$525,000,000
9-1/8% Senior Secured Notes due 2006
of
PRICE COMMUNICATIONS WIRELESS, INC.
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PURCHASE AGREEMENT
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June 8, 1998
NATWEST CAPITAL MARKETS LIMITED
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
NESBITT BURNS SECURITIES INC.
WASSERSTEIN PERELLA SECURITIES, INC.
c/o NatWest Capital Markets Limited,
As Representative of the Purchasers,
660 Madison Avenue
New York, New York 10021
Ladies & Gentlemen:
Price Communications Wireless, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to NatWest Capital Markets Limited,
Donaldson, Lufkin & Jenrette Securities Corporation, Nesbitt Burns Securities
Inc., and Wasserstein Perella Securities, Inc. (each, a "Purchaser") an
aggregate of $525,000,000 principal amount of 9-1/8% Senior Secured Notes due
2006 (the "Notes") subject to the terms and conditions set forth herein. The
Notes will be unconditionally and jointly and severally guaranteed, on a senior
secured basis (each, a "Guarantee," collectively, the "Guarantees," and together
with the Notes, the "Securities"), by each of the guarantors listed on Schedule
A hereto (each, a "Guarantor," collectively, the "Guarantors," and together with
the Company, the "Issuers"). The Securities are to be issued pursuant to the
provisions of an indenture (the "Indenture") to be dated as of June 16, 1998
(the "Closing Date") by and between the Issuers and Bank of Montreal Trust
Company, as trustee (the "Trustee"). The Securities will be secured by a first
priority Lien on the Collateral (as defined in the Security Agreement) pursuant
to a security agreement
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(the "Security Agreement") to be dated the Closing Date
by and between the Issuers and the Trustee.
1. Offering Memorandum. The Notes will be offered and sold to you pursuant
to an exemption from the registration requirements of the Securities Act of
1933, as amended, and the rules and regulations of the Securities and Exchange
Commission thereunder (the "Act"). The Company has prepared a preliminary
offering memorandum, dated May 22, 1998 (including the documents incorporated
therein by reference, the "Preliminary Offering Memorandum"), and a final
offering memorandum, dated June 9, 1998 (including the documents incorporated
therein by reference, the "Offering Memorandum"), relating to the Issuers and
the Securities.
Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Offering Memorandum. All references herein to
"subsidiaries" or "Subsidiaries" of the Company, except where specifically
indicated otherwise, refer solely to subsidiaries of the Company as of the date
of this agreement.
Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Act, the Notes (and all
securities issued in exchange therefor or in substitution thereof) shall bear
the following legend:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR")
OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; (2) AGREES
THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(k) UNDER THE
SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES
TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING
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TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER MAY BE
OBTAINED FROM THE TRUSTEE) AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF NOTES AT THE TIME OF TRANSFER OF LESS THAN $250,000, AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE); AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED TO
ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR
PURCHASING PURSUANT TO CLAUSE (2)(C) ABOVE, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION, "UNITED STATES" AND "U.S
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER A TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
You have advised the Company that you will make offers (the "Exempt
Resales") of the Notes purchased hereunder on the terms set forth in the
Offering Memorandum, as amended or supplemented by the Company, if applicable,
solely to (i) persons whom you reasonably believe to be "qualified institutional
buyers," as defined in Rule 144A under the Act ("QIBs") and (ii) to persons
permitted to purchase Notes in offshore transactions in reliance upon Regulation
S under the Act (each, a "Regulation S Purchaser"). The QIBs and Regulation S
Purchasers who purchase Notes from the Purchasers in the initial placement
thereof are referred to herein as the "Eligible Purchasers." You have advised
the Company that you will offer the Notes to such Eligible Purchasers initially
at the price set forth on the cover of the Offering Memorandum, and that such
price may be changed at any time without notice.
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The Issuers and the Purchasers intend to enter into a registration rights
agreement (the "Registration Rights Agreement"), to be dated the Closing Date.
Pursuant to the Registration Rights Agreement, the Issuers will agree to file
with the Securities and Exchange Commission (the "Commission"), under the
circumstances set forth therein, (i) a registration statement under the Act (the
"Exchange Offer Registration Statement") relating to the 9-1/8% Senior Secured
Notes, Series B, due 2006 (the "Exchange Notes") to be offered in exchange for
the Notes (the "Exchange Offer"), or (ii) a shelf registration statement
pursuant to Rule 415 under the Act (the "Shelf Registration Statement") relating
to the resale by certain holders of the Notes, and to use their reasonable best
efforts to cause such Registration Statements to be declared effective. This
Agreement, the Notes, the Guarantees, the Security Agreement, the Indenture and
the Registration Rights Agreement are hereinafter sometimes referred to
collectively as the "Operative Documents."
2. Agreements to Sell and Purchase. On the basis of the representations and
warranties contained in this purchase agreement, hereinafter referred to as the
"Agreement," and subject to its terms and conditions, the Company agrees to
issue and sell to you, and each of the Purchasers, severally but not jointly,
agrees to purchase from the Company, the Notes in the respective principal
amount set forth opposite its name on Schedule I hereto. The aggregate purchase
price for the Notes shall be $511,875,000 (the "Purchase Price").
3. Delivery and Payment. Delivery to the Purchasers of and payment for the
Securities shall be made at 10:00 A.M., New York City time, on the Closing Date,
at the offices of Cahill Gordon & Reindel, 80 Pine Street, New York, New York
10005-1702. The Closing Date and the location of delivery of and the form of
payment for the Securities may be varied by agreement between you and the
Company.
One or more of the Notes in definitive form, registered in the name of Cede
& Co., as nominee of The Depository Trust Company ("DTC"), having an aggregate
principal amount equal to $525,000,000, shall be delivered by the Company to you
(or as you may direct), against payment by you of the Purchase Price therefor by
wire transfer in immediately available funds to such accounts with such
financial institutions as the Company may direct.
