EXHIBIT 10.18
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EXECUTION COPY
TELECORP PCS, INC.
$575,000,000
11 5/8% Senior Subordinated Discount Notes due 2009
PURCHASE AGREEMENT
April 20, 1999
CHASE SECURITIES INC.
BT ALEX. BROWN INCORPORATED
LEHMAN BROTHERS INC.
c/o Chase Securities Inc.
270 Park Avenue, 4th floor
New York, New York 10017
Ladies and Gentlemen:
TeleCorp PCS, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell $575,000,000 aggregate principal amount at maturity of its
11 5/8% Senior Subordinated Discount Notes due 2009 (the "Securities"). The
Securities will be issued pursuant to an Indenture to be dated as of April 23,
1999 (the "Indenture") among the Company, TeleCorp Communications, Inc. (the
"Subsidiary Guarantor") and Bankers Trust Company, as trustee (the "Trustee"),
and will be guaranteed on an unsecured senior subordinated basis by the
Subsidiary Guarantor. The Company and the Subsidiary Guarantor hereby confirm
their agreement with Chase Securities Inc. ("CSI"), BT Alex. Brown Incorporated
and Lehman Brothers Inc. (together with CSI, the "Initial Purchasers")
concerning the purchase of the Securities from the Company by the several
Initial Purchasers.
The Securities will be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon an exemption therefrom. The Company has
prepared a preliminary offering memorandum dated April 2, 1999 (the "Preliminary
Offering Memorandum") and will prepare an offering memorandum dated the date
hereof (the "Offering Memorandum") setting forth information concerning the
Company and the Securities. Copies of the Preliminary Offering Memorandum have
been, and copies of the Offering Memorandum will be, delivered by the Company to
the Initial Purchasers pursuant to the terms of this Agreement. Any references
herein to the Preliminary Offering Memorandum and the Offering Memorandum shall
be deemed to include all amendments and supplements thereto, unless otherwise
noted. The Company hereby confirms that it has authorized the use of the
Preliminary Offering Memorandum and the Offering Memorandum in connection with
the offering and resale of the Securities by the Initial Purchasers in
accordance with Section 2.
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Holders of the Securities (including the Initial Purchasers and their
direct and indirect transferees) will be entitled to the benefits of an Exchange
and Registration Rights Agreement, substantially in the form attached hereto as
Annex A (the "Registration Rights Agreement"), pursuant to which the Company
will agree to file with the Securities and Exchange Commission (the
"Commission") (i) a registration statement under the Securities Act (the
"Exchange Offer Registration Statement") registering an issue of senior
subordinated discount notes of the Company (the "Exchange Securities") which are
identical in all material respects to the Securities (except that the Exchange
Securities will not contain terms with respect to transfer restrictions or
registration rights) and (ii) under certain circumstances, a shelf registration
statement pursuant to Rule 415 under the Securities Act (the "Shelf Registration
Statement").
Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Offering Memorandum.
1. Representations, Warranties and Agreements of the Company. The
Company and the Subsidiary Guarantor represent and warrant to, and agree with,
the several Initial Purchasers on and as of the date hereof and the Closing Date
(as defined in Section 3) that:
(a) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, did not, and on the Closing Date the
Offering Memorandum will not, contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the
Company and the Subsidiary Guarantor make no representation or warranty as
to information contained in or omitted from the Preliminary Offering
Memorandum or the Offering Memorandum in reliance upon and in conformity
with written information relating to the Initial Purchasers furnished to
the Company by or on behalf of any Initial Purchaser specifically for use
therein (the "Initial Purchasers' Information").
(b) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, contains all of the information
that, if requested by a prospective purchaser of the Securities, would be
required to be provided to such prospective purchaser pursuant to Rule
144A(d)(4) under the Securities Act.
(c) Assuming the accuracy of the representations and warranties of
the Initial Purchasers contained in Section 2 and their compliance with the
agreements set forth therein, it is not necessary, in connection with the
issuance and sale of the Securities to the Initial Purchasers and the
offer, resale and delivery of the Securities by the Initial Purchasers in
the manner contemplated by this Agreement and the Offering Memorandum, to
register the Securities under the Securities Act or to qualify the
Indenture under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
(d) Except as set forth an Exhibit A hereto, the Company has no
subsidiaries and holds no minority interest in any entity. The Company and
each of its subsidiaries have been duly incorporated or formed and are
validly existing as corporations, limited
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liability companies or limited partnerships in good standing under the laws
of their respective jurisdictions of incorporation or formation, are duly
qualified to do business and are in good standing as foreign corporations,
limited liability companies or limited partnerships in each jurisdiction in
which their respective ownership or lease of property or the conduct of
their respective businesses requires such qualification, and have all power
and authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged, except where the failure
to so qualify or have such power or authority would not, singularly or in
the aggregate, have a material adverse effect on the condition (financial
or otherwise), results of operations, business or prospects of the Company
and its subsidiaries taken as a whole (a "Material Adverse Effect").
(e) As of the Closing Date, the Company will have an authorized
capitalization as set forth in the Offering Memorandum under the heading
"Capitalization"; all of the outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid
and non-assessable; and the capital stock of the Company conforms in all
material respects to the description thereof contained in the Offering
Memorandum, including, in particular, under the heading "Description of
Capital Stock". All of the outstanding shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and, except as set forth on Exhibit A
hereto, are owned directly or indirectly by the Company, free and clear of
any lien, charge, encumbrance, security interest, restriction upon voting
or transfer or any other claim of any third party, other than (i) liens,
charges, encumbrances and security interests created by the Credit
Agreement dated as of July 17, 1998, among the Company, the Lenders
identified therein, The Chase Manhattan Bank, as Administrative Agent and
Issuing Bank, TD Securities (USA) Inc., as Syndication Agent, and Bankers
Trust Company, as Documentation Agent, and (ii) restrictions upon voting or
transfer arising under (A) the Stockholders' Agreement dated as of July 17,
1998, among AT&T Wireless PCS Inc., TWR Cellular, Inc., the investors
identified therein, the individuals identified therein and the Company, (B)
the Management Agreement dated as of July 17, 1999, between TeleCorp
Management Corp. and the Company and (C) the Investors Stockholders'
Agreement dated as of July 17, 1998, among AT&T Wireless PCS, Inc., CB
Capital Investors, L.P., Private Equity Investors III, L.P., Equity-Linked
Investors-II, Entergy Technology Holding Company, Whitney Equity Partners,
L.P., Whitney Strategic Partners III, L.P., J.H. Whitney III, L.P.,
Media/Communications Investors Limited Partnership, Media/Communications
Partners III Limited Partnership, Toronto Dominion Investments, Inc.,
Northwood Ventures LLC, Northwood Capital Partners LLC, One Liberty Fund
III, L.P., Hoak Communications Partners, L.P., HCP Capital Fund, L.P. and
the stockholders named therein.
(f) Each of the Company and the Subsidiary Guarantor has full right,
power and authority to execute and deliver this Agreement, the Indenture,
the Registration Rights Agreement and the Securities (in the case of the
Company only) (collectively, the "Transaction Documents") and to perform
its obligations hereunder and thereunder; and all corporate action required
to be taken for the due and proper authorization, execution
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and delivery of each of the Transaction Documents and the consummation of
the transactions contemplated thereby have been duly and validly taken.
(g) This Agreement has been duly authorized, executed and delivered
by the Company and the Subsidiary Guarantor and constitutes a valid and
legally binding agreement of the Company and the Subsidiary Guarantor.
(h) The Registration Rights Agreement has been duly authorized by the
Company and the Subsidiary Guarantor and, when duly executed and delivered
in accordance with its terms by each of the parties thereto, will
constitute a valid and legally binding agreement of the Company and the
Subsidiary Guarantor enforceable against the Company and the Subsidiary
Guarantor in accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law).
(i) The Indenture has been duly authorized by the Company and the
Subsidiary Guarantor and, when duly executed and delivered in accordance
with its terms by each of the parties thereto, will constitute a valid and
legally binding agreement of the Company and the Subsidiary Guarantor
enforceable against the Company and the Subsidiary Guarantor in accordance
with its terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether considered in
a proceeding in equity or at law). On the Closing Date, the Indenture will
conform in all material respects to the requirements of the Trust Indenture
Act and the rules and regulations of the Commission applicable to an
indenture which is qualified thereunder.
