEMENT," and together with the
Exchange Offer Registration Statement, the "REGISTRATION STATEMENTS") relating
to the resale of the Initial Notes by certain holders of such Notes, and to use
their best efforts to cause such Registration Statements to be declared
effective. This Agreement, the Indenture and the Registration Rights Agreement
are hereinafter referred to collectively as the "OPERATIVE DOCUMENTS." This is
to confirm the agreements concerning the purchase of the Initial Notes from the
Company by you.
1. Representations, Warranties and Agreements of the Company. The Company
represents, warrants and agrees as follows:
(a) The Preliminary Offering Memorandum and the Offering Memorandum have
been prepared by the Company for use by the Initial Purchasers in connection
with the Exempt Resales. No order or decree preventing the use of the
Preliminary Offering Memorandum or the Offering Memorandum, or any order
asserting that the transactions contemplated by this Agreement are subject to
the registration requirements of the Securities Act, has been issued and no
proceeding for that purpose has commenced or is pending or, to the knowledge of
the Company, is contemplated.
(b) The Preliminary Offering Memorandum and the Offering Memorandum as of
their respective dates did not, and the Offering Memorandum as of the Closing
Date will not, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained therein, in
light of the circumstances under which they were made, not misleading, except
that this representation and warranty does not apply to statements in or
omissions from the Preliminary Offering Memorandum and the Offering Memorandum
relating to the Initial Purchasers and made in reliance upon and in conformity
with information furnished to the Company in writing by or on behalf of the
Initial Purchasers expressly for use therein.
(c) The documents incorporated by reference in the Preliminary Offering
Memorandum and the Offering Memorandum, when they became effective or were filed
with the Commission, as the case may be, conformed in all material respects to
the requirements of the
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Securities Exchange Act of 1934 and the rules and regulations of the Commission
thereunder, and none of such documents contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Preliminary
Offering Memorandum and the Offering Memorandum, when such documents are filed
with Commission will conform in all material respects to the requirements of the
Securities Exchange Act of 1934 and the rules and regulations of the Commission
thereunder and will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading.
(d) The Company is duly incorporated and validly existing and in good
standing under the laws of Florida with all requisite corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Preliminary Offering Memorandum and the Offering Memorandum,
and is duly registered and qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification, and none of
the subsidiaries (as defined in Rule 405 under the Securities Act)
("SUBSIDIARIES") of the Company other than SBA Telecommunications, Inc., SBA
Properties, Inc., SBA, Inc., SBA Network Services, Inc., SBA Sites, Inc. and SBA
Towers, Inc. is a "significant subsidiary", as such term is defined in Rule 405
under the Securities Act.
(e) Neither the Company nor any of its subsidiaries (i) is in violation
of its charter or by-laws or (ii) is in default in any material respect, and no
event has occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant or
condition contained in any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by which it
is bound or to which any of its properties or assets is subject.
(f) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement, the
Indenture, the Notes and the Registration Rights Agreement.
(g) This Agreement has been duly and validly authorized, executed and
delivered by the Company.
(h) The Registration Rights Agreement has been duly and validly
authorized by the Company and, upon its execution and delivery by the Company
and assuming due authorization, execution and delivery by the Initial
Purchasers, will constitute the valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms (subject to
applicable bankruptcy, insolvency reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights generally from time
to time in effect and to general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and fair
dealing).
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(i) The Indenture has been duly and validly authorized by the Company,
and upon its execution and delivery by the Company and assuming due
authorization, execution and delivery by the Trustee, will constitute the valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws affecting
creditors' rights generally from time to time in effect and to general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing); no qualification of the
Indenture under the Trust Indenture Act of 1939 ("TIA") is required in
connection with the offer and sale of the Initial Notes contemplated hereby or
in connection with the Exempt Resales.
(j) The Initial Notes have been duly and validly authorized by the
Company and when duly executed by the Company in accordance with the terms of
the Indenture and, assuming due authentication of the Initial Notes by the
Trustee, upon delivery to the Initial Purchasers against payment therefor in
accordance with the terms hereof, will have been validly issued and delivered,
and will constitute valid and binding obligations of the Company entitled to the
benefits of the Indenture, enforceable against the Company in accordance with
their terms (subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting creditors'
rights generally from time to time in effect and to general equitable principles
(whether considered in a proceeding in equity or at law) and an implied covenant
of good faith and fair dealing).
(k) The New Notes have been duly and validly authorized by the Company
and if and when duly issued and authenticated in accordance with the terms of
the Indenture and, assuming due authentication of the New Notes by the Trustee,
upon delivery in accordance with the Exchange Offer provided for in the
Registration Rights Agreement, will constitute valid and binding obligations of
the Company entitled to the benefits of the Indenture, enforceable against the
Company in accordance with their terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other similar
laws affecting creditors' rights generally from time to time in effect and to
general equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing).
(l) All the shares of capital stock of the Company outstanding prior to
the issuance of the Initial Notes have been duly authorized and validly issued
and are fully paid and nonassessable, and the authorized capitalization of the
Company conforms to the description thereof under the caption "Capitalization"
in the Offering Memorandum.
(m) Each of the U.S. Subsidiaries of the Company is duly organized and
validly existing and in good standing under the laws of the jurisdiction of its
organization, with all requisite power and authority to own, lease and operate
its properties and is duly registered and qualified to conduct its business and
is in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure to be duly registered or qualified would
not have caused a Material Adverse Effect. The Company and the Subsidiaries, as
a whole, conduct their business as described in the Preliminary Offering
Memorandum and the Offering Memorandum. All of the issued shares of capital
stock of each Subsidiary of the Company have been duly and validly
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authorized and issued and are fully paid and non-assessable, are owned directly
or indirectly by the Company, and (except as set forth in the Offering
Memorandum with respect to shares subject to liens under the Second Amended and
Restated Credit Agreement, dated as of December 16, 1999 (as amended,
supplemented or otherwise modified from time to time, the "SENIOR CREDIT
AGREEMENT"), by and among the Company, SBA Telecommunications, Inc., the several
lenders from time to time parties thereto, Lehman Brothers Inc., as co-arranger,
General Electric Capital Corporation, as co-arranger and syndication agent,
Toronto Dominion (Texas), Inc., as documentation agent, Barclays Bank PLC, as
co-documentation agent, and Lehman Commercial Paper Inc., as administrative
agent) free and clear of all liens, encumbrances, equities or claims.
(n) There are no legal or governmental proceedings pending or, to the
knowledge of the Company or its Subsidiaries, threatened against the Company or
any of its Subsidiaries or to which any of their respective properties is
subject, that are not disclosed in the Offering Memorandum and which are
reasonably likely to have a material adverse effect on the general affairs,
management, consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries taken as a
whole (a "MATERIAL ADVERSE EFFECT") or to materially affect the issuance of the
Notes or the consummation of any of the other transactions contemplated by the
Operative Documents. There are no contracts or documents which are required to
be filed under the Securities Exchange Act of 1934, or the rules or regulations
thereunder, which have not been filed as exhibits with the Commission. The
Offering Memorandum contains accurate summaries of each of the material
agreements, contracts, indentures, leases or other instruments which are
described therein. Neither the Company nor any of its Subsidiaries is involved
in any strike or labor dispute with any group of employees, and, to the
knowledge of the Company or any of its Subsidiaries, no such action or dispute
is threatened, which might be expected to have a Material Adverse Effect.