4. Agreements of the Issuers. The Issuers agree, jointly and severally,
with each of you as follows:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of the issuance by any state securities commission
of any stop order suspending the qualification or exemption from
qualification of any of the Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purpose by any
state securities commission or other regulatory authority, and (ii) of the
happening of any event which makes any statement of a material fact made in
the Offering
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Memorandum untrue or which requires the making of any additions to or
changes in the Offering Memorandum in order to make the statements therein
not misleading; provided, however, that the Issuers shall have no
obligation with respect to any such event occurring after the Closing Date
unless one or more of the Purchasers notifies the Issuers in writing at the
Closing Date that it has not completed the initial placement of the
Securities, in which case the Issuers shall have such obligation until such
Purchaser notifies the Issuers of the completion of such initial placement,
which such Purchaser shall do promptly upon such completion.
(b) To furnish to you, without charge, such number of copies of the
Preliminary Offering Memorandum and the Offering Memorandum, and any
amendments or supplements thereto, as you may reasonably request. The
Issuers consent to the use of the Preliminary Offering Memorandum and the
Offering Memorandum, and any amendments and supplements thereto prepared by
the Issuers, by you in connection with offers or sales of the Notes.
(c) Not to make any amendment or supplement to the Preliminary
Offering Memorandum or the Offering Memorandum of which you shall not
previously have been advised or to which you shall reasonably object; and
to prepare and make any amendment or supplement to the Preliminary Offering
Memorandum or the Offering Memorandum which may be necessary or advisable
in connection with the distribution of the Securities by you.
(d) If, after the date hereof, any event shall occur as a result of
which, in the reasonable judgment of the Issuers or in your reasonable
judgment, it becomes necessary to amend or supplement the Offering
Memorandum in order to make the statements therein, in light of the
circumstances under which the Offering Memorandum is delivered to an
Eligible Purchaser which is a prospective purchaser, not misleading, or, if
it is necessary to amend or supplement the Offering Memorandum to comply
with any applicable law, forthwith to prepare an appropriate amendment or
supplement to the Offering Memorandum so that the statements in the
Offering Memorandum, as so amended or supplemented, will not, in light of
the circumstances when it is so delivered, be misleading, or so that the
Offering Memorandum will comply with such applicable law; provided,
however, that the Issuers shall have no such obligation with respect to any
event occurring after the Closing Date unless one or more of the Purchasers
notifies the Issuers in writing at the Closing Date that it has not
completed the initial placement of the Securities, in which case the
Issuers shall have such obligation until such Purchaser notifies the
Issuers of the completion of such initial placement, which such Purchaser
shall do promptly upon such completion.
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(e) To cooperate with you and your counsel in connection with the
registration or qualification of the Securities for offer and sale by the
Purchasers and by dealers under the securities or Blue Sky laws of such
jurisdictions as you may request, to continue such qualification in effect
so long as required for the completion of the initial placement of the
Securities and to file such consents to service of process or other
documents as may be necessary in order to effect such registration or
qualification; provided, however, that the Issuers shall not be required in
connection therewith to register or qualify as a foreign corporation where
they are not now so qualified or to take any action that would subject them
to service of process in suits or taxation, other than as to matters and
transactions relating to the Exempt Resales, in any jurisdiction where they
are not now so subject.
(f) Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement becomes effective or is terminated, to pay
all costs, expenses, fees and taxes incident to and in connection with: (i)
the printing, filing and distribution of the Preliminary Offering
Memorandum and the Offering Memorandum (including financial statements and
exhibits) and all amendments and supplements thereto, (ii) the preparation
(including, without limitation, word processing and duplication costs) and
delivery of all preliminary and final Blue Sky memoranda, (iii) the
issuance and delivery by the Issuers of the Securities, (iv) the
qualification of the Securities for offer and sale under the securities or
Blue Sky laws of the several states (including, without limitation, the
reasonable fees and disbursements of your counsel relating to such
registration or qualification), (v) furnishing such copies of the
Preliminary Offering Memorandum and the Offering Memorandum and all
amendments and supplements thereto as may be reasonably requested for use
in connection with offers and sales of the Securities, (vi) the preparation
of certificates for the Securities (including, without limitation, printing
and engraving thereof), (vii) the fees, disbursements and expenses of the
Issuers' counsel and accountants and the Trustee for the Securities, (viii)
the rating of the Notes by investment rating agencies, and (ix) the
performance by the Issuers of their other obligations under this Agreement.
(g) To use their best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Issuers
prior to the Closing Date.
(h) To use the proceeds from the sale of the Securities in the manner
described in the Offering Memorandum under the caption "Use of Proceeds"
and consistent with that described therein under the caption "Description
of Notes -- Security."
(i) Not to claim voluntarily, and to resist actively any attempts to
claim, the benefit of any usury laws against the holders of any Securities.
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(j) Not to sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined by the Act) other than the
Securities, in a manner that would require the registration under the Act
of the sale to you or Eligible Purchasers of the Securities.
(k) For so long as any of the Notes remain outstanding and during any
period in which the Company is not subject to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make
available to any holder and any prospective purchaser of such Notes from
such holder the information specified by Rule 144A(d)(4) under the Act.
(l) Except following the effectiveness of the Exchange Offer
Registration Statement, not to, and not to authorize or knowingly permit
any person acting on its behalf to, solicit any offer to buy or offer to
sell the Securities by means of any form of general solicitation or general
advertising (as such terms are used in Regulation D under the Act) or in
any manner involving a public offering within the meaning of Section 4(2)
of the Act.
(m) To cause the Exchange Offer to be made on the appropriate form to
permit registration of the Exchange Notes to be offered in exchange for the
Notes and to comply with all applicable federal and state securities laws
in connection with the Exchange Offer.
(n) To comply with all of the agreements set forth in the Registration
Rights Agreement and all agreements set forth in the representation letter
of the Company to DTC relating to the approval of the Securities by DTC for
"book-entry" transfer.