(j) The Securities have been duly authorized by the Company and the
Subsidiary Guarantor and, when duly executed, authenticated, issued and
delivered as provided in the Indenture and paid for as provided herein,
will be duly and validly issued and outstanding and will constitute valid
and legally binding obligations of the Company, as issuer, and the
Subsidiary Guarantor, as guarantor, entitled to the benefits of the
Indenture and enforceable against the Company as issuer, and the Subsidiary
Guarantor, as guarantor, in accordance with their terms, except to the
extent that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law).
(k) Each Transaction Document and each other document described in
the Offering Memorandum conforms in all material respects to the
description thereof contained in the Offering Memorandum.
(l) The execution, delivery and performance by the Company and the
Subsidiary Guarantor of each of the Transaction Documents to which each is
a party, the issuance,
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authentication, sale and delivery of the Securities and compliance by the
Company and the Subsidiary Guarantor with the terms thereof and the
consummation of the transactions contemplated by the Transaction Documents
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its subsidiaries (other than as provided
by the Indenture) pursuant to, any material indenture, mortgage, deed of
trust, loan agreement or other material 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 property or
assets of the Company or any of its subsidiaries is subject, nor will such
actions result in any violation of the provisions of the charter or by-laws
of the Company or any of its subsidiaries or any statute or any judgment,
order, decree, rule or regulation of any court or arbitrator or
governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties or assets; and no consent,
approval, authorization or order of, or filing or registration with, any
such court or arbitrator or governmental agency or body under any such
statute, judgment, order, decree, rule or regulation is required for the
execution, delivery and performance by the Company and the Subsidiary
Guarantor of each of the Transaction Documents to which each is a party,
the issuance, authentication, sale and delivery of the Securities and
compliance by the Company and the Subsidiary Guarantor with the terms
thereof and the consummation of the transactions contemplated by the
Transaction Documents, except for such consents, approvals, authorizations,
filings, registrations or qualifications (i) which shall have been obtained
or made prior to the Closing Date, (ii) as may be required to be obtained
or made under the Securities Act and the rules and regulations promulgated
thereunder and applicable state securities laws as provided in the
Registration Rights Agreement, (iii) the failure to obtain (A) could not
reasonably be expected to have a Material Adverse Effect or (B) would not
materially and adversely affect the legal, valid and binding obligations of
the Company or the Subsidiary Guarantor under the Transaction Documents or
the ability of the Company or the Subsidiary Guarantor to perform its
obligations under any of the Transaction Documents or (iv) which are
otherwise not material in the context of the sale of the Securities.
(m) PricewaterhouseCoopers LLP are independent certified public
accountants with respect to the Company and its subsidiaries within the
meaning of Rule 101 of the Code of Professional Conduct of the American
Institute of Certified Public Accountants ("AICPA") and its interpretations
and rulings thereunder. The historical financial statements (including the
related notes) contained in the Offering Memorandum comply in all material
respects with the requirements applicable to a registration statement on
Form S-1 under the Securities Act (except that disclosure of earnings per
share and certain supporting schedules are omitted); such financial
statements have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods covered
thereby and fairly present the financial position of the entities purported
to be covered thereby at the respective dates indicated and the results of
their operations and their cash flows for the respective periods indicated;
and the historical financial information contained in the Offering
Memorandum under the headings "Capitalization", "Selected Historical and
Pro Forma Consolidated Financial Information" and "Management's Discussion
and Analysis of Financial Condition and
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Results of Operations" is derived from the accounting records of the
entities covered thereby and fairly present the information purported to be
shown thereby. The pro forma financial information contained in the
Offering Memorandum has been prepared on a basis consistent with the
historical financial statements contained in the Offering Memorandum
(except for the pro forma adjustments specified therein), gives effect to
assumptions made on a reasonable basis and fairly presents the historical
and proposed transactions contemplated by the Offering Memorandum and the
Transaction Documents. The other historical financial information and data
included in the Offering Memorandum are, in all material respects, fairly
presented.
(n) There are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
or assets of the Company or any of its subsidiaries is the subject, other
than proceedings described in the Offering Memorandum affecting the
wireless communications industry generally which (i) singularly or in the
aggregate, if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to have a Material Adverse
Effect or (ii) question the validity or enforceability of any of the
Transaction Documents or any action taken or to be taken pursuant thereto;
and to the best knowledge of the Company, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(o) To the best knowledge of the Company, no action has been taken
and no statute, rule, regulation or order has been enacted, adopted or
issued by any governmental agency or body which prevents the issuance of
the Securities or suspends the sale of the Securities in any jurisdiction;
no injunction, restraining order or order of any nature by any federal or
state court of competent jurisdiction has been issued with respect to the
Company or any of its subsidiaries which would prevent or suspend the
issuance or sale of the Securities or the use of the Preliminary Offering
Memorandum or the Offering Memorandum in any jurisdiction; no action, suit
or proceeding is pending against or, to the best knowledge of the Company,
threatened against or affecting the Company or any of its subsidiaries
before any court or arbitrator or any governmental agency, body or
official, domestic or foreign, which could reasonably be expected to
interfere with or adversely affect the issuance of the Securities or in any
manner draw into question the validity or enforceability of any of the
Transaction Documents or any action taken or to be taken pursuant thereto;
and the Company has complied with any and all requests by any securities
authority in any jurisdiction for additional information to be included in
the Preliminary Offering Memorandum and the Offering Memorandum.
(p) Neither the Company nor any of its subsidiaries is (i) in
violation of its charter, by-laws, operating agreement or limited
partnership agreement, as appropriate, (ii) in default, and no event has
occurred which, with notice or lapse of time or both, would constitute 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 material agreement or instrument to which it is a
party or by which it is bound or to which any of its property or assets is
subject or (iii) in violation of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets may be
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subject, except, in the case of clause (ii) or clause (iii), for any
default or violation that could not reasonably be expected to have a
Material Adverse Effect.
(q) Except as disclosed in the Offering Memorandum, the Company and
each of its subsidiaries possess all material licenses, certificates,
authorizations and permits issued by, and have made all declarations and
filings with, the appropriate federal, state or foreign regulatory agencies
or bodies which are necessary or desirable for the ownership of their
respective properties or the conduct of their respective businesses as
described in the Offering Memorandum, except where the failure to possess
or make the same would not, singularly or in the aggregate, have a Material
Adverse Effect, and neither the Company nor any of its subsidiaries has
received notification of any revocation or modification of any such
license, certificate, authorization or permit or has any reason to believe
that any such license, certificate, authorization or permit will not be
renewed in the ordinary course.
(r) The Company and each of its subsidiaries have filed all federal,
state, local and foreign income and franchise tax returns required to be
filed through the date hereof and have paid all taxes due thereon, and no
tax deficiency has been determined adversely to the Company or any of its
subsidiaries which has had (nor does the Company or any of its subsidiaries
have any knowledge of any tax deficiency which, if determined adversely to
the Company or any of its subsidiaries, could reasonably be expected to
have) a Material Adverse Effect.
(s) Neither the Company nor any of its subsidiaries is (i) an
"investment company" or a company "controlled by" an investment company
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), and the rules and regulations of the Commission
thereunder or (ii) a "holding company" or a "subsidiary company" of a
holding company or an "affiliate" thereof within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
(t) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to financial assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences to the extent necessary.
(u) The Company and each of its subsidiaries have insurance covering
their respective properties, operations, personnel and businesses, which
insurance is in amounts and insures against such losses and risks as are
adequate to protect the Company and its subsidiaries and their respective
businesses, determined by reference to the insurance maintained by other
companies in the wireless communications industry. Neither the Company nor
any of its subsidiaries has received notice from any insurer or
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agent of such insurer that capital improvements or other expenditures are
required or necessary to be made in order to continue such insurance.
(v) Except as disclosed in the Offering Memorandum, 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, licenses and know-
how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures) necessary
for the conduct of their respective businesses, except where the failure to
possess such rights could not reasonably be expected to have a Material
Adverse Effect; and the conduct of their respective businesses will not
conflict in any respect with, and the Company and its subsidiaries have not
received any notice of any claim of conflict with, any such rights of
others that, if determined adversely to the Company or any of its
subsidiaries would, individually or in the aggregate, have a Material
Adverse Effect.