(o) No material relationship, direct or indirect, exists between or among
the Company or SBA Telecommunications Inc. on the one hand, and the directors,
officers, stockholders, affiliates, customers or suppliers of the Company or SBA
Telecommunications Inc. on the other hand, which is required to be described in
the documents incorporated by reference which is not so described.
(p) The execution, delivery and performance of this Agreement and the
other Operative Documents and the issuance of the Initial Notes and the New
Notes and the consummation of the transactions contemplated hereby and thereby
will not conflict with, or result in a breach or violation of any of the terms
or provisions of, or (including with the giving of notice or the lapse of time
or both) constitute a default under (i) any indenture, mortgage, deed of trust,
loan agreement or other 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
is bound or to which any of the properties or assets of the Company or any of
its Subsidiaries is subject, (ii) the provisions of the charter, by-laws or
other organizational documents of the Company or any of its Subsidiaries or
(iii) any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its Subsidiaries
or any of their properties or assets, except in the cases of clause (i) or
(iii), such breaches, violations or defaults that in the aggregate would not
have a Material Adverse Effect, and no consent, approval,
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authorization or order of, or filing or registration with, any court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement and the other Operative Documents and the issuance
of the Initial Notes and the New Notes and the consummation of the transactions
contemplated hereby and thereby except as may be required by the securities or
Blue Sky laws of any state of the United States or any foreign jurisdiction in
connection with the sale of the Initial Notes and the New Notes and except as
contemplated by the Registration Rights Agreement.
(q) The accountants, Arthur Andersen LLP, who have certified certain of
the financial statements included and incorporated by reference in the Offering
Memorandum, are independent public accountants under Rule 101 of the Code of
Professional Conduct of the American Institute of Certified Public Accountants
(the "AICPA"), and its interpretation and rulings.
(r) The consolidated historical financial statements, together with the
related notes thereto, included or incorporated by reference in the Offering
Memorandum comply as to form in all material respects with the requirements of
Regulation S-X under the Securities Act applicable to registration statements on
Form S-3 under the Securities Act. Such historical financial statements fairly
present the financial position of the Company at the respective dates indicated
and the results of operations and cash flows for the respective periods
indicated, in each case in accordance with generally accepted accounting
principles ("GAAP") consistently applied throughout such periods. The other
financial information and data included in the Offering Memorandum 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.
(s) Except as disclosed in the Offering Memorandum, since the date of the
latest audited consolidated financial statements of the Company included or
incorporated by reference in the Offering Memorandum, neither the Company nor
any of its Subsidiaries has incurred any liability or obligation, direct or
contingent, or entered into any transaction, in each case not in the ordinary
course of business, and that is material to the Company and its Subsidiaries,
taken as a whole, and there has been no Material Adverse Effect, nor to the
Company's knowledge, after due inquiry, any development or event involving a
prospective Material Adverse Effect and, except as disclosed in or contemplated
by the Offering Memorandum, since the date of the latest audited consolidated
financial statements of the Company included in the Offering Memorandum, there
has been no (i) dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock, (ii) issuance of securities,
other than the Initial Notes offered hereby, the securities issued pursuant to
the Company's 1999 Equity Participation Plan, the Company's Stock Purchase Plan,
outstanding options, rights or warrants as of such date, and securities issued
under the Company's two Registration Statements on Form S-4, or (iii) material
increase in short-term or long-term debt of the Company on consolidated basis.
(t) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of its consolidated
financial statements in conformity with GAAP and to
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maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
reported accountability for assets is compared with existing assets at
reasonable intervals.
(u) The Company and each of its Subsidiaries have good and marketable
title in fee simple to or a leasehold interest in all real property and good
title to all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects, except for liens contemplated by the Senior
Credit Agreement or as are otherwise described in the Offering Memorandum or
such as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such property
by the Company and its Subsidiaries; all assets held under lease by the Company
and its Subsidiaries are held by them under valid, subsisting and enforceable
leases, with such exceptions as are not material and do not materially interfere
with the use made and proposed to be made of such property and buildings by the
Company and its Subsidiaries taken as a whole; and the present and contemplated
use of the assets owned or leased by the Company or any of its Subsidiaries for
the operation of towers is in compliance in all material respects with all
applicable zoning ordinances and regulations and other laws and regulations
where failure so to comply would result, or create reasonable risk of resulting,
in a Material Adverse Effect.
(v) The Company and each of its Subsidiaries own or possess adequate
rights to use all patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service mark registrations, copyrights and
licenses necessary for the conduct of their respective businesses and have no
reason to believe that the conduct of their respective businesses will conflict
with, and have not received any notice of any claim of conflict with, any such
rights of others, in each case except as could not reasonably be expected to
have a Material Adverse Effect.
(w) Neither the Company nor any of its Subsidiaries nor any director,
officer, agent, employee or other person associated with or acting on its behalf
of the Company or any of its Subsidiaries, has used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to
political activity; made any direct or indirect unlawful payment to any foreign
or domestic government official or employee from corporate funds; violated or is
in violation of any provision of the Foreign Corrupt Practices Act of 1977; or
made any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.
(x) Neither the Company nor any of its Subsidiaries is currently or will
be, upon sale of the Initial Notes in accordance herewith and the application of
the net proceeds therefrom as described in the Offering Memorandum under the
caption "Use of Proceeds," an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(y) Neither the Company nor any affiliate (as defined in Rule 501(b) of
Regulation D ("REGULATION D") under the Securities Act) of the Company has
directly, or through any agent (provided that no representation is made as to
the Initial Purchasers or any person acting on their behalf), (i) sold, offered
for sale, solicited offers to buy or otherwise negotiated in respect of, any
security (as defined in the Securities Act) which is or could be
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integrated with the offering and sale of the Notes in a manner that would
require the registration of the Notes under the Securities Act or (ii) engaged
in any form of general solicitation or general advertising (within the meaning
of Regulation D, including, but not limited to, advertisements, 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)
in connection with the offering of the Notes. No securities of the same class as
the Initial Notes have been issued and sold by the Company within the six-month
period immediately prior to the date hereof.
(z) Except as permitted by the Securities Act, the Company has not
distributed and, prior to the later to occur of the Closing Date and completion
of the distribution of the Initial Notes, will not distribute any offering
material in connection with the offering and sale of the Initial Notes other
than the Preliminary Offering Memorandum and Offering Memorandum.