(o) To use its best efforts to effect the inclusion of the Securities
in PORTAL.
5. Representations and Warranties. (a) The Issuers represent and warrant
jointly and severally to each of you that:
(i) The Preliminary Offering Memorandum and the Offering Memorandum
have been prepared in connection with the Exempt Resales. The Offering
Memorandum does not contain and, as amended or supplemented, if applicable,
will not contain, any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph (i) do not apply
to statements in, or omissions from, the Offering Memorandum
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based upon information relating to the Purchasers furnished to the Company
in writing by the Purchasers expressly for use therein. The Issuers
acknowledge for all purposes under this Agreement that the statements set
forth in the paragraph appearing at the bottom of the front cover page and
in the table and the third, fourth, fifth, seventh, eighth, tenth and
eleventh paragraphs (to the extent such statements relate to the
Purchasers) appearing under the caption "Plan of Distribution" in the
Preliminary Offering Memorandum and Offering Memorandum constitute the only
written information furnished to the Company by the Purchasers expressly
for use in the Preliminary Offering Memorandum or the Offering Memorandum,
respectively, and that you shall not be deemed to have provided any
information (and therefore are not responsible for any statement or
omission) pertaining to any arrangement or agreement with respect to any
party other than the Purchasers. No stop order preventing the use of the
Preliminary Offering Memorandum or the Offering Memorandum, or any
amendment or supplement thereto, or any order asserting that any of the
transactions contemplated by this Agreement are subject to the registration
requirements of the Act or the applicable laws of any other jurisdiction,
has been issued. The Offering Memorandum, as of its date, contains all the
information specified in, and meeting the requirements of, Rule 144A(d)(4)
under the Act.
(ii) When the Notes are issued and delivered pursuant to this
Agreement, none of the Notes will be of the same class (within the meaning
of Rule 144A under the Act) as securities of any of the Issuers that are
listed on a national securities exchange registered pursuant to the
Exchange Act or that are quoted in a U.S. automated interdealer quotation
system.
(iii) The Company, the Guarantors and each of their subsidiaries (A)
have been duly organized, (B) are validly existing as a corporation or
limited or general partnership in good standing under the laws of its
respective jurisdiction of organization, (C) have all requisite corporate
or partnership power and authority (x) to carry on their business as is
currently being conducted and as described in the Offering Memorandum and
(y) to own, lease and operate its properties, and (D) are duly qualified
and in good standing as a foreign corporation authorized to do business in
each jurisdiction in which the nature of their business or their ownership
or leasing of property requires such qualification, except where the
failure to be so qualified would not, singly or in the aggregate, have a
Material Adverse Effect (as defined below).
(iv) The entities listed on Schedule B hereto are the only
subsidiaries, direct or indirect, of the Company (other than subsidiaries
with immaterial amounts of assets). The Company owns, and as of the Closing
Date, the Company will own, directly or indirectly through other
subsidiaries, the percentages of the outstanding capital stock or other
securities evidencing equity ownership of such subsidiaries indicated
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on Schedule B hereto, and all of such securities have been duly authorized,
validly issued, are fully paid and nonassessable and were not issued in
violation of any preemptive or similar rights; and as of the Closing Date
the Company will own, directly or indirectly, the assets, properties and
interests disclosed in the Offering Memorandum as owned by the Company free
and clear of any security interest, claim, lien, limitation on voting
rights or encumbrance other than as is set forth in the Offering
Memorandum. There are no outstanding subscriptions, rights, warrants,
calls, commitments of sale or options to acquire, or instruments
convertible into or exchangeable for, any such shares of capital stock or
other equity interest of such subsidiaries, except as disclosed in the
Offering Memorandum..
(v) Each of the Issuers, as applicable, has all requisite corporate
power and authority to execute, deliver and perform its obligations under
each Operative Document to which it is a party, and each of the Issuers and
its subsidiaries, as applicable, has all, requisite corporate or
partnership power and authority to execute, deliver and perform its
obligations under each Operative Document to which it is a party and, in
each case, to consummate the transactions contemplated hereby and thereby,
including, without limitation, the corporate power and authority to issue,
sell and deliver the Securities as provided herein and therein.
(vi) This Agreement has been duly and validly authorized, executed and
delivered by each of the Issuers and is a valid and binding agreement of
each of the Issuers.
(vii) The Indenture has been duly and validly authorized by each of
the Issuers. The Indenture meets the requirements for qualification under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and when duly executed and delivered by the parties thereto, will be a
valid and binding obligation of each of the Issuers, enforceable against
each of the Issuers in accordance with its terms, except (i) as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights and remedies
generally and (ii) as to general principles of equity, regardless of
whether enforcement is sought in a proceeding at law or in equity. The
Indenture, when executed and delivered, will conform to the description
thereof in the Offering Memorandum.
(viii) The Notes have been duly and validly authorized for issuance
and sale to you by the Company pursuant to this Agreement and, when issued
and authenticated in accordance with the terms of the Indenture and
delivered against payment therefor in accordance with the terms hereof,
will be valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms and entitled to the benefits of
the Indenture, except (i) as such enforcement may be limited by bankruptcy,
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insolvency, reorganization, moratorium or similar laws affecting creditors'
rights and remedies generally and (ii) as to general principles of equity,
regardless of whether enforcement is sought in a proceeding at law or in
equity. The Notes, when issued, authenticated and delivered, will conform
to the description thereof in the Offering Memorandum.
(ix) The Guarantees have been duly and validly authorized by each of
the Guarantors and upon endorsement on the Notes (or the Exchange Notes, as
the case may be) in accordance with the terms of the Indenture, execution,
authentication and delivery of the Notes against payment therefor in
accordance with the terms hereof, will be valid and binding obligations of
each of the Guarantors, enforceable against each of the Guarantors in
accordance with its terms, except (i) as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights and remedies generally and (ii) as to general
principles of equity, regardless of whether enforcement is sought in a
proceeding at law or in equity. The Guarantees, when executed and
delivered, will conform to the description thereof in the Offering
Memorandum.