(w) The Company and each of its subsidiaries have good and marketable
title in fee simple to, or have valid rights to lease or otherwise use, all
items of real and personal property which are material to the business of
the Company and its subsidiaries, in each case free and clear of all liens,
encumbrances, claims and defects and imperfections of title except such as
(i) do not materially interfere with the use made and proposed to be made
of such property by the Company and its subsidiaries or (ii) could not
reasonably be expected to have a Material Adverse Effect.
(x) No labor disturbance by or dispute with the employees of the
Company or any of its subsidiaries exists or, to the best knowledge of the
Company, is contemplated or threatened.
(y) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section
4975 of the Internal Revenue Code of 1986, as amended from time to time
(the "Code")) or "accumulated funding deficiency" (as defined in Section
302 of ERISA) or any of the events set forth in Section 4043(b) of ERISA
(other than events with respect to which the 30-day notice requirement
under Section 4043 of ERISA has been waived) has occurred with respect to
any employee benefit plan of the Company or any of its subsidiaries which
could reasonably be expected to have a Material Adverse Effect; each such
employee benefit plan is in compliance in all material respects with
applicable law, including ERISA and the Code, except where such
noncompliance, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect; the Company and each of its
subsidiaries have not incurred and do not expect to incur liability under
Title IV of ERISA with respect to the termination of, or withdrawal from,
any pension plan for which the Company or any of its subsidiaries would
have any liability; and each such pension plan that is intended to be
qualified under Section 401(a) of the Code has filed for or received a
favorable determination letter from the Internal Revenue Service and the
Company has not amended any such pension plan in any way that could
reasonably be expected to cause the loss of such qualification.
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(z) There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission or other release of any kind of
toxic or other wastes or other hazardous substances by, due to or caused by
the Company or any of its subsidiaries (or, to the best knowledge of the
Company, any other entity (including any predecessor) for whose acts or
omissions the Company or any of its subsidiaries is or could reasonably be
expected to be liable) upon any of the property now or previously owned or
leased by the Company or any of its subsidiaries, or upon any other
property, in violation of any statute or any ordinance, rule, regulation,
order, judgment, decree or permit or which would, under any statute or any
ordinance, rule (including rule of common law), regulation, order,
judgment, decree or permit, give rise to any liability, except for any
violation or liability that could not reasonably be expected to have,
singularly or in the aggregate with all such violations and liabilities, a
Material Adverse Effect; and there has been no disposal, discharge,
emission or other release of any kind onto such property or into the
environment surrounding such property of any toxic or other wastes or other
hazardous substances with respect to which the Company has knowledge,
except for any such disposal, discharge, emission or other release of any
kind which could not reasonably be expected to have, singularly or in the
aggregate with all such discharges and other releases, a Material Adverse
Effect.
(aa) Neither the Company nor, to the best knowledge of the Company
and the Subsidiary Guarantor, any director, officer, agent, employee or
other person associated with or acting on behalf of the Company or any of
its subsidiaries has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; (ii) made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from corporate
funds; (iii) violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977, as amended; or (iv) made any unlawful bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(bb) Except as described in the Offering Memorandum, there are no
outstanding subscriptions, rights, warrants, calls or options to acquire,
or instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, any shares of
capital stock of or other equity or other ownership interest in the Company
or any of its subsidiaries.
(cc) Neither the Company nor any of its subsidiaries owns any "margin
securities" as that term is defined in Regulation U of the Board of
Governors of the Federal Reserve System (the "Federal Reserve Board"), and
none of the proceeds of the sale of the Securities will be used, directly
or indirectly, for the purpose of purchasing or carrying any margin
security, for the purpose of reducing or retiring any indebtedness which
was originally incurred to purchase or carry any margin security or for any
other purpose which might cause any of the Securities to be considered a
"purpose credit" within the meanings of Regulation T, U or X of the Federal
Reserve Board.
(dd) Neither the Company nor any of its subsidiaries is a party to
any contract, agreement or understanding with any person that would give
rise to a valid claim against
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the Company or the Initial Purchasers for a brokerage commission, finder's
fee or like payment in connection with the offering and sale of the
Securities.
(ee) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(ff) None of the Company, any of its affiliates or any person acting
on its or their behalf has engaged or will engage in any directed selling
efforts (as such term is defined in Regulation S under the Securities Act
("Regulation S")), and all such persons have complied and will comply with
the offering restrictions requirement of Regulation S to the extent
applicable; provided that no representation or warranty is made with
respect to CSI.
(gg) Neither the Company nor any of its affiliates has, directly or
through any agent, sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of, any security (as such term is defined
in the Securities Act), which is or will be integrated with the sale of the
Securities in a manner that would require registration of the Securities
under the Securities Act.
(hh) None of the Company or any of its affiliates or any other person
acting on its or their behalf has engaged, in connection with the offering
of the Securities, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act.
(ii) There are no securities of the Company registered under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or listed
on a national securities exchange or quoted in a U.S. automated inter-
dealer quotation system.
(jj) Neither the Company nor the Subsidiary Guarantor has taken or
will take, directly or indirectly, any action prohibited by Regulation M
under the Exchange Act in connection with the offering of the Securities.
(kk) No forward-looking statement (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act) contained in the
Preliminary Offering Memorandum or the Offering Memorandum has been made or
reaffirmed without a reasonable basis or has been disclosed other than in
good faith.
(ll) None of the Company or any of its subsidiaries does business
with the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Florida Statutes Section 517.075.
(mm) The Company and its subsidiaries are in the process of
evaluating the accuracy of the representations made by (i) the vendors from
whom components of the Company's internal information technology systems
were purchased and (ii) the vendors from whom all network hardware was
purchased regarding the risk that the products sold by such vendors may be
unable to recognize and properly execute date-sensitive functions involving
certain dates prior to and any dates after December 31, 1999 (the
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"Year 2000 Problem"), and have determined that such evaluation will be
completed on a timely basis without material expense; and the Company
believes, after due inquiry, that each supplier, vendor, customer or
financial service organization used or serviced by the Company and its
subsidiaries has remedied or will remedy on a timely basis the Year 2000
Problem.
(nn) Since the date as of which information is given in the Offering
Memorandum, (i) there has been no material adverse change or any
development involving a prospective material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs,
management or business prospects of the Company and its subsidiaries, taken
as a whole, whether or not arising in the ordinary course of business, (ii)
neither the Company nor the Subsidiary Guarantor has incurred any material
liability or obligation, direct or contingent, other than in the ordinary
course of business, (iii) neither the Company nor the Subsidiary Guarantor
has entered into any material transaction other than in the ordinary course
of business and (iv) there has not been any change in the capital stock or
long-term debt of the Company or the Subsidiary Guarantor, or any dividend
or distribution of any kind declared, paid or made by the Company or the
Subsidiary Guarantor on any class of their respective capital stock, other
than, with respect to long-term debt of the Company, the issuance of
additional junior subordinated notes pursuant to the Note Purchase
Agreement dated as of May 11, 1998, between the Company and Lucent
Technologies Inc. (the "Lucent Note Purchase Agreement").
(oo) (i) The Company and its subsidiaries have the full use and
benefit of all broadband personal communications services ("PCS") licenses
issued by the Federal Communications Commission (the "FCC") to the Company
and its subsidiaries (the "Licenses") necessary to operate assets
constituting a radio communications system authorized under the rules for
wireless communications services (including any license and the network,
marketing, distribution, sales, customer interface and operations functions
relating thereto) owned and operated by the Company or any of its
subsidiaries in the Major Trading Areas (as defined in 47 C.F.R. (S)24.202)
and the Basic Trading Areas (as defined in 47 C.F.R. (S)24.202) listed on
Parts A, B, C and D of Exhibit B attached hereto and each other area in
which the Company or any of its subsidiaries conducts a broadband PCS
business and will have the full use and benefit of the Licenses listed on
(A) Part E of Exhibit B upon consummation of the acquisition of a 20 MHz
PCS license covering the San Juan MTA from AT&T Corporation and (B) Part F
of Exhibit B upon consummation of acquisition of 15 MHz C-Block PCS
licenses covering the Louisiana BTAs of Alexandria, Lake Charles and Monroe
from Wireless 2000, Inc.; (ii) such Licenses have been duly issued by the
FCC, are (in the case of Licenses listed on Parts A, B, C and D of Exhibit
B) or will be (upon consummation of the relevant transaction in the case of
Licenses listed on Parts E and F of Exhibit B) held by a wholly owned
subsidiary of the Company and are in full force and effect and (iii) the
Company and its subsidiaries are in compliance in all material respects
with all of the provisions of each such License held by any of them.