(aa) When the Initial Notes are issued and delivered pursuant to this
Agreement, such Initial Notes will not be of the same class (within the meaning
of Rule 144A under the Securities Act) as securities of the Company that are
listed on a national securities exchange registered under Section 6 of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") or that are
quoted in a United States automated inter-dealer quotation system.
(bb) Assuming (i) that your representations and warranties in Section 2
hereof are true, (ii) compliance by you with your covenants set forth in Section
2 hereof and (iii) that each of the Eligible Purchasers is either (A) an entity
that you reasonably believe to be a QIB or (B) a person who is not a "U.S.
person" and who acquires the Initial Notes outside the United States in an
"offshore transaction" (within the meaning of Regulation S), the purchase of the
Initial Notes by you pursuant hereto and the resale of the Initial Notes
pursuant to the Exempt Resales is exempt from the registration requirements of
the Securities Act.
(cc) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security Act
of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"), no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the Company
would have any liability; the Company has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "CODE"); each "pension plan" for which the
Company would have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would cause the loss of
such qualification; and the statements set forth in the Offering Memorandum
under the caption "Notice to Investors" do not include any untrue statements of
material facts and do not omit any material facts necessary in order to make
such statements, in light of the circumstances under which they were made, not
misleading.
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(dd) The execution and delivery of this Agreement, the other Operative
Documents and the sale of the Initial Notes to be purchased by the Eligible
Purchasers will not involve any prohibited transaction within the meaning of
Section 406 of ERISA or Section 4975 of the Code. The representation made by the
Company in the preceding sentence is made in reliance upon and subject to the
accuracy of, and compliance with, the representations and covenants made or
deemed made by the Eligible Purchasers as set forth in the Offering Memorandum
under the section entitled "Notice to Investors."
(ee) Except (i) for the registration rights granted pursuant to the
Registration Rights Agreement dated as of March 5, 1997, among the Company,
Steven E. Bernstein, Ronald G. Bizick, II and Robert Grobstein, as subsequently
assigned, and the Registration Rights Agreement dated as of March 26, 1997,
among the Company and the Preferred Shareholders collectively, (the "STOCK
REGISTRATION RIGHTS AGREEMENTS") and (ii) as described in the Offering
Memorandum, there are no contracts, agreements or understandings between the
Company or any of its Subsidiaries and any person granting such person the right
to require the Company or any of its Subsidiaries to file a registration
statement under the Securities Act with respect to any securities of the Company
and its Subsidiaries owned or to be owned by such person or to require the
Company or any of its Subsidiaries to include such securities in the securities
registered pursuant to the Registration Statements or in any securities being
registered pursuant to any other registration statement filed by the Company or
any of its Subsidiaries under the Securities Act.
(ff) Each of the Company and its Subsidiaries carries, or is covered by,
insurance in such amounts and covering such risks as is adequate for the conduct
of its businesses and the value of its properties and as is customary for
companies engaged in similar businesses in similar industries.
(gg) Each of the Company and its Subsidiaries has filed all Federal, state
and local income and franchise tax returns required to be filed through the date
hereof and has paid all taxes due thereon except where such failure would not
have a Material Adverse Effect, and no tax deficiency has been determined
adversely to the Company or any of its Subsidiaries nor does the Company or any
of its Subsidiaries have any knowledge of any tax deficiency which, if
determined adversely to the Company, would have a Material Adverse Effect.
(hh) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes, hazardous
wastes or hazardous substances by the Company or any of its Subsidiaries (or, to
the knowledge of the Company, any of their predecessors in interest) at, upon or
from any of the property now or previously owned or leased by the Company or any
of its Subsidiaries in violation of any applicable law, ordinance, rule,
regulation, order, judgement, decree or permit or which would require remedial
action under any applicable law, ordinance, rule, regulation, order, judgement,
decree or permit, except for any violation or remedial action which would not
have, or could not be reasonably likely to have, singularly or in the aggregate
with all such violations and remedial actions, a Material Adverse Effect; there
has been no material spill, discharge, leak, emission, injection, escape,
dumping or release of any kind onto such property or into the environment
surrounding such property of any toxic wastes, medical wastes, solid wastes,
hazardous wastes or hazardous substances due to or
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caused by the Company or any of its Subsidiaries or with respect to which the
Company or any of its Subsidiaries has knowledge, except for any such spill,
discharge, leak, emission, injection, escape, dumping or release which would not
have or would not be reasonably likely to have, singularly or in the aggregate
with all such spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, a Material Adverse Effect; and the terms "hazardous
wastes," "toxic wastes," "hazardous substances" and "medical wastes" shall have
the meanings specified in any applicable local, state, Federal and foreign laws
or regulations with respect to environmental protection.
(ii) Neither the Company nor any of its affiliates or any person acting on
its or their behalf has engaged or will engage during the applicable restricted
period in any directed selling efforts within the meaning of Rule 902(b) of
Regulation S with respect to the Notes, and the Company and its affiliates and
all persons acting on their behalf have complied with and will comply with the
offering restriction requirements of Regulation S in connection with the
offering of the Notes outside the United States; provided that no representation
is made as to the Initial Purchasers or any person, acting on their behalf.
(jj) The sale of the Initial Notes pursuant to Regulation S are "offshore
transactions" and are not part of a plan or scheme to evade the registration
provisions of the Securities Act.
(kk) The Company is not required to deliver the information specified in
Rule 144A(d)(4) under the Securities Act in connection with the Exempt Resales.
(ll) Neither the Company nor any of its Subsidiaries has taken or may
take, directly or indirectly, any action designed to cause or result in, or
which has constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Notes to facilitate the sale
or resale of the Notes.
(mm) On and immediately after the Closing Date, the Company (after giving
effect to the issuance of the Notes and to the other transactions related
thereto as described in the Offering Memorandum) will be Solvent. As used in
this paragraph, the term "SOLVENT" means, with respect to a particular date,
that on such date (i) the present fair market value (or present fair saleable
value) of the assets of the Company is not less than the total amount required
to pay the probable liabilities of the Company on its total existing debts and
liabilities (including contingent liabilities) as they become absolute and
matured, (ii) the Company is able to realize upon its assets and pay its debts
and other liabilities, contingent obligations and commitments as they mature and
become due in the normal course of business, (iii) assuming the sale of the
Notes as contemplated by this Agreement and the Offering Memorandum, the Company
is not incurring debts or liabilities beyond its ability to pay as such debts
and liabilities mature and (iv) the Company is not engaged in any business or
transaction, and is not about to engage in any business or transaction, for
which its property would constitute unreasonably small capital. In computing the
amount of such contingent liabilities at any time, it is intended that such
liabilities will be computed at the amount that, in the light of all the facts
and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
12
(nn) The Company (i) has duly and timely filed all material reports,
registrations and other material filings, if any, which are required to be filed
by it or any of its Subsidiaries under the Communications Act of 1934, any
similar or successor federal statute, and the rules of the Federal
Communications Commission ("FCC") thereunder or any other applicable law, rule
or regulation of any governmental authority, including the FCC and the Federal
Aviation Authority ("FAA"), the non-filing of which would result, or be
reasonably likely to result, in a Material Adverse Effect and (ii) is in
compliance with all such laws, rules, regulations and ordinances, including
those promulgated by the FCC and the FAA, to the extent the non-compliance with
which would result, or be reasonably likely to result, in a Material Adverse
Effect. All information provided by or on behalf of the Company or any affiliate
in any material filing, if any, with the FCC and the FAA relating to the
business of the Company and its Subsidiaries was, to the knowledge of such
person at the time of filing, complete and correct in all material respects when
made, and the FCC and the FAA have been notified of any substantial or
significant changes in such information as may be required in accordance with
applicable requirements of law.