(x) The Exchange Notes have been duly and validly authorized for
issuance by the Company, and when issued and authenticated in accordance
with the terms of the Indenture, the Registration Rights Agreement and the
Exchange Offer, will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms and entitled
to the benefits of the Indenture, except (i) as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights and remedies generally and (ii) as to
general principles of equity, regardless of whether enforcement is sought
in a proceeding at law or in equity.
(xi) The Security Agreement and each of the transactions contemplated
thereby has been duly and validly authorized by each of the Issuers and,
when duly executed and delivered by the Issuers, will be a valid and
binding obligation of each of them, enforceable in accordance with its
terms, except (i) as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights and remedies generally and (ii) as to general principles of equity,
regardless of whether enforcement is sought in a proceeding at law or
equity. The Security Agreement conforms to the description thereof in the
Offering Memorandum.
(xii) The Security Agreement, when duly executed and delivered by the
Issuers, will create and constitute a valid and enforceable security
interest in, lien upon or pledge of all of the Collateral, subject to no
other security interest, claim, lien, encumbrance or adverse interest of
any nature and no right or option to acquire the same
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in favor of any other person or entity, except as permitted by the Security
Agreement. Upon the filing of UCC-1 financing statements in appropriate
form in the requisite filing offices, the security interest, lien or pledge
created by the Security Agreement will be a perfected security interest
with respect to that portion of the Collateral in which a security interest
can be perfected by the filing of a financing statement, prior to all other
claims or security interests therein except as permitted by the Security
Agreement. Upon the delivery to the Trustee of certificates representing
the Pledged Securities (as defined in the Security Agreement), together
with stock powers duly executed by the applicable pledgor in blank, the
lien of the Security Agreement on such Pledged Securities shall constitute
a perfected security interest, free of any adverse claim thereto except as
permitted by the Security Agreement.
(xiii) The Registration Rights Agreement has been duly and validly
authorized by each of the Issuers and, when duly executed and delivered by
each of the Issuers, will be the valid and binding obligation of each of
the Issuers, enforceable in accordance with its terms, except (i) as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights and remedies
generally, (ii) as to general principles of equity, regardless of whether
enforcement is sought in a proceeding at law or in equity and (iii) that
the enforceability of the indemnification and contribution provisions
contained therein may be limited by federal and state securities laws and
the policies underlying such laws. The Registration Rights Agreement
conforms to the description thereof in the Offering Memorandum.
(xiv) None of the Company or any of its subsidiaries is in violation
of its respective charter, bylaws or other organizational document or is in
default in the performance of any bond, debenture, note, indenture,
mortgage, deed of trust, license or other agreement or instrument to which
it is a party or by which it is bound or to which any of its properties is
subject, or is in violation of any law, statute, rule, regulation, judgment
or court decree applicable to them or their assets or properties, except
for any such defaults or violations, which singly or in the aggregate,
would not have a Material Adverse Effect (as defined below). There exists
no condition that, with notice, the passage of time or otherwise, would
constitute a default under any such document or instrument, except for any
such defaults or violations, which singly or in the aggregate, would not
have a Material Adverse Effect.
(xv) The execution, delivery and performance by the Issuers of this
Agreement and by each of the Issuers and their subsidiaries, as applicable,
of the other Operative Documents (except as set forth in the Offering
Memorandum) to which they are parties, the issuance and sale of the Notes
and Guarantees as contemplated by this Agreement and the Offering
Memorandum and the consummation of the transactions
12
contemplated hereby and thereby will not violate, conflict with or
constitute a breach of any of the terms or provisions of, or a default
under (or an event that with notice or the lapse of time, or both, would
constitute a default), or require consent under, or result in the
imposition of a lien or encumbrance on any properties of the Company or any
of its subsidiaries or an acceleration of indebtedness pursuant to (i) the
charter or bylaws of the Company or any of its subsidiaries, (ii) any bond,
debenture, note, indenture, mortgage, deed of trust, license or other
agreement or instrument to which the Company or any of its subsidiaries is
a party or by which any of them or their property is or may be bound, (iii)
any statute, rule or regulation applicable to the Company or any of its
subsidiaries, or (iv) any judgment, order or decree of any court or
governmental agency or authority having jurisdiction over the Company or
any of its subsidiaries. Except as required by the Federal Communications
Commission ("FCC") as disclosed in the Offering Memorandum, no consent,
approval, authorization or order of, or filing, registration,
qualification, license or permit of or with, any court or governmental
agency, body or administrative agency is required for the execution,
delivery and performance of this Agreement and the other Operative
Documents (except as set forth in the Offering Memorandum) by the Company
or, as applicable, any of its subsidiaries and the consummation of the
transactions contemplated hereby and thereby, except such as have been
obtained and made (or, in the case of the Registration Rights Agreement,
will be obtained and made) under the Act, the Trust Indenture Act, and
state securities or Blue Sky laws and regulations or such as may be
required by the National Association of Securities Dealers, Inc. (the
"NASD"). No consents or waivers from any other person are required for the
execution, delivery and performance of this Agreement and the other
Operative Documents (except as set forth in the Offering Memorandum) by the
Company or, as applicable, any of its subsidiaries and the consummation of
the transactions contemplated hereby and thereby, other than such consents
and waivers as have been obtained (or, in the case of the Registration
Rights Agreement, will be obtained).