(pp) (i) The Company and each of its subsidiaries are in compliance
in all material respects with the Communications Act of 1934, and any
similar or successor
12
federal statute, and the rules and regulations and published policies of
the FCC thereunder, as amended and as in effect from time to time
(collectively, the "Communications Act"), and all requirements of the FCC,
including the "very small business" requirements; (ii) the Company has no
knowledge of any investigation, notice of apparent liability, violation,
forfeiture or other order or complaint issued by or before the FCC, or of
any other proceedings (other than proceedings relating to the wireless
communications industries generally) of or before the FCC, which could
reasonably be expected to have a Material Adverse Effect; (iii) no event
has occurred which (A) has resulted in, or after notice or lapse of time or
both would result in, revocation, suspension, adverse modifications, non-
renewal, impairment, restriction or termination of, or order of forfeiture
with respect to, any License in any respect which could reasonably be
expected to have a Material Adverse Effect or (B) affects or could
reasonably be expected in the future to affect any of the rights of the
Company or any of its subsidiaries under any License held by the Company or
any of its subsidiaries in any respect which could reasonably be expected
to have a Material Adverse Effect; (iv) the Company and each of its
subsidiaries have duly filed in a timely manner all material filings,
reports, applications, documents, instruments and information required to
be filed under the Communications Act, and all such filings were when made
true, correct and complete in all material respects; and (v) the Company
has no reason to believe that each License of the Company or any of its
subsidiaries will not be renewed in the ordinary course.
(qq) The Company is in compliance with its "Minimum Build-Out Plan",
as defined in the Securities Purchase Agreement dated January 23, 1998,
among AT&T Wireless PCS Inc., TWR Cellular, Inc., the Cash Equity Investors
(as identified therein), the TeleCorp Investors (as identified therein),
Gerald Vento, Thomas Sullivan and the Company (the "Securities Purchase
Agreement").
2. Purchase and Resale of the Securities. (a) On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and conditions set forth herein, the Company agrees to issue and sell to
each of the Initial Purchasers, severally and not jointly, and each of the
Initial Purchasers, severally and not jointly, agrees to purchase from the
Company, the principal amount at maturity of Securities set forth opposite the
name of such Initial Purchaser on Schedule 1 hereto at a purchase price equal to
55.2706% of the principal amount at maturity thereof. The Company shall not be
obligated to deliver any of the Securities except upon payment for all of the
Securities to be purchased as provided herein.
(b) The Initial Purchasers have advised the Company that they propose
to offer the Securities for resale upon the terms and subject to the conditions
set forth herein and in the Offering Memorandum. Each Initial Purchaser,
severally and not jointly, represents, warrants and agrees that (i) it is
purchasing the Securities pursuant to a private sale exempt from registration
under the Securities Act, (ii) it has not solicited offers for, or offered or
sold, and will not solicit offers for, or offer or sell, the Securities by means
of any form of general solicitation or general advertising within the meaning of
Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any
manner involving a public offering within the meaning of Section 4(2) of the
Securities Act and (iii) it has solicited and will solicit offers for the
Securities only from, and has offered or sold and will offer, sell or deliver
the Securities, as part of their
13
initial offering, only (A) within the United States to persons whom it
reasonably believes to be qualified institutional buyers ("Qualified
Institutional Buyers"), as defined in Rule 144A under the Securities Act ("Rule
144A"), or if any such person is buying for one or more institutional accounts
for which such person is acting as fiduciary or agent, only when such person has
represented to it that each such account is a Qualified Institutional Buyer to
whom notice has been given that such sale or delivery is being made in reliance
on Rule 144A and in each case, in transactions in accordance with Rule 144A and
(B) outside the United States to persons other than U.S. persons in reliance on
Regulation S.
(c) In connection with the offer and sale of Securities in reliance
on Regulation S, each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) the Securities have not been registered under the Securities
Act and may not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons except pursuant to an exemption
from, or in transactions not subject to, the registration requirements of
the Securities Act;
(ii) such Initial Purchaser has offered and sold the Securities, and
will offer and sell the Securities, (A) as part of their distribution at
any time and (B) otherwise until 40 days after the later of the
commencement of the offering of the Securities and the Closing Date, only
in accordance with Regulation S or Rule 144A or any other available
exemption from registration under the Securities Act;
(iii) none of such Initial Purchaser or any of its affiliates or any
other person acting on its or their behalf has engaged or will engage in
any directed selling efforts with respect to the Securities, and all such
persons have complied and will comply with the offering restriction
requirements of Regulation S;
(iv) at or prior to the confirmation of sale of any Securities sold
in reliance on Regulation S, it will have sent to each distributor, dealer
or other person receiving a selling concession, fee or other remuneration
that purchases Securities from it during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and may not
be offered or sold within the United States or to, or for the account
or benefit of, U.S. persons (i) as part of their distribution at any
time or (ii) otherwise until 40 days after the later of the
commencement of the offering of the Securities and the date of
original issuance of the Securities, except in accordance with
Regulation S or Rule 144A or any other available exemption from
registration under the Securities Act. Terms used above have the
meanings given to them by Regulation S."; and
(v) it and each of its affiliates has not and will not enter into
any contractual arrangement with any distributor with respect to the
distribution of the Securities, except with its affiliates or with the
prior written consent of the Company.
14
Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that (i) it has not offered or sold and prior to the date
that is six months after the Closing Date will not offer or sell any Securities
to persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has complied and will comply with all
applicable provisions of the Financial Services Act 1986 and the Public Offers
of Securities Regulations 1995 with respect to anything done by it in relation
to the Securities 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 issue of the
Securities to a person who is of a kind described in Article 11(3) of the
Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996
or is a person to whom such document may otherwise lawfully be issued or passed
on.
(e) Each Initial Purchaser, severally and not jointly, agrees that,
prior to or simultaneously with the confirmation of sale by such Initial
Purchaser to any purchaser of any of the Securities purchased by such Initial
Purchaser from the Company pursuant hereto, such Initial Purchaser shall furnish
to that purchaser a copy of the Offering Memorandum (and any amendment or
supplement thereto that the Company shall have furnished to such Initial
Purchaser prior to the date of such confirmation of sale). In addition to the
foregoing, each Initial Purchaser acknowledges and agrees that the Company and,
for purposes of the opinions to be delivered to the Initial Purchasers pursuant
to Sections 5(d) and (e), counsel for the Company and for the Initial
Purchasers, respectively, may rely upon the accuracy of the representations and
warranties of the Initial Purchasers and their compliance with their agreements
contained in this Section 2, and each Initial Purchaser hereby consents to such
reliance.
(f) Each Initial Purchaser, severally and not jointly, represents and
warrants that this Agreement has been duly authorized, executed and delivered by
such Initial Purchaser.
(g) The Company and the Subsidiary Guarantor acknowledge and agree
that the Initial Purchasers may sell Securities to any affiliate of an Initial
Purchaser and that any such affiliate may sell Securities purchased by it to an
Initial Purchaser.
3. Delivery of and Payment for the Securities. (a) Delivery of and
payment for the Securities shall be made at the offices of Cravath, Swaine &
Moore, New York, New York, or at such other place as shall be agreed upon by the
Initial Purchasers and the Company, at 10:00 a.m., New York City time, on April
23, 1999, or at such other time or date, not later than seven full business days
thereafter, as shall be agreed upon by the Initial Purchasers and the Company
(such date and time of payment and delivery being referred to herein as the
"Closing Date").
(b) On the Closing Date, payment of the purchase price for the
Securities shall be made to the Company by wire or book-entry transfer of same-
day funds to such account or accounts as the Company shall specify prior to the
Closing Date or by such other means as the
15
parties hereto shall agree prior to the Closing Date against delivery to the
Initial Purchasers of the certificates evidencing the Securities. Time shall be
of the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligations of the Initial Purchasers
hereunder. Upon delivery, the Securities shall be in global form, registered in
such names and in such denominations as CSI on behalf of the Initial Purchasers
shall have requested in writing not less than two full business days prior to
the Closing Date. The Company agrees to make one or more global certificates
evidencing the Securities available for inspection by CSI on behalf of the
Initial Purchasers in New York, New York at least 24 hours prior to the Closing
Date.