(oo) The industry-related and tower-related data and estimates included in
the Offering Memorandum are based on or derived from sources which the Company
believes to be reliable and accurate.
(pp) For each existing tower of the Company (or of its Subsidiaries) not
yet registered with the FCC where registration will be required, the FCC's grant
of an application for registration of such tower will not have a significant
environmental effect as defined under Section 1.1307(a) of the FCC's rules.
2. Representations, Warranties and Agreements of the Initial Purchasers.
Each Initial Purchaser represents, warrants and agrees that:
(a) The Initial Purchaser is a QIB with such knowledge and experience in
financial and business matters as are necessary in order to evaluate the merits
and risks of an investment in the Notes.
(b) The Initial Purchaser (i) is not acquiring the Initial Notes with a
view to any distribution thereof or with any present intention of offering or
selling any of the Initial Notes in a transaction that would violate the
Securities Act or the securities laws of any State of the United States or any
other applicable jurisdiction; (ii) in connection with the Exempt Resales, will
solicit offers to buy the Notes only from, and will offer to sell the Notes only
to, the Eligible Purchasers in accordance with this Agreement and on the terms
contemplated by the Offering Memorandum; and (iii) will not offer or sell the
Notes pursuant to, nor has it offered or sold the Notes by, or otherwise engaged
in, any form of general solicitation or general advertising (within the meaning
of Regulation D; including, but not limited to, advertisements, 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).
13
(c) The Initial Purchaser represents that it has not offered, sold or
delivered the Notes, and will not offer, sell or deliver the Initial Notes (i)
as part of its distribution at any time or (ii) otherwise until 40 days after
the later of the commencement of the offering and the Closing Date (such period,
the "RESTRICTED Period"), within the United States or to, or for the account or
benefit of U.S. persons, except in accordance with Rule 144A under the Act.
Accordingly, the Initial Purchaser represents and agrees that neither it, its
affiliates nor any persons acting on its or their behalf has engaged or will
engage in any directed selling efforts within the meaning of Rule 902(b) of
Regulation S with respect to the Initial Notes, and it, its affiliates and all
persons acting on its behalf have complied and will comply with the offering
restrictions requirements of Regulation S.
(d) The Initial Purchaser further represents and agrees that (i) it has
not offered or sold and will not offer or sell any Initial Notes to persons in
the United Kingdom prior to the expiry of the period of six months from the
issue date of the Initial Notes, except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995, (ii) it has complied and will comply with all
applicable provisions of the Financial Services Act 1986 with respect to
anything done by it in relation to the Notes in, from or otherwise involving the
United Kingdom, and (iii) it has only issued or passed on and will only issue or
pass on in the United Kingdom any document received by it in connection with the
issuance of the Initial Notes to a person who is of a kind described in Article
11(3) of the Financial Services Act 1986 (Investment advertisements)
(Exemptions) Order 1995 or is a person to whom the document may otherwise
lawfully be issued or passed on.
(e) The Initial Purchaser understands that the Company and, for purposes
of the opinions to be delivered to you pursuant to Section 7 hereof, counsel to
the Company and counsel to the Initial Purchasers, will rely upon the accuracy
and truth of the foregoing representations and you hereby consent to such
reliance.
The terms used in this Section 2 that have meanings assigned to them in
Regulation S are used herein as so defined.
The Initial Purchasers further agree that, in connection with the Exempt
Resales, they will solicit offers to buy the Initial Notes only from, and will
offer to sell the Initial Notes only to, the Eligible Purchasers in Exempt
Resales.
3. Purchase of the Notes by the Initial Purchasers. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell $500.0 million in
aggregate principal amount of Initial Notes to the Initial Purchasers and the
Initial Purchasers agree to purchase all of the Initial Notes. The Initial
Purchasers will purchase the Notes at an aggregate purchase price equal to
97.045% of the principal amount thereof (the "PURCHASE PRICE").
14
The Company shall not be obligated to deliver any of the Initial Notes to
be delivered, except upon payment of all the Initial Notes to be purchased on
the Closing Date as provided herein.
4. Delivery of and Payment for the Notes.
(a) Delivery to the Initial Purchasers of and payment for the Initial
Notes shall be made at 9:00 a.m., New York City time, on the Closing Date at the
offices of Simpson Thacher & Bartlett, 425 Lexington Avenue, New York, New York
10017, or such other place or time as you and the Company shall designate.
(b) One or more Initial Notes in definitive form, registered in the name
of Cede & Co., as nominee of The Depository Trust Company ("DTC"), or such other
names as the Initial Purchasers may request upon at least one business day's
notice to the Company, having an aggregate principal amount corresponding to the
aggregate principal amount of Initial Notes sold pursuant to Eligible Resales
(collectively, the "GLOBAL NOTES"), shall be delivered by the Company to the
Initial Purchasers, against payment by the Initial Purchasers of the purchase
price thereof by wire transfer of immediately available funds as the Company may
direct by written notice delivered to you two business days prior to the Closing
Date. The Global Notes in definitive form shall be made available to you for
inspection not later than 9:00 a.m. on the business day immediately preceding
the Closing Date.
(c) Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation of
the Initial Purchasers hereunder.
5. Further Agreements of the Company. The Company agrees:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, of (i) the issuance by any state securities commission of any
stop order suspending the qualification or exemption from qualification of any
Notes for offering or sale in any jurisdiction, or the initiation of any
proceeding for such purpose by the Commission or any state securities commission
or other regulatory authority, and (ii) the happening of any event that makes
any statement of a material fact made in the Preliminary Offering Memorandum or
the Offering Memorandum untrue or that requires the making of any additions to
or changes in the Preliminary Offering Memorandum or the Offering Memorandum in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The Company shall use its best efforts to
prevent the issuance of any stop order or order suspending the qualification or
exemption of the Notes under any state securities or Blue Sky laws and, if at
any time any state securities commission shall issue any stop order suspending
the qualification or exemption of the Notes under any state securities or Blue
Sky laws, the Company shall use every reasonable effort to obtain the withdrawal
or lifting of such order at the earliest possible time.