(xvi) There is (i) no action, suit or proceeding before or by any
court, arbitrator or governmental agency, body or official, domestic or
foreign, now pending or, to the best knowledge of the Issuers, threatened
or contemplated to which the Company or any of its subsidiaries is a party
or to which the business or property of the Company or any of its
subsidiaries is subject, (ii) no statute, rule, regulation or order that
has been enacted, adopted or issued by any governmental agency or that has
been proposed by any governmental body, (iii) no injunction, restraining
order or order of any nature by a federal or state court or foreign court
of competent jurisdiction to which the Company or any of its subsidiaries
is subject issued that, in the case of clauses (i), (ii) and (iii) above,
(x) might, singly or in the aggregate, result in a material adverse effect
on the properties, business, results of operations, condition (financial or
13
otherwise), or prospects of the Company and its subsidiaries, taken as a
whole (a "Material Adverse Effect"), (y) would interfere with or adversely
affect the issuance of the Notes and Guarantees or (z) in any manner draw
into question the validity of any Operative Document.
(xvii) To the best knowledge of the Issuers, no action has been taken
and no statute, rule or regulation or order has been enacted, adopted or
issued by any governmental agency that prevents the issuance of the Notes
or Guarantees; to the best knowledge of the Issuers, no injunction,
restraining order or order of any nature by a federal or state court of
competent jurisdiction has been issued that prevents the issuance of the
Notes or Guarantees or suspends the sale of the Notes in any jurisdiction
referred to in Section 4(e) hereof; and to the best knowledge of the
Issuers, no action, suit or proceeding is pending against the Company or
any of its subsidiaries before any court or arbitrator or any governmental
body, agency or official which, if adversely determined, would prohibit the
issuance of the Notes or Guarantees or invalidate any Operative Document;
and every request of the Issuers by any securities authority or agency of
any jurisdiction for additional information has been complied with in all
material respects.
(xviii) To the best of their knowledge, none of the Company, the
Guarantors or any of their subsidiaries has violated any federal, state or
local law relating to discrimination in hiring, promotion or pay of
employees.
(xix) To the best of their knowledge, none of the Company, the
Guarantors or any of their subsidiaries has violated any environmental,
safety or similar law or regulation applicable to it or its business or
property relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), lacks any permit, license or other
approval required of them under applicable Environmental Laws or is
violating any term or condition of such permit, license or approval which
might result in a Material Adverse Effect.
(xx) Each of the Company and its subsidiaries has (i) good and
marketable title to all of the properties and assets described in the
Offering Memorandum as owned by it, free and clear of all liens, charges,
encumbrances and restrictions, except such as are described in the Offering
Memorandum or as would not have a Material Adverse Effect, (ii) peaceful
and undisturbed possession under all leases to which it is party as lessee,
(iii) all licenses, certificates, permits, authorizations, approvals,
franchises and other rights from, and has made all declarations and filings
with, all federal, state and local authorities (including the FCC), all
self-regulatory authorities and all courts and other tribunals necessary to
engage in the business currently conducted by it
14
in the manner described in the Offering Memorandum (each an
"Authorization"), except where failure to hold such Authorizations would
not have a Material Adverse Effect and (iv) no reason to believe that any
governmental body or agency is considering limiting, suspending or revoking
any such Authorization, except as described in the Offering Memorandum. All
such Authorizations are valid and in full force and effect and the Company
and its subsidiaries are in compliance in all respects with the terms and
conditions of all such Authorizations and with the rules and regulations of
the regulatory authorities having jurisdiction with respect thereto, except
as would not have a Material Adverse Effect. All leases to which the
Company or any of its subsidiaries is a party are valid and binding and no
default by the Company or any of its subsidiaries has occurred and is
continuing thereunder, except such as are described in the Offering
Memorandum or as would not have a Material Adverse Effect, and no material
defaults by the landlord are existing under any such lease. None of the
Issuers has any reason to believe that the FCC licenses with respect to the
cellular systems identified in the Offering Memorandum as owned and
operated by the Company (the "Systems") will not be renewed for a full term
when such FCC licenses are due for renewal. To the Issuers' knowledge, none
of such FCC licenses are subject to any conditions outside of the ordinary
course.
(xxi) Except as otherwise disclosed in the Offering Memorandum, each
of the Company, the Guarantors and their subsidiaries owns or possesses all
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names, in each case to the extent
disclosed in the Offering Memorandum as being material to the business of
the Company (collectively, the "Intellectual Property"), presently employed
by it in connection with the businesses now operated by them, and neither
the Company nor any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to
any of the foregoing. The use of such intellectual Property in connection
with the business and operations of the Company and its subsidiaries does
not infringe on the rights of any person.
(xxii) All tax returns required to be filed by the Company, the
Guarantors or any of their subsidiaries, in all jurisdictions, have been so
filed. All taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due or claimed to be due from such
entities or that are due and payable have been paid, other than those being
contested in good faith and for which adequate reserves have been provided
in accordance with generally accepted accounting principles or those
currently payable without penalty or interest. None of the Company or any
of its subsidiaries knows of any material proposed additional tax
assessments against it.
15
(xxiii) Neither the Company, the Guarantors nor any of their
subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(xxiv) There are no holders of securities of the Issuers who, by
reason of the execution by the Issuers of any Operative Document to which
it is a party or the consummation of the transactions contemplated hereby
and thereby, have the right (that has not been waived) to request or demand
that any of the Issuers register securities held by them under the Act or
analogous foreign laws and regulations.
(xxv) The authorized, issued and outstanding capital stock of each of
the Company and its subsidiaries has been duly and validly authorized and
issued, is fully paid and nonassessable and was not issued in violation of
any preemptive or similar rights. The Company and its subsidiaries had, at
March 31, 1998, an authorized and outstanding capitalization as set forth
in the section entitled "Capitalization" in the Offering Memorandum.
(xxvi) Each certificate signed by any officer of the Company or any of
the Guarantors and delivered to the Purchasers or counsel for the
Purchasers shall be deemed to be a representation and warranty by the
Company or the Guarantors, as applicable, to each Purchaser as to the
matters covered thereby.
(xxvii) Each of the Issuers and their subsidiaries maintains a system
of internal accounting controls sufficient to provide reasonable assurance
that: (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect thereto.