4. Further Agreements of the Company and the Subsidiary Guarantor.
The Company and the Subsidiary Guarantor agree with each of the several Initial
Purchasers:
(a) at all times prior to the resale of the Securities by the Initial
Purchasers, to advise the Initial Purchasers promptly and, if requested,
confirm such advice in writing, of the happening of any event which makes
any statement of a material fact made in the Offering Memorandum untrue or
which requires the making of any additions to or changes in the Offering
Memorandum (as amended or supplemented from time to time) in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; to advise the Initial Purchasers of any order of
any governmental authority preventing or suspending the use of the
Preliminary Offering Memorandum or the Offering Memorandum, of any
suspension of the qualification of the Securities for offering or sale in
any jurisdiction and of the initiation or threatening of any proceeding for
any such purpose promptly upon receipt of notice of such order, suspension
or initiation or threatening of any such proceeding; and, prior to the
resale of the Securities by the Initial Purchasers, to use its best efforts
to prevent the issuance of any such order preventing or suspending the use
of the Preliminary Offering Memorandum or the Offering Memorandum or
suspending any such qualification and, if any such suspension is issued, to
obtain the lifting thereof at the earliest possible time and thereafter to
use commercially reasonable efforts to prevent the issuance of any such
order preventing or suspending the use of the Preliminary Offering
Memorandum or the Offering Memorandum or suspending any such qualification
and, if any such suspension is issued, to obtain the lifting thereof at the
earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and counsel
for the Initial Purchasers, without charge, as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum (and any
amendments or supplements thereto) as may be reasonably requested;
(c) prior to making any amendment or supplement to the Offering
Memorandum, to furnish a copy thereof to each of the Initial Purchasers and
counsel for the Initial Purchasers and not to effect any such amendment or
supplement to which the Initial Purchasers shall reasonably object by
notice to the Company after a reasonable period (under the circumstances)
to review;
(d) if, at any time prior to completion of the resale of the
Securities by the Initial Purchasers, any event shall occur or condition
exist as a result of which it is necessary, in
16
the reasonable opinion of counsel for the Initial Purchasers or counsel for
the Company, to amend or supplement the Offering Memorandum in order that
the Offering Memorandum will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the time
it is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Offering Memorandum to comply with applicable law,
to promptly prepare such amendment or supplement as may be necessary to
correct such untrue statement or omission or so that the Offering
Memorandum, as so amended or supplemented, will comply with applicable law;
(e) for so long as the Securities are outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act,
to furnish to holders of the Securities and prospective purchasers of the
Securities designated by such holders, upon request of such holders or such
prospective purchasers, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act, unless the Company is then
subject to and in compliance with Section 13 or 15(d) of the Exchange Act
(the foregoing agreement being for the benefit of the holders from time to
time of the Securities and prospective purchasers of the Securities
designated by such holders);
(f) for so long as the Securities are outstanding, to furnish to the
Initial Purchasers copies of any annual reports, quarterly reports and
current reports filed by the Company with the Commission on Forms 10-K, 10-
Q and 8-K, or such other similar forms as may be designated by the
Commission, and such other documents, reports and information as shall be
furnished by the Company to the Trustee or to the holders of the Securities
pursuant to the Indenture or the Exchange Act or any rule or regulation of
the Commission thereunder;
(g) to promptly take from time to time such actions as the Initial
Purchasers may reasonably request to qualify the Securities for offering
and sale under the securities or Blue Sky laws of such jurisdictions as the
Initial Purchasers may designate and to continue such qualifications in
effect for so long as required for the resale of the Securities; and to
arrange for the determination of the eligibility for investment of the
Securities under the laws of such jurisdictions as the Initial Purchasers
may reasonably request; provided that the Company and its subsidiaries
shall not be obligated to qualify as foreign corporations in any
jurisdiction in which they are not so qualified or to file a general
consent to service of process in any jurisdiction;
(h) to provide reasonable assistance to the Initial Purchasers in
arranging for the Securities to be designated Private Offerings, Resales
and Trading through Automated Linkages ("PORTAL") Market securities in
accordance with the rules and regulations adopted by the National
Association of Securities Dealers, Inc. ("NASD") relating to trading in the
PORTAL Market and for the Securities to be eligible for clearance and
settlement through The Depository Trust Company ("DTC");
(i) not to, and to cause its affiliates not to, sell, offer for sale
or solicit offers to buy or otherwise negotiate in respect of any security
(as such term is defined in the
17
Securities Act) which could be integrated with the sale of the Securities
in a manner which would require registration of the Securities under the
Securities Act;
(j) except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may
be, not to, and to cause its affiliates not to, and not to authorize or
knowingly permit any person acting on their behalf to, solicit any offer to
buy or offer to sell the Securities by means of any form of general
solicitation or general advertising within the meaning of Regulation D or
in any manner involving a public offering within the meaning of Section
4(2) of the Securities Act; and not to offer, sell, contract to sell or
otherwise dispose of, directly or indirectly, any securities under
circumstances where such offer, sale, contract or disposition would cause
the exemption afforded by Section 4(2) of the Securities Act to cease to be
applicable to the offering and sale of the Securities as contemplated by
this Agreement and the Offering Memorandum;
(k) for a period of 180 days from the date of the Offering
Memorandum, not to offer for sale, sell, contract to sell or otherwise
dispose of, directly or indirectly, or file a registration statement for,
or announce any offer, sale, contract for sale of or other disposition of
any debt securities issued or guaranteed by the Company or any of its
subsidiaries (other than (i) the Securities or the Exchange Securities (ii)
notes issued by the Company pursuant to the Lucent Note Purchase Agreement
(iii) debt securities issued or guaranteed by the Company or any of its
subsidiaries pursuant to any Vendor Credit Arrangement; provided that any
such Vendor Credit Arrangement contains terms prohibiting the remarketing
of all debt securities issued or guaranteed thereunder for a period of not
less than 180 days from the date of the Offering Memorandum and (iv) any
debt securities issued by the Company or any of its Subsidiaries to the
U.S. Government in connection with the acquisition of any License from the
FCC or any debt securities assumed by the Company or any of its
subsidiaries in connection with the acquisition of any License or any
entity engaged in a Permitted Business).
(l) during the period from the Closing Date until two years after the
Closing Date, without the prior written consent of the Initial Purchasers,
not to, and not permit any of its affiliates (as defined in Rule 144 under
the Securities Act) to, resell any of the Securities that have been
reacquired by them, except for Securities purchased by the Company or any
of its affiliates and resold in a transaction registered under the
Securities Act;
(m) not to, for two years following the date on which the Securities
are issued, be or become, or be or become owned by, an open-end investment
company, unit investment trust or face-amount certificate company that is
or is required to be registered under Section 8 of the Investment Company
Act, and to not be or become, or be or become owned by, a closed-end
investment company required to be registered, but not registered
thereunder;
(n) in connection with the offering of the Securities, until CSI on
behalf of the Initial Purchasers shall have notified the Company of the
completion of the resale of the Securities, not to, and to cause its
affiliated purchasers (as defined in Regulation M
18
under the Exchange Act) not to, either alone or with one or more other
persons, bid for or purchase, for any account in which it or any of its
affiliated purchasers has a beneficial interest, any Securities, or attempt
to induce any person to purchase any Securities; and not to, and to cause
its affiliated purchasers not to, make bids or purchase for the purpose of
creating actual, or apparent, active trading in or of raising the price of
the Securities;
(o) in connection with the offering of the Securities, to make its
officers, employees, independent accountants and legal counsel reasonably
available upon request by the Initial Purchasers;
(p) to furnish to each of the Initial Purchasers on the Closing Date
a copy of the independent accountants' report included in the Offering
Memorandum signed by the accountants rendering such report;
(q) to do and perform all things required to be done and performed by
it under this Agreement that are within its control prior to or after the
Closing Date, and to use commercially reasonable efforts to satisfy all
conditions precedent on its part to the delivery of the Securities;
(r) to not take any action prior to the Closing Date which would
require the Offering Memorandum to be amended or supplemented pursuant to
Section 4(d);
(s) prior to the Closing Date, not to issue any press release or
other communication directly or indirectly or hold any press conference
with respect to the Company, its condition, financial or otherwise, or
earnings, business affairs or business prospects (except for routine oral
marketing communications in the ordinary course of business and consistent
with the past practices of the Company and of which the Initial Purchasers
are notified), without the prior written consent of the Initial Purchasers,
unless in the judgment of the Company and its counsel, and after
notification to the Initial Purchasers, such press release or communication
is required by law;
(t) to apply the net proceeds from the sale of the Securities as set
forth in the Offering Memorandum under the heading "Use of Proceeds"; and
(u) that Sections 4(b) and 4(c) of the Year 2000 Information and
Readiness Disclosure Act are inapplicable to this Agreement and to waive
any defenses arising under such act in any action or proceeding relating to
this Agreement or the transactions contemplated hereby.