(b) To furnish to you, without charge, as many copies of the Preliminary
Offering Memorandum and the Offering Memorandum, and any amendments or
supplements
15
thereto, as you may reasonably request. The Company consents to the use of the
Preliminary Offering Memorandum and the Offering Memorandum, and any amendments
and supplements thereto required pursuant to this Agreement, by you in
connection with the Exempt Resales that are in compliance with this Agreement.
(c) Not to amend or supplement the Offering Memorandum prior to the
Closing Date or during the period referred to in (d) below unless you shall
previously have been advised of, and shall not have reasonably objected to, such
amendment or supplement within a reasonable time, but in any event not longer
than five days after being furnished a copy of such amendment or supplement. If,
in connection with any Exempt Resales or market making transactions after the
date of this Agreement and prior to the consummation of the Exchange Offer, any
event shall occur that, in the judgment of the Company or in the judgment of
counsel to you, makes any statement of a material fact in the Offering
Memorandum untrue or that requires the making of any additions to or changes in
the Offering Memorandum in order to make the statements in the Offering
Memorandum, in light of the circumstances at the time that the Offering
Memorandum is delivered to prospective Eligible Purchasers, not misleading, or
if it is necessary to amend or supplement the Offering Memorandum to comply with
any applicable laws, the Company shall promptly notify you of such event and
prepare an appropriate amendment or supplement to the Offering Memorandum so
that (i) the statements in the Offering Memorandum as amended or supplemented
will, in light of the circumstances at the time that the Offering Memorandum is
delivered to prospective Eligible Purchasers, not be misleading and (ii) the
Offering Memorandum will comply with applicable law.
(d) To cooperate with you and your counsel in connection with the
qualification of the Initial Notes for offer and sale by you and by dealers
under the state securities or Blue Sky laws of such jurisdictions as you may
request; provided, however, that the Company shall not be obligated 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 in any jurisdiction in which it is not now so subject. The Company shall
continue such qualification in effect so long as required by law for
distribution of the Initial Notes and shall file such consents to service of
process or other documents as may be necessary in order to effect such
qualification.
(e) Prior to the Closing Date, to furnish to you, in your capacity as
investment banker, any internal consolidated financial statements of the Company
that have been prepared by the Company for any period subsequent to the period
covered by the financial statements appearing in the Offering Memorandum.
(f) To use its reasonable best efforts to do and perform all things
required to be done and performed under this Agreement by it prior to or after
the Closing Date and to satisfy all conditions precedent on its part to the
delivery of the Initial Notes.
(g) Not to sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Securities Act) that
would be integrated with the sale of the Initial Notes in a manner that would
require the registration under the Securities Act of the sale to you or the
Eligible Purchasers of the Initial Notes.
16
(h) For a period of 60 days from the date of the Offering Memorandum, not
to, directly or indirectly, sell, contract to sell, grant any option to
purchase, issue any instrument convertible into or exchangeable for, or
otherwise transfer or dispose of, any debt securities of the Company or any of
its Subsidiaries having a maturity of more than one year from the date of issue
of such securities, except (i) for the New Notes in connection with the Exchange
Offer or (ii) with your prior consent.
(i) For so long as the Initial Notes remain outstanding and are
Restricted Securities within the meaning of Rule 144(a)(3) under the Securities
Act, to make available to such registered holder or beneficial owner of Initial
Notes in connection with any sale thereof and any prospective purchaser of such
Initial Notes from such registered holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Securities Act (or any successor provision
thereto).
(j) To comply with its agreements in the Registration Rights Agreement,
and all agreements set forth in the representation letters of the Company to DTC
relating to the approval of the Notes by DTC for "book-entry" transfer.
(k) To use its best efforts to effect the inclusion of the Notes in the
National Association of Securities Dealers, Inc. Automated Quotation System -
PORTAL ("PORTAL").
(l) To apply the net proceeds from the sale of the Initial Notes being
sold by the Company as set forth in the Offering Memorandum under the caption
"Use of Proceeds."
(m) During the period that is two years after the Closing Date, to take
such steps as shall be necessary to ensure that the Company does not become an
"investment company" within the meaning of such term under the Investment
Company Act of 1940 and the rules and regulations of the Commission thereunder.
6. Expenses. The Company agrees, whether or not the transactions
contemplated by this Agreement are consummated or this Agreement becomes
effective or is terminated, to pay all costs, expenses, fees and taxes incident
to and in connection with: (i) the preparation, printing, filing and
distribution of the Preliminary Offering Memorandum and the Offering Memorandum
(including, without limitation, financial statements) and all amendments and
supplements thereto, (ii) the preparation, printing (including, without
limitation, word processing and duplication costs) and delivery of this
Agreement, the Indenture, any Blue Sky Memoranda and any other agreements,
memoranda, correspondence and other documents printed and delivered in
connection herewith and with the Exempt Resales, (iii) the issuance and delivery
by the Company of the Notes, (iv) the fees and expenses of qualifying the Notes
for offer and sale under the securities or Blue Sky laws of the several states
(including related fees and expenses of counsel to Initial Purchasers, not to
exceed $7,500), (v) furnishing such copies of the Preliminary Offering
Memorandum and the Offering Memorandum, and all amendments and supplements
thereto, as may be reasonably requested by the Initial Purchasers for use in
connection with the initial Exempt Resales, (vi) the preparation of certificates
for the Notes including, without limitation, printing and engraving, (vii) the
fees, disbursements and expenses of the Company's counsel and accountants,
(viii) all expenses and listing fees in connection with
17
the application for quotation of the Initial Notes in PORTAL, (ix) all fees and
expenses of the Company in connection with the approval of the Notes by DTC for
"book-entry" transfer, (x) the fees, disbursements and expenses of the Trustee
and the Trustee's counsel and (xi) the performance by the Company of its other
obligations under this Agreement to the extent not provided for above; PROVIDED
that, except as provided in this Section 6 and in Section 10, the Initial
Purchasers shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Notes which they may sell
and the expenses of advertising any offering of the Notes made by the Initial
Purchasers.
Notwithstanding the foregoing, the Initial Purchasers agree to pay the
costs and expenses of the Company relating to investor presentations on any
"road show" undertaken in connection with the marketing of the offering of the
Notes, including, without limitation, any consultants engaged in connection with
the road show presentations, travel and lodging expenses of the representatives
of the Company and any such consultants, and the cost of any aircraft chartered
in connection with the road show.
7. Conditions of Initial Purchasers' Obligations. The obligations of the
Initial Purchasers hereunder are subject to the accuracy, when made and again on
the Closing Date (as if made again on and as of such date), of the
representations and warranties of the Company contained herein, to the
performance by the Company of its obligations hereunder and to each of the
following additional terms and conditions:
(a) The Offering Memorandum shall have been printed and copies made
available to you not later than 11:00 a.m., New York City time, on the second
business day following the date of this Agreement, or at such later date and
time as you may approve in writing.