(xxviii) Except as would not be unlawful, none of the Company, the
Guarantors or any of their subsidiaries has (i) taken, directly or
indirectly, any action designed to, or that might reasonably be expected
to, cause or result in stabilization or manipulation of the price of any
security of the Company, the Guarantors or any of their respective
subsidiaries to facilitate the sale or resale of the Notes or (ii) since
the date of the Preliminary Offering Memorandum (A) sold, bid for,
purchased or paid any person any compensation for soliciting purchases of
the Notes or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company, the
Guarantors or any of their respective subsidiaries.
16
(xxix) No registration under the Act of the Securities is required for
the sale of the Securities to the Purchasers as contemplated hereby or for
Exempt Resales to the Eligible Purchasers, assuming (i) that the purchasers
who buy the Securities in the Exempt Resales are QIBs or Regulation S
Purchasers and (ii) the accuracy of the Purchasers' representations
regarding the absence of general solicitation in connection with the sale
of Securities to the Purchasers and the Exempt Resales contained herein. No
form of general solicitation or general advertising was used by the Issuers
or any of their representatives (assuming, for purposes of the Purchasers,
the accuracy of the Purchasers representations in Section 5(b) hereof) in
connection with the offer and sale of any of the Securities or in
connection with Exempt Resales, including, but not limited to, articles,
notices or other communications published in any newspaper, magazine, or
similar medium or broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general solicitation or
general advertising. No securities of the same class as the Securities have
been issued and sold by the Issuers within the six-month period immediately
prior to the date hereof.
(xxx) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its date, and each amendment or supplement thereto, as of
its date, contains all the information specified in, and meets the
requirements of, Rule 144A(d)(4) under the Act.
(xxxi) Subsequent to the respective dates as of which information is
given in the Offering Memorandum and up to the Closing Date, except as set
forth in the Offering Memorandum, (A) neither the Company, the Guarantors
nor any of their subsidiaries has (x) incurred any liabilities or
obligations, direct or contingent, which are material to the Company, the
Guarantors and their subsidiaries, taken as a whole, or (y) entered into
any transaction not in the ordinary course of business, (B) there has not
been, singly or in the aggregate, any material adverse change, or any
development which may reasonably be expected to involve a material adverse
change, in the properties, business, results of operations, condition
(financial or otherwise), or prospects of the Company, the Guarantors and
their subsidiaries, taken as a whole (a "Material Adverse Change"), and (C)
there have not been dividends or distributions of any kind declared, paid
or made by the Company, the Guarantors or any of their subsidiaries on any
class of their capital stock.
(xxxii) Neither the Company, nor any Guarantor, nor any agent thereof
acting on the behalf of any of the Issuers (other than the Purchasers, to
the extent applicable) has taken, and none of them will take, any action
that might cause this Agreement or the issuance or sale of the Securities
to violate Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part
221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the
Federal Reserve System.
17
(xxxiii) Each firm of accountants that has certified or shall certify
the financial statements and supporting schedules included or to be
included as part of the Preliminary Offering Memorandum and the Offering
Memorandum are, to the best of the Company's and the Guarantors' knowledge,
independent public accountants with respect to the Issuers and their
subsidiaries as required by the Act for financial statements included in a
registration statement on Form S-1. The consolidated historical statements
fairly present the consolidated financial conditions and results of
operations of the Company and its subsidiaries at the respective dates and
for the respective periods indicated, in accordance with generally accepted
accounting principles consistently applied throughout such periods. The pro
forma financial statements have been prepared on a basis consistent with
such historical statements, except for the pro forma adjustments specified
therein, and give effect to assumptions made on a reasonable basis and
present fairly the historical and proposed transactions contemplated by the
Preliminary Offering Memorandum, the Offering Memorandum, this Agreement
and the other Operative Documents. Other financial and statistical
information and data included in the Offering Memorandum, historical and
pro forma, are accurately presented and prepared on a basis consistent with
such financial statements and the books and records of the Company and its
subsidiaries.
(xxxiv) Immediately prior to and after the Closing Date, the present
fair saleable value of the assets of the Issuers and their subsidiaries,
taken as a whole, will exceed the amount that will be required to be paid
on or in respect of the existing debts and other liabilities (including
contingent liabilities) of each such person as they become absolute and
matured. The assets of the Issuers, immediately after the Issue Date, will
not constitute unreasonably small capital to permit them to carry out their
business as conducted or as proposed to be conducted. None of the Issuers
intend to, nor do any of the Issuers believe that they will, incur debts
beyond their ability to pay such debts as they mature. Upon the issuance of
the Notes, the present fair saleable value of the assets of the Company
will not exceed the amount that will be required to be paid on or in
respect of the existing debts and other liabilities (including contingent
liabilities) of the Company as they become absolute and matured. The assets
of the Company, upon the issuance of the Notes, will not constitute
unreasonably small capital to carry out its business as now conducted,
including the capital needs of the Company, taking into account the
projected capital requirements and the capital availability of the Company.
(xxxv) There are no contracts, agreements or understandings between
the Company, the Guarantors or any of their subsidiaries and any person
that would give rise to a valid claim against the Company, the Guarantors,
any of their subsidiaries or
18
any Purchaser for a brokerage commission, finder's fee or like payment in
connection with the issuance, purchase and sale of the Securities.
(xxxvi) The Issuers and their respective affiliates and all persons
acting on their behalf (other than the Purchasers, as to whom no
representation is made) have complied with and will comply with the
offering restrictions of Regulation S in connection with the offering of
the Securities outside the United States of America.
(xxxvii) The Issuers acknowledge that the Purchasers and, for purposes
of the opinions to be delivered to the Purchasers pursuant to Section 7
hereof, counsel to the Issuers and counsel to the Purchasers will rely upon
the accuracy and truth of the foregoing representations and hereby consents
to such reliance.
(b) Each Purchaser represents and warrants to the Issuers and the other
Purchasers and agrees that:
(i) Such Purchaser is a QIB with such knowledge and experience in
financial and business matters as are necessary in order to evaluate the
merits and risks of an investment in the Securities.