5. Conditions of Initial Purchasers' Obligations. The respective
obligations of the several Initial Purchasers hereunder are subject to the
accuracy, on and as of the date hereof and the Closing Date, of the
representations and warranties of the Company and the Subsidiary Guarantor
contained herein, to the accuracy of the statements of the Company and the
Subsidiary Guarantor and their respective officers made in any certificates
delivered pursuant hereto, to the performance by the Company and the Subsidiary
Guarantor of their respective obligations hereunder, and to each of the
following additional terms and conditions:
19
(a) The Offering Memorandum (and any amendments or supplements
thereto) shall have been printed and copies distributed to the Initial
Purchasers as promptly as practicable on or following the date of this
Agreement or at such other date and time as to which the Initial Purchasers
may agree; and no stop order suspending the sale of the Securities in any
jurisdiction shall have been issued and no proceeding for that purpose
shall have been commenced or shall be pending or threatened.
(b) None of the Initial Purchasers shall have discovered and
disclosed to the Company on or prior to the Closing Date that the Offering
Memorandum or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of counsel for the Initial
Purchasers, is material or omits to state any fact which, in the opinion of
such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of the Transaction Documents and
the Offering Memorandum, and all other legal matters relating to the
Transaction Documents and the transactions contemplated thereby, shall be
satisfactory in all material respects to the Initial Purchasers, and the
Company shall have furnished to the Initial Purchasers all documents and
information that they or their counsel may reasonably request to enable
them to pass upon such matters.
(d) McDermott, Will & Emery shall have furnished to the Initial
Purchasers their written opinion, as counsel to the Company, addressed to
the Initial Purchasers and dated the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchasers, substantially to the
effect set forth in Annex B hereto. Wiley, Rein & Fielding shall have
furnished to the Initial Purchasers their written opinion, as special
communications 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, substantially to the effect set
forth in Annex C hereto.
(e) The Initial Purchasers shall have received from Cravath, Swaine &
Moore, counsel for the Initial Purchasers, such opinion or opinions, dated
the Closing Date, with respect to such matters as the Initial Purchasers
may reasonably require, and the Company shall have furnished to such
counsel such documents and information as they request for the purpose of
enabling them to pass upon such matters.
(f) The Company shall have furnished to the Initial Purchasers a
letter (the "Initial Letter") of PricewaterhouseCoopers LLP, addressed to
the Initial Purchasers and dated the date hereof, in form and substance
satisfactory to the Initial Purchasers, substantially to the effect set
forth in Annex D hereto.
(g) The Company shall have furnished to the Initial Purchasers a
letter (the "Bring-Down Letter") of PricewaterhouseCoopers LLP, addressed
to the Initial Purchasers and dated the Closing Date, (i) confirming that
they are independent public accountants with respect to the Company and its
subsidiaries within the meaning of
20
Rule 101 of the Code of Professional Conduct of the AICPA and its
interpretations and rulings thereunder, (ii) stating, as of the date of the
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
three business days prior to the date of the Bring-Down Letter), that the
conclusions and findings of such accountants with respect to the financial
information and other matters covered by the Initial Letter are accurate
and (iii) confirming in all material respects the conclusions and findings
set forth in the Initial Letter.
(h) The Company shall have furnished to the Initial Purchasers a
certificate, dated the Closing Date, of its Chief Executive Officer and its
Chief Financial Officer and the Subsidiary Guarantor shall have furnished
to the Initial Purchasers a certificate, dated the Closing Date, of its
Chief Executive Officer and its Treasurer, in each case stating that (i)
such officers have carefully examined the Offering Memorandum, (ii) in
their opinion, the Offering Memorandum, as of its date, 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 in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and 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 so that the Offering Memorandum (as so
amended or supplemented) would not include any untrue statement of a
material fact and would not omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
(iii) as of the Closing Date, the representations and warranties of the
Company or the Subsidiary Guarantor, as applicable, in this Agreement are
true and correct in all material respects, the Company or the Subsidiary
Guarantor, as applicable, has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder on or
prior to the Closing Date and (iv) with respect to officers of the Company
only, subsequent to the date of the most recent financial statements
contained in the Offering Memorandum, there has been no material adverse
change in the financial position or results of operation of the Company or
any of its subsidiaries, or any material change, or any material
development including a prospective material change, in or affecting the
condition (financial or otherwise), results of operations, business or
prospects of the Company and its subsidiaries taken as a whole, which is
not disclosed in the Offering Memorandum.
(i) The Initial Purchasers shall have received a counterpart of the
Registration Rights Agreement which shall have been executed and delivered
by a duly authorized officer of the Company and the Subsidiary Guarantor.
(j) The Indenture shall have been duly executed and delivered by the
Company, the Subsidiary Guarantor and the Trustee, and the Securities shall
have been duly executed and delivered by the Company and duly authenticated
by the Trustee.
(k) The Securities shall have been approved by the NASD for trading
in the PORTAL Market.
21
(l) If any event shall have occurred that requires the Company under
Section 4(d) to prepare an amendment or supplement to the Offering Memorandum,
such amendment or supplement shall have been prepared, the Initial Purchasers
shall have been given a reasonable opportunity to comment thereon, and copies
thereof shall have been delivered to the Initial Purchasers reasonably in
advance of the Closing Date.
(m) There shall not have occurred any invalidation of Rule 144A under
the Securities Act by any court or any withdrawal or proposed withdrawal of any
rule or regulation under the Securities Act or the Exchange Act by the
Commission or any amendment or proposed amendment thereof by the Commission
which in the reasonable judgment of the Initial Purchasers would materially
impair the ability of the Initial Purchasers to purchase, hold or effect resales
of the Securities as contemplated hereby.
(n) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Offering Memorandum
(exclusive of any amendment or supplement thereto), there shall not have been
any change in the capital stock or long-term debt (other than, with respect to
long-term debt, the issuance of additional junior subordinated notes pursuant to
the Lucent Note Purchase Agreement) or any change, or any development involving
a prospective change, in or affecting the condition (financial or otherwise),
results of operations, business or prospects of the Company and its subsidiaries
taken as a whole, the effect of which, in any such case described above, is, in
the reasonable judgment of the Initial Purchasers, so material and adverse as to
make it impracticable or inadvisable to proceed with the sale or delivery of the
Securities on the terms and in the manner contemplated by this Agreement and the
Offering Memorandum (exclusive of any amendment or supplement thereto).
(o) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental agency
or body which would, as of the Closing Date, prevent the issuance or sale of the
Securities in any jurisdiction in which issuance or sale of the Securities is
contemplated by the Offering Memorandum; and no injunction, restraining order or
order of any other nature by any federal or state court of competent
jurisdiction shall have been issued as of the Closing Date which would prevent
the issuance or sale of the Securities in any jurisdiction in which the issuance
or sale of the Securities is contemplated by the Offering Memorandum.
(p) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Securities or any of
the Company's other debt securities or preferred stock by any "nationally
recognized statistical rating organization", as such term is defined by the
Commission for purposes of Rule 436(g)(2) of the rules and regulations of the
Commission under the Securities Act, and (ii) no such organization shall have
publicly announced that it has under surveillance or review (other than an
announcement with positive implications of a possible upgrading), its rating of
the Securities or any of the Company's other debt securities or preferred stock.
(q) 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
22
Stock Exchange, the American Stock Exchange or the over-the-counter market
shall have been suspended or limited, or minimum prices shall have been
established on any such exchange or market by the Commission, by any such
exchange or by any other regulatory body or governmental authority having
jurisdiction, or trading in any securities of the Company on any exchange
or in the over-the-counter market shall have been suspended, (ii) any
moratorium on commercial banking activities shall have been declared by
federal or New York state authorities, (iii) an outbreak or escalation of
hostilities or a declaration by the United States of a national emergency
or war or (iv) 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) the effect of which,
in the case of this clause (iv), is, in the judgment of the Initial
Purchasers, so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or the delivery of the Securities on
the terms and in the manner contemplated by this Agreement and in the
Offering Memorandum (exclusive of any amendment or supplement thereto).