(b) The Initial Purchasers shall not have discovered and disclosed to the
Company on or prior to such Closing Date that the Offering Memorandum or any
amendment or supplement thereto contains an untrue statement of a fact which, in
the opinion of Simpson Thacher & Bartlett, counsel for the Initial Purchasers,
is material or omits to state a fact which, in the opinion of such counsel, is
material and is necessary to make the statements, in light of the circumstances
under which they were made, not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the other Operative
Documents, the Offering Memorandum and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all material respects to counsel for the Initial Purchasers, and
the Company shall have furnished to such counsel all documents and information
that they may reasonably request to enable them to pass upon such matters.
(d) Akerman Senterfitt & Eidson, P.A. shall have furnished to the Initial
Purchasers its written opinion, as counsel to the Company, addressed to the
Initial Purchasers and dated as of the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchasers and its counsel, to the effect
that:
18
(i) The Company and each of its Florida Subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of the State of Florida and have all requisite power and
authority necessary to own or to hold their respective properties and
conduct businesses in which they are engaged.
(ii) The Company has all requisite power and authority to execute,
deliver and perform its obligations under this Agreement, the Indenture and
the Registration Rights Agreement, and to authorize, issue and sell the
Notes as contemplated by this Agreement.
(iii) This Agreement has been duly and validly authorized, executed
and delivered by the Company.
(iv) The Registration Rights Agreement has been duly and validly
authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Initial Purchasers, will
constitute the valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms (subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors' rights generally from time to time
in effect and to general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing).
(v) The Indenture has been duly and validly authorized, executed
and delivered by the Company and, assuming due authorization, execution and
delivery by the Trustee, will constitute the valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms
(subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights
generally from time to time in effect and to general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing); no qualification of the Indenture
under the TIA is required in connection with the offer and sale of the
Initial Notes contemplated hereby or in connection with the initial resale
of such Initial Notes in the manner contemplated by this Agreement and the
Offering Memorandum to register the Initial Notes under the Securities Act,
it being understood that no opinion will be expressed as to any subsequent
resale of any Initial Notes.
(vi) The Initial Notes have been duly and validly authorized by the
Company and when duly executed by the Company in accordance with the terms
of the Indenture and, assuming due authentication of the Initial Notes by
the Trustee, upon delivery to the Initial Purchasers against payment
therefor in accordance with the terms hereof, will have been validly issued
and delivered, and will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture, enforceable against the
Company in accordance with their terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other
similar laws affecting creditors' rights generally from time to time in
effect and to general equitable
19
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing).
(vii) The New Notes have been duly and validly authorized by the
Company and if and when duly issued and authenticated in accordance with
the terms of the Indenture and delivered in accordance with the Exchange
Offer provided for in the Registration Rights Agreement, will constitute
valid and binding obligations of the Company entitled to the benefits of
the Indenture, enforceable against the Company in accordance with their
terms (subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting creditors'
rights generally from time to time in effect and to general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing).
(viii) The authorized capital stock of the Company conforms to the
description thereof under the caption "Capitalization" in the Offering
Memorandum.
(ix) To the knowledge of such counsel, there are no legal or
governmental proceedings pending or overtly threatened against the Company
or any of its Subsidiaries, or to which any of their respective properties,
is subject, that are not disclosed in the Offering Memorandum and which are
reasonably likely to have a Material Adverse Effect or to materially affect
the issuance of the Notes or the consummation of the other transactions
contemplated by the Operative Documents.
(x) None of the issuance, offer or sale of the Initial Notes, the
execution, delivery or performance by the Company of this Agreement, the
other Operative Documents, compliance by the Company with the provisions
hereof or thereof nor consummation by the Company of the transactions
contemplated hereby or thereby (i) requires any consent, approval,
authorization or other order of, or registration or filing with, any court,
regulatory body, administrative agency or other governmental body, agency
or official (except such as may be required in connection with the
registration under the Securities Act of the New Notes in accordance with
the Registration Rights Agreement, qualification of the Indenture under the
TIA and compliance with the securities or Blue Sky laws of various
jurisdictions), or conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, the articles of incorporation
or by-laws, or other organizational documents, of the Company or (ii)
conflicts or will conflict with or constitutes or will constitute a breach
of, or a default under any agreement listed on a certificate of an officer
of the Company as being the material agreements of the Company and its
Subsidiaries taken as a whole (the "MATERIAL AGREEMENTS"), or (iii)
violates or will violate any of the court and administrative orders, writs,
judgments and decrees specifically directed to the Company and identified
to us by the Chief Financial Officer of the Company as being material to
the Company and its subsidiaries taken as a whole (the "Court Orders"), if
any, issued by any Federal or Florida governmental agency or body, or (iv)
results in any violation known to us of any Federal or Florida statute,
rule or regulation (other than Federal and State securities laws,
20
which are addressed elsewhere herein), except in each case such breaches,
conflicts or defaults that, individually or in the aggregate, would not
have a Material Adverse Effect.
(xi) The Company is not and, upon sale of the Initial Notes to be
issued and sold in accordance with this Agreement and the application of
the net proceeds to the Company of such sale as described in the Offering
Memorandum under the caption "Use of Proceeds," will not be an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
(xii) When the Initial Notes are issued and delivered pursuant to
this Agreement, such Initial Notes will not be of the same class (within
the meaning of Rule 144A under the Securities Act) as securities of the
Company that are listed on a national securities exchange registered under
Section 6 of the Exchange Act or that are quoted in a United States
automated inter-dealer quotation system.
(xiii) Assuming (i) that your representations and warranties in
Section 2 hereof are true, (ii) compliance by you with your covenants set
forth in Section 2 hereof and (iii) that each of the Eligible Purchasers is
a QIB or a person who acquires the Initial Notes outside the United States
in an "offshore transaction" and is not a "U.S. Person" (within the meaning
of Regulation S), it is not necessary in connection with the offer, sale
and delivery of the Initial Notes hereunder or in connection with the
resale of such Initial Notes in the manner contemplated by this Agreement
and the Offering Memorandum to register the Initial Notes under the
Securities Act.
(xiv) To the knowledge of such counsel, except (i) for the
registration rights granted pursuant to the Stock Registration Rights
Agreements and (ii) as disclosed in the Offering Memorandum, there are no
contracts, agreements or understandings between the Company or any of its
Subsidiaries and any person granting such person the right to require the
Company or any of its Subsidiaries to file a registration statement under
the Securities Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company or any of its
Subsidiaries to include such securities in all the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company or any of its Subsidiaries under the Securities Act.
(xv) The Company is not required to obtain stockholder consent for
the issuance or offering of the Notes.
(xvi) The descriptions of the Indenture, the Initial Notes and the
Registration Rights Agreement in the Offering Memorandum conform in all
material respects to the terms thereof.
(xvii) The statements set forth under the heading "Description of the
Notes" in the Offering Memorandum, insofar as such statements purport to
summarize certain provisions of the Initial Notes, provide a fair summary
of such provisions.
21
(xviii) The statements set forth under the heading "Description of
Other Indebtedness" in the Offering Memorandum, insofar as such statements
purport to summarize certain provisions of the outstanding indebtedness of
the Company, fairly summarize such provisions described therein in all
material respects.