(ii) Such Purchaser (A) is not acquiring the Securities with a view to
any distribution thereof that would violate the Act or the securities laws
of any state of the United States or any other applicable jurisdiction and
(B) will be reoffering and resetting the Securities only to (x) QIBs in
reliance on the exemption from the registration requirements of the Act
provided by Rule 144A and (y) in offshore transactions in reliance upon
Regulation S under the Act.
(iii) No form of general solicitation or general advertising has been
or will be used by such Purchaser or any of its representatives in
connection with the offer and sale of any of the Securities, which would
render unavailable to the Company reliance upon the exemption from the
registration requirements of the Act afforded by Section 4(2) thereof,
including, but not limited to, articles, notices or other communications
published in any newspaper, magazine, or similar medium or broadcast over
television or radio, or any seminar or meeting whose attendees have been
invited by any general solicitation or general advertising.
(iv) Such Purchaser agrees that, in connection with the Exempt
Resales, it will solicit offers to buy the Securities only from, and will
offer to sell the Securities only to, Eligible Purchasers. Such Purchaser
further agrees (A) that it will offer to sell the Securities only to, and
will solicit offers to buy the Securities only from, (1) QIBs who, in
purchasing such Securities, will be deemed to have represented and agreed
that
19
they are purchasing such Securities for their own accounts or accounts with
respect to which they exercise sole investment discretion and that they or
such accounts are QIBs, that they are aware that the sale to them is being
made in reliance on Rule 144A, and that they are acquiring such Securities
for investment and not with a view to, or for offer or sale in connection
with, any distribution (within the meaning of the Act) or fractionalization
thereof or with any intention of reselling the Securities or any part
thereof, subject to any requirement of law that the disposition of their
property or the property of such investor account or accounts be at all
times within their control and subject to their ability to resell such
Securities pursuant to Rule 144, 144A, Regulation S or other exemption from
registration available under the Act and (2) Regulation S Purchasers who in
purchasing the Securities will be deemed to have represented and agreed
that their purchase of Securities pursuant to Regulation S is not part of a
plan or scheme to evade the registration provisions of the Act, (B) that,
in the case of such Eligible Purchasers, such Eligible Purchasers will be
deemed to have acknowledged that the Securities have not been registered
under the Act and may not be sold except as permitted below, (C) that,
unless so registered, in the case of such Eligible Purchasers, such
Eligible Purchasers will be deemed to have agreed that if they should sell,
pledge or otherwise transfer the Securities prior to the second anniversary
of the later of the original issuance of the Securities or the sale thereof
by any affiliate (within the meaning of Rule 144 under the Act or any
successor rule thereto, an "Affiliate") of any of the Issuers (computed in
accordance with paragraph (d) of Rule 144 under the Act) or if they were at
the date of such transfer or during the three months preceding such date of
transfer an Affiliate of any of the Issuers, they would do so in compliance
with any applicable state securities or "Blue Sky" laws and only (v) to the
Company, as applicable, (w) in accordance with Rule 144A (as indicated by
the box checked by the transferor on the form of assignment on the reverse
of the Note), (x) pursuant to any exemption from registration in accordance
with Regulation S under the Act (as indicated by the box checked by the
transferor on the form of assignment on the reverse of the Note), (y) to an
Institutional Accredited Investor which delivers a certificate in the form
of Exhibit B to the Indenture to the Trustee, or (z) any other applicable
exemption under the securities laws and (D) that, in the case of such
Eligible Purchasers, such Eligible Purchasers will be deemed to have
acknowledged that they have received the information, if any, requested by
them pursuant to Rule 144A, have had full opportunity to review such
information and have received all additional information necessary to
verify such information and that they (i) are able to fend for themselves
in the transactions contemplated by the Offering Memorandum, (ii) have such
knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of their prospective investment in the
Securities and (iii) have the ability to bear the economic risks of their
prospective investment and can afford the complete loss of such investment.
20
(v) Such Purchaser also understands that the Issuers and, for purposes
of the opinions to be delivered to you pursuant to Section 7 hereof,
counsel to the Issuers and counsel to the Purchasers will rely upon the
accuracy and truth of the foregoing representations and hereby consents to
such reliance.
(vi) No such Purchaser nor any of its affiliates, nor any person
acting on their behalf, has engaged in any directed selling efforts within
the meaning of Regulation S with respect to the Notes.
(vii) Such Purchasers agree that, at or prior to confirmation of a
sale of Notes by them to any distributor, dealer or person receiving a
selling concession, fee or other remuneration during the 40-day restricted
period referred to in Rule 903(c)(3) under the Act, they will have sent to
such distributor, dealer or person receiving a selling concession, fee or
other remuneration a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and may not
be offered and sold within the United States or to, or for the account
or benefit of, U.S. persons (i) as part of your distribution at any
time or (ii) otherwise until 40 days after the later of the
commencement of the Offering and the Closing Date, except in either
case in accordance with Regulation S (or Rule 144A in transactions
that are exempt from the registration requirements of the Securities
Act) under the Securities Act, and in connection with any subsequent
sale by you of the Notes covered hereby in reliance on Regulation S
during the period referred to above to any distributor, dealer or
person receiving a setting concession, fee or other remuneration, you
must deliver a notice to substantially the foregoing effect. Terms
used above have the meanings assigned to them in Regulation S."