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.
6. Termination. The obligations of the Initial Purchasers hereunder
may be terminated by the Initial Purchasers, in their absolute discretion, by
notice given to and received by the Company prior to delivery of and payment for
the Securities if, prior to that time, any of the events described in Section
5(m), (n), (o), (p) or (q) shall have occurred and be continuing.
7. Defaulting Initial Purchasers. (a) If, on the Closing Date, any
Initial Purchaser defaults in the performance of its obligations under this
Agreement, the non-defaulting Initial Purchasers may make arrangements for the
purchase of the Securities which such defaulting Initial Purchaser agreed but
failed to purchase by other persons satisfactory to the Company and the non-
defaulting Initial Purchasers, but if no such arrangements are made within 36
hours after such default, this Agreement shall terminate without liability on
the part of the non-defaulting Initial Purchasers or the Company, except that
the Company and the Subsidiary Guarantor will continue to be liable for the
payment of expenses to the extent set forth in Sections 8 and 12 and except that
the provisions of Sections 9 and 10 shall not terminate and shall remain in
effect. As used in this Agreement, the term "Initial Purchasers" includes, for
all purposes of this Agreement unless the context otherwise requires, any party
not listed in Schedule 1 hereto that, pursuant to this Section 7, purchases
Securities which a defaulting Initial Purchaser agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Company or any non-defaulting
Initial Purchaser for damages caused by its default. If other persons are
obligated or agree to purchase the Securities of a defaulting Initial Purchaser,
either the non-defaulting Initial Purchasers or the Company may postpone the
Closing Date for up to seven full business days in order to effect any changes
that in the opinion of counsel for the Company or counsel for the Initial
Purchasers may be necessary in the Offering Memorandum or in any other document
or arrangement, and the Company agrees to
23
promptly prepare any amendment or supplement to the Offering Memorandum that
effects any such changes.
8. Reimbursement of Initial Purchasers' Expenses. If (a) this
Agreement shall have been terminated pursuant to Section 6 or 7, (b) the Company
shall fail to tender the Securities for delivery to the Initial Purchasers for
any reason permitted under this Agreement or (c) the Initial Purchasers shall
decline to purchase the Securities for any reason permitted under this
Agreement, the Company and the Subsidiary Guarantor shall reimburse the Initial
Purchasers for such out-of-pocket expenses (including reasonable fees and
disbursements of counsel) as shall have been reasonably incurred by the Initial
Purchasers in connection with this Agreement and the proposed purchase and
resale of the Securities. If this Agreement is terminated pursuant to Section 7
by reason of the default of one or more of the Initial Purchasers, the Company
and the Subsidiary Guarantor shall not be obligated to reimburse any defaulting
Initial Purchaser on account of such expenses.
9. Indemnification. (a) The Company and the Subsidiary Guarantor
shall jointly and severally indemnify and hold harmless each Initial Purchaser,
its affiliates, their respective officers, directors, employees, representatives
and agents, and each person, if any, who controls any Initial Purchaser within
the meaning of the Securities Act or the Exchange Act (collectively referred to
for purposes of this Section 9(a) and Section 10 as an Initial Purchaser), from
and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, without limitation, any loss, claim,
damage, liability or action relating to purchases and sales of the Securities),
to which that Initial Purchaser may become subject, whether commenced or
threatened, under the Securities Act, the Exchange Act, any other federal or
state statutory law or regulation, at common law 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 in
the Preliminary Offering Memorandum or the Offering Memorandum or in any
amendment or supplement thereto or in any information provided by the Company
pursuant to Section 4(e) or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and shall reimburse each Initial Purchaser promptly
upon demand for any legal or other expenses reasonably incurred by that Initial
Purchaser in connection with investigating or defending or preparing to defend
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company and the Subsidiary Guarantor 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, an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with any Initial Purchasers' Information; and
provided, further, that with respect to any such untrue statement in or omission
from the Preliminary Offering Memorandum, the indemnity agreement contained in
this Section 9(a) shall not inure to the benefit of any such Initial Purchaser
to the extent that the sale to the person asserting any such loss, claim,
damage, liability or action was an initial resale by such Initial Purchaser and
any such loss, claim, damage, liability or action of or with respect to such
Initial Purchaser results from the fact that both (A) to the extent required by
applicable law, a copy of the Offering Memorandum was not sent or given to such
person at or prior to the written confirmation of the sale of such Securities to
such person and (B) the untrue statement in or
24
omission from the Preliminary Offering Memorandum was corrected in the Offering
Memorandum unless, in either case, such failure to deliver the Offering
Memorandum was a result of non-compliance by the Company with Section 4(b).
(b) Each Initial Purchaser, severally and not jointly, shall
indemnify and hold harmless the Company, its affiliates, their respective
officers, directors, employees, representatives and agents, and each person, if
any, who controls the Company within the meaning of the Securities Act or the
Exchange Act (collectively referred to for purposes of this Section 9(b) and
Section 10 as the Company), from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company may become subject, whether commenced or threatened, under the
Securities Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law 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 in the Preliminary
Offering Memorandum or the Offering Memorandum or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, 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 any Initial Purchasers' Information, and shall
reimburse the Company promptly upon demand for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
or preparing to defend against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
9 of 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 pursuant to Section 9(a) or 9(b), 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 9 except to the extent
that it has been prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and, provided, further, that the failure to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under this Section 9. 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 9 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 an
indemnified party shall have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (i)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (ii) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those
25
available to the indemnifying party, (iii) a conflict or potential conflict
exists (based upon advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the indemnifying
party will not have the right to direct the defense of such action on behalf of
the indemnified party) or (iv) the indemnifying party has not in fact employed
counsel reasonably satisfactory to the indemnified party to assume the defense
of such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm of attorneys (in addition to any
local counsel) at any one time for all such indemnified party or parties. Each
indemnified party, as a condition of the indemnity agreements contained in
Sections 9(a) and 9(b), shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No indemnifying
party shall 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 its written consent or if there be a final judgment for 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. No indemnifying party shall, without the
prior written consent of the indemnified party (which consent shall not be
unreasonably withheld), effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
The obligations of the Company, the Subsidiary Guarantor and the
Initial Purchasers in this Section 9 and in Section 10 are in addition to any
other liability that the Company, the Subsidiary Guarantor or the Initial
Purchasers, as the case may be, may otherwise have, including in respect of any
breaches of representations, warranties and agreements made herein by any such
party.
10. Contribution. If the indemnification provided for in Section 9
is unavailable or insufficient to hold harmless an indemnified party under
Section 9(a) or 9(b), 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 and the Subsidiary
Guarantor on the one hand and the Initial Purchasers on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Subsidiary Guarantor on the one
hand and the Initial Purchasers on the other with respect to the statements or
omissions that 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 and the Subsidiary Guarantor on the
one hand and the Initial Purchasers on the other with respect to such offering
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Securities purchased under this Agreement (before deducting
expenses) received by or on behalf of the Company and the
26
Subsidiary Guarantor, on the one hand, and the total discounts and commissions
received by the Initial Purchasers with respect to the Securities purchased
under this Agreement, on the other, bear to the total gross proceeds from the
sale of the Securities under this Agreement. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to the Company or information supplied by the Company
and the Subsidiary Guarantor on the one hand or to any Initial Purchasers'
Information on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company, the Subsidiary Guarantor and the
Initial Purchasers agree that it would not be just and equitable if
contributions pursuant to this Section 10 were to be determined by pro rata
allocation (even if the Initial Purchasers were treated as one entity for such
purpose) or by any other method of allocation that does not take 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 10 shall be deemed
to include, for purposes of this Section 10, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending or preparing to defend any such action or claim. Notwithstanding
the provisions of this Section 10, no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total discounts and
commissions received by such Initial Purchaser with respect to the Securities
purchased by it under this Agreement exceeds the amount of any damages which
such Initial Purchaser has 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 fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Initial Purchasers'
obligations to contribute as provided in this Section 10 are several in
proportion to their respective purchase obligations and not joint.
11. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchasers, the Company,
the Subsidiary Guarantor and their respective successors. This Agreement and
the terms and provisions hereof are for the sole benefit of only those persons,
except as provided in Sections 9 and 10 with respect to affiliates, officers,
directors, employees, representatives, agents and controlling persons of the
Company, the Subsidiary Guarantor and the Initial Purchasers and in Section 4(e)
with respect to holders and prospective purchasers of the Securities. Nothing
in this Agreement is intended or shall be construed to give any person, other
than the persons referred to in this Section 11, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained
herein.
12. Expenses. The Company and the Subsidiary Guarantor agree with
the Initial Purchasers to pay (a) the costs incident to the authorization,
issuance, sale, preparation and delivery of the Securities and any taxes payable
in that connection; (b) the costs incident to the preparation, printing and
distribution of the Preliminary Offering Memorandum, the Offering Memorandum and
any amendments or supplements thereto; (c) the costs of reproducing and
distributing each of the Transaction Documents; (d) the costs incident to the
preparation, printing and delivery of the certificates evidencing the
Securities, including stamp duties and transfer taxes, if any, payable upon
issuance of the Securities; (e) the fees and expenses of the Company's counsel
and independent accountants; (f) the fees and expenses of qualifying the
27
Securities under the securities laws of the several jurisdictions as provided in
Section 4(h) and of preparing, printing and distributing Blue Sky Memoranda
(including related fees and expenses of counsel for the Initial Purchasers); (g)
any fees charged by rating agencies for rating the Securities; (h) the fees and
expenses of the Trustee and any paying agent (including related fees and
expenses of any counsel to such parties); (i) all expenses and application fees
incurred in connection with the application for the inclusion of the Securities
on the PORTAL Market and the approval of the Securities for book-entry transfer
by DTC; and (j) all other costs and expenses incident to the performance of the
obligations of the Company under this Agreement which are not otherwise
specifically provided for in this Section 12; provided, however, that except as
provided in this Section 12 and Section 8, the Initial Purchasers shall pay
their own costs and expenses.
13. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company, the Subsidiary
Guarantor and the Initial Purchasers contained in this Agreement or made by or
on behalf of the Company, the Subsidiary Guarantor or the Initial Purchasers
pursuant to this Agreement or any certificate delivered pursuant hereto shall
survive the delivery of and payment for the Securities and shall remain in full
force and effect, regardless of any termination or cancelation of this Agreement
or any investigation made by or on behalf of any of them or any of their
respective affiliates, officers, directors, employees, representatives, agents
or controlling persons.
14. 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
or telecopy transmission to Chase Securities Inc., 270 Park Avenue, New
York, New York 10017, Attention: R. David McDonough (telecopier no.: (212)
270-0994); or
(b) if to the Company or the Subsidiary Guarantor, shall be delivered
or sent by mail or telecopy transmission to the address of the Company set
forth in the Offering Memorandum, Attention: Thomas H. Sullivan (telecopier
no.: (703) 236-1376);
provided that any notice to an Initial Purchaser pursuant to Section 9(c) shall
also be delivered or sent by mail to such Initial Purchaser at its address set
forth on the signature page hereof. 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 on behalf of the Initial Purchasers by CSI.
15. Definition of Terms. For purposes of this Agreement, (a) the
term "business day" means any day on which the New York Stock Exchange, Inc. is
open for trading, (b) the term "subsidiary" has the meaning set forth in Rule
405 under the Securities Act and (c) except where otherwise expressly provided,
the term "affiliate" has the meaning set forth in Rule 405 under the Securities
Act.
16. Initial Purchasers' Information. The parties hereto acknowledge
and agree that, for all purposes of this Agreement, the Initial Purchasers'
Information consists solely of the statements concerning the Initial Purchasers
contained in the third, fifth (but only the third
28
sentence thereof), eighth, ninth (but only the third and fourth sentences
thereof) and tenth paragraphs under the heading "Plan of Distribution" in the
Preliminary Offering Memorandum and the Offering Memorandum.
17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
18. Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) 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.
19. Amendments. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
20. 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.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company, the Subsidiary
Guarantor and the several Initial Purchasers in accordance with its terms.
Very truly yours,
TELECORP PCS, INC.,
by /s/ Thomas H. Sullivan
-------------------------------------
Name: Thomas H. Sullivan
Title: Executive Vice President
TELECORP COMMUNICATIONS, INC.,
by /s/ Thomas H. Sullivan
-------------------------------------
Name: Thomas H. Sullivan
Title: President
Accepted:
CHASE SECURITIES INC.,
by /s/ R. David McDonough
--------------------------
Authorized Signatory
Address for notices pursuant to Section 9(c):
1 Chase Plaza, 25th floor
New York, New York 10081
Attention: Legal Department
BT ALEX. BROWN INCORPORATED,
by /s/ Sanjai Bijawat
--------------------------
Authorized Signatory
Address for notices pursuant to Section 9(c):
130 Liberty Street
30th Floor
New York, New York 10006
LEHMAN BROTHERS INC.,
by /s/ Paul Zoidis
---------------------------
Authorized Signatory
Address for notices pursuant to Section 9(c):
3 World Financial Center
10th Floor
New York, New York 10285
SCHEDULE 1
Principal
Amount
Initial Purchasers of Securities
------------------ -------------
Chase Securities Inc. $ 287,500,000
BT Alex. Brown Incorporated $ 143,750,000
Lehman Brothers Inc. $ 143,750,000
-------------
Total $ 575,000,000
=============
EXHIBIT A
[Subsidiaries of the Company]
EXHIBIT B
Network Area/Licenses
Part A:
Licenses contributed by AT&T Wireless PCS Inc.
pursuant to the Securities Purchase Agreement
- ----------------------------------------------------------------------
Market Number Frequency Block License Description
- ----------------------------------------------------------------------
M008 A Boston-Providence/1/,/2/
- ----------------------------------------------------------------------
M019 A St. Louis/1/,/2/
- ----------------------------------------------------------------------
M026 A Louisville-Lexington-
Evansville/1/,/2/
- ----------------------------------------------------------------------
M040 A Little Rock/2/
- ----------------------------------------------------------------------
M028 B Memphis-Jackson/1/,/2/
- ----------------------------------------------------------------------
Part B:
Licenses held by TeleCorp Holding
- -----------------------------------------------------------------------
Market Number Frequency Block License Description
- -----------------------------------------------------------------------
B034 F Beaumont-Port Arthur, TX
- -----------------------------------------------------------------------
B257 F Little Rock, AR
- -----------------------------------------------------------------------
B290 F Memphis, TN
- -----------------------------------------------------------------------
B320 F New Orleans, LA
- -----------------------------------------------------------------------
/1/ Contribution includes only a portion of the geographic area in the
referenced market as detailed in Schedule 2.1 to the Securities Purchase
Agreement.
/2/ Contribution includes only a portion of the spectrum in the referenced
frequency block.
Part C:
Licenses purchased from AT&T Wireless PCS Inc.
pursuant to the License Purchase Agreement dated as of January 23, 1998,
between the Company and AT&T Wireless PCS Inc.
- ----------------------------------------------------------------------
Market Number Frequency Block License Description
- ----------------------------------------------------------------------
B032 D Baton Rouge, LA
- ----------------------------------------------------------------------
B236 D Lafayette-New Iberia
- ----------------------------------------------------------------------
B320 D New Orleans, LA
- ----------------------------------------------------------------------
Part D:
Licenses acquired from Digital PCS, L.L.C.
- ---------------------------------------------------------------------------
Market Number Frequency Block License Description
- ---------------------------------------------------------------------------
B032 F Baton Rouge, LA
- ---------------------------------------------------------------------------
B180 F Hammond, LA
- ---------------------------------------------------------------------------
B195 F Houma-Thibodeaux, LA
- ---------------------------------------------------------------------------
B236 F Lafayette-New Iberia, LA
- ---------------------------------------------------------------------------
Part E:
License to be acquired from AT&T Corporation
- ------------------------------------------------------------------------------
Market Number Frequency Block License Description
- ------------------------------------------------------------------------------
M025 A Puerto Rico - U.S. Virgin Islands/2/
- ------------------------------------------------------------------------------
Part F:
Licenses to be acquired from Wireless 2000, Inc.
- -----------------------------------------------------------------
Market Number Frequency Block License Description
- -----------------------------------------------------------------
B009 C Alexandria, LA/2/
- -----------------------------------------------------------------
B238 C Lake Charles, LA/2/
- -----------------------------------------------------------------
B304 C Monroe, LA/2/
- -----------------------------------------------------------------