(xix) The statements set forth under the heading "Certain U.S.
Federal Income Tax Considerations" in the Offering Memorandum, insofar as
such statements purport to summarize the Federal laws of the United States,
fairly summarize such provisions described therein in all material
respects.
(xx) The Company is not required to deliver to the Eligible
Purchasers the information specified in Rule 144A(d)(4) in connection with
Exempt Resales.
In addition, such counsel shall also state that such counsel has
participated in conferences with officers of the Company and with the
independent public accountants for the Company concerning the preparation of the
Offering Memorandum and, although such counsel has made certain inquiries and
investigations in connection with the preparation of the Offering Memorandum, it
is not passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Offering Memorandum
and on the basis of the foregoing such counsel's work in connection with this
matter did not disclose any information that gave such counsel reason to believe
that the Offering Memorandum, as of its date or as of the Closing Date, included
or includes an untrue statement of a material fact or omitted or omits to state
a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no belief or opinion with respect to the
financial statements and other financial data included therein).
The opinion of such counsel may be limited to the laws of the State of
Florida and the Federal laws of the United States. In rendering such opinion,
such counsel may rely as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the Company and public
officials.
(e) The Initial Purchasers shall have received from Simpson Thacher &
Bartlett, counsel for the Initial Purchasers, such opinion or opinions, dated as
of the Closing Date, with respect to the issuance and sale of the Initial Notes,
the Offering Memorandum and other related matters as the Initial Purchasers may
reasonably require, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to pass
upon such matters.
(f) The Company and the Trustee shall have entered into the Indenture and
the Initial Purchasers shall have received counterparts, conformed as executed,
thereof.
(g) The Company and the Initial Purchasers shall have entered into the
Registration Rights Agreement and the Initial Purchasers shall have received
counterparts, conformed as executed, hereof.
22
(h) With respect to the letter of Arthur Andersen LLP delivered to the
Initial Purchasers concurrently with the execution of this Agreement (the "AA
INITIAL LETTER"), the Company shall have furnished to the Initial Purchasers a
letter (as used in this paragraph, the "AA BRING-DOWN LETTER") of such
accountants, addressed to the Initial Purchasers and dated as of the Closing
Date (i) confirming that it is an independent public accountant under the
guidelines of the AICPA, (ii) stating, as of the date of the AA bring-down
letter (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Offering Memorandum, as of a date not more than two days prior to the date of
the AA bring-down letter), the conclusions and findings of such firm with
respect to the financial information and other matters covered by the AA initial
letter and (iii) confirming in all material respects the conclusions and
findings set forth in the AA initial letter.
(i) The Company shall have furnished to the Initial Purchasers a
certificate, dated as of the Closing Date, of its Chief Executive Officer or
President and its Chief Financial Officer or Treasurer stating that:
(i) The representations, warranties and agreements of the Company
in Section 1 hereof are true and correct as of such Closing Date and after
giving effect to the consummation of the transactions contemplated by this
Agreement; the Company has complied with all its agreements contained
herein, and the condition set forth in Section 7(j) hereof has been
fulfilled; and
(ii) They have carefully examined the Preliminary Offering
Memorandum and the Offering Memorandum and, in their opinion (i) as of
their respective dates and as of the Closing Date, the Preliminary Offering
Memorandum and the Offering Memorandum did not include any untrue statement
of a material fact and did not omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and (ii) since
the date of the Offering Memorandum, no event has occurred which should
have been set forth in a supplement or amendment to the Offering
Memorandum.
(j) (i) Neither the Company nor any of its Subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Offering Memorandum any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Offering Memorandum or (ii) since such
date there shall not have been any change in the capital stock or long-term debt
of the Company or any of its Subsidiaries or any change, or any development
involving a prospective change, that would have a Material Adverse Effect,
otherwise than as set forth or contemplated in the Offering Memorandum, the
effect of which, in any such case described in clause (i) or (ii), is, in the
judgment of the Initial Purchasers, so material and adverse as to make it
impracticable or inadvisable to proceed with the payment for and delivery of the
Initial Notes being delivered on such Closing Date on the terms and in the
manner contemplated in the Offering Memorandum.
23
(k) There shall exist at and as of the Closing Date no conditions that
would constitute a default (or an event that with notice or the lapse of time,
or both, would constitute a default) under the Senior Credit Facility (as
defined in the Offering Memorandum).
(l) Simpson Thacher & Bartlett shall have been furnished with such other
documents and opinions, in addition to those set forth above, as they may
reasonably require for the purpose of enabling them to review or pass upon the
matters referred to in this Agreement and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
(m) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities.
(n) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or minimum
prices shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have been
declared by Federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment of
the Initial Purchasers, impracticable or inadvisable to proceed with the public
offering or delivery of the Note being delivered on such Closing Date on the
terms and in the manner contemplated in the Offering Memorandum.
(o) The Initial Notes shall have been approved by the National
Association of Securities Dealers, Inc. for trading in the PORTAL market.
(p) Wiley Rein & Fielding shall have furnished to the Initial Purchasers
its written opinion, as FCC counsel to the Company, addressed to the Initial
Purchasers and dated such Delivery Date, in a form satisfactory to the Initial
Purchasers.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchasers.
24
8. Indemnification and Contribution.
(a) The Company hereby agrees to indemnify and hold harmless each Initial
Purchaser, its officers and employees and each person, if any, who controls such
Initial Purchaser within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Notes), to which such Initial
Purchaser, officer, employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any Preliminary Offering
Memorandum or the Offering Memorandum (in each case as amended or supplemented)
or (B) in any blue sky application or other document prepared or executed by the
Company (or based upon any written information furnished by the Company)
specifically for the purpose of qualifying any or all of the Notes under the
securities laws of any state or other jurisdiction (any such application,
document or information being hereinafter called a "BLUE SKY APPLICATION"), (ii)
the omission or alleged omission to state in any Preliminary Offering Memorandum
or the Offering Memorandum (in each case as amended or supplemented) or in any
Blue Sky Application any material fact required to be stated therein or
necessary to make the statements therein not misleading or (iii) any act or
failure to act or any alleged act or failure to act by such Initial Purchaser in
connection with, or relating in any manner to, the Notes or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clauses (i) or (ii) above (provided that the Company shall not be
liable under this clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or failure to act
undertaken or omitted to be taken by such Initial Purchaser through its gross
negligence or willful misconduct); and shall reimburse such Initial Purchaser
and each such officer, employee or controlling person promptly upon demand for
any legal or other expenses reasonably incurred by such Initial Purchaser,
officer, employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Offering Memorandum or the Offering Memorandum (in each case as
amended or supplemented) or in any Blue Sky Application in reliance upon and in
conformity with written information concerning such Initial Purchaser furnished
to the Company by or on behalf of such Initial Purchaser specifically for
inclusion therein. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to such Initial Purchaser or to
any officer, employee or controlling person of such Initial Purchaser.
(b) The Initial Purchasers shall indemnify and hold harmless the Company,
its respective officers, employees, and directors, and each person, if any, who
controls the Company within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company or any such director, officer or controlling
person may become subject, under the Securities Act or otherwise, insofar
25
as such loss, claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a material fact
contained (A) in any Preliminary Offering Memorandum or the Offering Memorandum
(in each case as amended or supplemented) or (B) in any Blue Sky Application or
(ii) the omission or alleged omission to state in any Preliminary Offering
Memorandum or the Offering Memorandum (in each case as amended or supplemented)
or in any Blue Sky Application any material fact required to be stated therein
or necessary to make the statements therein not misleading, but in each case
only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information concerning the Initial Purchasers furnished to the Company
by or on behalf of the Initial Purchasers specifically for inclusion therein,
and shall reimburse the Company and any such director, officer or controlling
person for any legal or other expenses reasonably incurred by the Company or any
such director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which the Initial Purchasers may otherwise have to the
Company, or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8
of the notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided, however, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Initial Purchasers shall have the right to employ counsel (in addition to
local counsel, if necessary) to represent jointly it and its officers, employees
and controlling persons who may be subject to liability arising out of any claim
in respect of which indemnity may be sought by the Initial Purchasers against
the Company under this Section 8 if, in the reasonable judgment of the Initial
Purchasers, it is advisable for the Initial Purchasers and their officers,
employees and controlling persons to be jointly represented by separate counsel,
and in that event the fees and expenses of such separate counsel shall be paid
by the Company. No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action)
26
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if there
be a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the Company
on the one hand and the Initial Purchasers on the other from the offering of the
Initial Notes or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Initial Purchasers on the other
with respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Initial Purchasers on the other with respect to such offerings
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Initial Notes purchased under this Agreement (before deducting
expenses) received by the Company, on the one hand, and the total discounts and
commissions received by the Initial Purchasers with respect to the Initial Notes
purchased under this Agreement, on the other hand, bear to the total gross
proceeds from the offering of the Initial Notes under this Agreement, in each
case as set forth on the cover page of the Offering Memorandum. The relative
fault shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Initial Purchasers,
the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Initial Purchasers agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) were to be determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section shall be deemed to
include, for purposes of this Section 8(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8(d), the Initial Purchasers shall not be required to contribute any
amount in excess of the amount by which the total price at which the Initial
Notes purchased by them were resold to Eligible Purchasers exceeds the amount of
any damages which the Initial Purchasers have otherwise paid or become liable to
pay by reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of
27
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) The Initial Purchasers confirm and the Company acknowledges that the
last paragraph on the cover page, the stabilization legend on page ii, and the
second, third, seventh, eighth, tenth and eleventh paragraphs of the section
entitled "Plan of Distribution" constitute the only information concerning the
Initial Purchasers furnished in writing to the Company by or on behalf of the
Initial Purchasers specifically for inclusion in the Preliminary Offering
Memorandum or the Offering Memorandum.
9. Termination. The obligations of the Initial Purchasers hereunder may
be terminated by the Initial Purchasers by notice given to the Company prior to
delivery of and payment for the Initial Notes if, prior to that time, any of the
events described in Sections 7(j), 7(m) or 7(n) shall have occurred or if the
Initial Purchasers shall decline to purchase the Initial Notes for any reason
permitted under this Agreement.
10. Reimbursement of Initial Purchasers' Expenses. If the Company shall
fail to tender the Initial Notes for delivery to the Initial Purchasers by
reason of any failure, refusal or inability on the part of the Company to
perform any agreement on their part to be performed, or because any other
condition of the Initial Purchasers' obligations hereunder required to be
fulfilled by the Company is not fulfilled, the Company will reimburse the
Initial Purchasers for all reasonable out-of-pocket expenses (including the fees
and disbursements of its counsel) incurred by the Initial Purchasers in
connection with this Agreement and the proposed purchase of the Initial Notes,
and upon demand the Company shall pay the full amount thereof to the Initial
Purchasers.
11. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) If to the Initial Purchasers, shall be delivered or sent by mail,
telex or facsimile transmission to Lehman Brothers Inc., Three World Financial
Center, New York, New York 10285, Attention: Peter Toal (Fax: 212-526-1501) and
Steven Berkenfeld (212) 526-2198, with a copy, in the case of any notice
pursuant to 8(c), to the Joe Polizzotto, Office of the General Counsel, Lehman
Brothers Inc., Three World Financial Center, 10th Fl., New York, New York,
10285.
(b) If to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to SBA Communications Corporation, One Town Center Road,
Third Floor, Boca Raton, Florida 33486, Attention: President (Fax:
561-995-7626), Attention: General Counsel (Fax: 561-989-2941) with a copy to
Akerman Senterfitt & Eidson, P.A., SunTrust International Center, 28th Floor,
One S.E. 3rd Avenue, Miami, Florida 33134-1714, Attention: Robert Boehm, Esq.
(Fax: 305-374-5095).
Any such statements, requests, notices or agreements shall take effect at
the time of receipt thereof. The Company shall be entitled to act and rely upon
any request, consent, notice or agreement given or made by the Initial
Purchasers. Any notice of a change of address
28
or facsimile transmission number must be given by the Company or by the Initial
Purchasers, as the case may be, in writing, at least three days in advance of
such change.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the Initial Purchasers, their personal
representatives and successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (i) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control the Initial Purchasers within the meaning of
Section 15 of the Securities Act and (ii) the representations, warranties,
indemnities and agreements of the Initial Purchasers contained in this Agreement
shall also be deemed to be for the benefit of officers and directors of the
Company and any person who controls the Company within the meaning of Section 15
of the Securities Act.
13. Survival. The respective indemnities, representations, warranties and
agreements of the Initial Purchasers and the Company contained in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement, shall
survive the delivery of and payment for the Notes and shall remain in full force
and effect, regardless of any investigation made by on behalf of any of them or
any person controlling any of them.
14. Definition of the Terms "Business Day." For purposes of this
Agreement "BUSINESS DAY" means any day on which the New York Stock Exchange,
Inc. is open for trading.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of New York.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[The remainder of this page left blank intentionally]
29
If the foregoing correctly sets forth the agreement among the Initial
Purchasers and the Company, please indicate your acceptance in the space
provided for the purpose below.
Very truly yours,
SBA COMMUNICATIONS CORPORATION
By: /s/ Jeffrey A. Stoops
------------------------------
Name: Jeffrey A. Stoops
Title: President
Accepted:
LEHMAN BROTHERS INC.,
as Representative of the Initial Purchasers
By: /s/ Peter Toal
-------------------------------
Name: Peter Toal
Title: Managing Director
SALOMON SMITH BARNEY INC.
as Representative of the Initial Purchasers
By: /s/ Kevin M. Sisson
--------------------------------
Name: Kevin M. Sisson
Title: Vice President