21
6. Indemnification. (a) The Issuers agree, jointly and severally, to
indemnify and hold harmless (i) each of the Purchasers and (ii) each person, if
any, who controls (within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act) any of the Purchasers (any of the persons referred to in this
clause (ii) being hereinafter referred to as a "controlling person"), and (iii)
the respective officers, directors, partners, employees, representatives and
agents of any of the Purchasers or any controlling person (any person referred
to in clause (i), (ii) or (iii) may hereinafter be referred to as an
"Indemnified Person"), from and against any and all losses, claims, damages,
liabilities and judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Offering Memorandum or
the Offering Memorandum (as amended or supplemented if the Issuers shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or judgments are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Purchaser furnished in writing to the Company by or
on behalf of any Purchaser expressly for use therein; provided that the
foregoing indemnity with respect to any Preliminary Offering Memorandum shall
not inure to the benefit of any Indemnified Person from whom the person
asserting such losses, claims, damages, liabilities and judgments purchased
securities if such untrue statement or omission or alleged untrue statement or
omission made in such Preliminary Offering Memorandum is eliminated or remedied
in the Offering Memorandum and a copy of the Offering Memorandum shall not have
been furnished to such person in a timely manner due to the wrongful action or
wrongful inaction of any Purchaser.
(b) In case any action shall be brought against any Indemnified Person,
based upon the Preliminary Offering Memorandum or the Offering Memorandum or any
amendment or supplement thereto and with respect to which indemnity may be
sought against any of the Issuers, such Indemnified Person shall promptly notify
the Company in writing and the Issuers shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Indemnified
Person and payment of all fees and expenses. Any Indemnified Person shall have
the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Person, unless (i) the employment of such counsel
shall have been specifically authorized in writing by any of the Issuers, (ii)
the Issuers shall have failed to assume the defense and employ counsel or (iii)
the named parties to any such action (including any impleaded parties) include
both such Indemnified Person and any of the Issuers and such Indemnified Person
shall have been advised by counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to the
Issuers (in which case the Issuers shall not have the right to assume the
defense of such action on behalf of such Indemnified Person, it being
understood, however, that the Issuers shall not, in connection
22
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) for all such
Indemnified Persons, which firm shall be designated in writing by NatWest
Capital Markets Limited, and that all such fees and expenses shall be reimbursed
as they are incurred. The Issuers shall not be liable for any settlement of any
such action effected without their written consent but if settled with the
written consent of the Issuers, the Issuers agree to indemnify and hold harmless
any Indemnified Person from and against any loss or liability by reason of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, 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.
(c) Each Purchaser agrees, severally and not jointly, to indemnify and hold
harmless each of the Issuers, their directors, their officers and any person
controlling any of the Issuers within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Issuers to each Indemnified Person but only with reference to
information relating to such Indemnified Person furnished in writing by or on
behalf of such Indemnified Person expressly for use in the Preliminary Offering
Memorandum or Offering Memorandum. In case any action shall be brought against
any of the Issuers, any of their directors, any such officer or any person
controlling any of the Issuers based on the Preliminary Offering Memorandum or
Offering Memorandum and in respect of which indemnity may be sought against any
of the Purchasers, such Purchaser shall have the rights and duties given to the
Company (except that if the Issuers shall have assumed the defense thereof, such
Purchaser shall not be required to do so, but may employ separate counsel
therein and participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Purchaser), and the Issuers, their
directors, any such officer and any person controlling any of the Issuers shall
have the rights and duties given to the Purchasers by Section 6(b) hereof.
(d) If the indemnification provided for in this Section 6 is unavailable to
an indemnified party in respect of any losses, claims, damages, liabilities or
judgments referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities and judgments (i) in such proportion as is appropriate to reflect
the relative benefits received by the Issuers on the one hand and each Purchaser
on the other hand from the offering of the Notes or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
23
benefits referred to in clause (i) above but also the relative fault of the
Issuers and each Purchaser in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or judgments, as well as
any other relevant equitable considerations. The relative benefits received by
the Issuers on the one hand and each Purchaser on the other shall be deemed to
be in the same proportion as the total net proceeds from the Offering (before
deducting expenses) received by the Issuers, and the total discounts received by
each Purchaser, bear to the total price to investors of the Notes, in each case
as set forth in the table on the cover page of the Offering Memorandum. The
relative fault of the Issuers on the one hand and each Purchaser on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a material
fact relates to information supplied by the Issuers or such Purchaser and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Issuers and the Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) were determined by pro
rata allocation (even if the Purchasers were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Purchaser shall be required
to contribute any amount in excess of the amount by which the total discounts
received by it in connection with the sale of the Notes pursuant to this
Agreement exceeds the amount of any damages which such Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Purchasers' obligations to contribute pursuant to this
Section 6(d) are several in proportion to the respective amount of Notes
purchased by each of the Purchasers hereunder and not joint.
7. Conditions of the Purchasers' Obligations. The several obligations of
the Purchasers under this Agreement are subject to the satisfaction of each of
the following conditions:
(a) All of the representations and warranties of the Issuers contained
in this Agreement shall be true and correct on the date hereof and on the
Closing Date with the same force and effect as if made on and as of the
date hereof and the Closing Date, respectively. The Issuers shall have
performed or complied with all of the agreements
24
herein contained and required to be performed or complied with by it at or
prior to the Closing Date.
(b) The Offering Memorandum shall have been printed and copies
distributed to the Purchasers not later than the date immediately following
the date of this Agreement or at such later date and time as you may
approve in writing, and, at the Closing Date, no stop order suspending the
qualification or exemption from qualification of any of the Notes in any
jurisdiction referred to in Section 4(e) shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
or threatened.
(c) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency which would, as of the Closing Date, prevent the issuance or sale of
any of the Notes; no action, suit or proceeding shall be pending against
or, to the knowledge of the Issuers, threatened against, the Company, the
Guarantors or any of their subsidiaries before any court or arbitrator or
any governmental body, agency or official in which there is a reasonable
possibility of an adverse decision that would prohibit, interfere with or
adversely affect the issuance or sale of the Notes or would have a Material
Adverse Effect, in any manner draw into question the validity of any
Operative Document; and no stop order, injunction, restraining order, or
order of any nature preventing the use of the Offering Memorandum, or any
amendment or supplement thereto, or any order asserting that any of the
transactions contemplated by this Agreement are subject to the registration
requirements of the Act shall have been issued.
(d) Since the dates as of which information is given in the Offering
Memorandum, (i) there shall not have been any material change, or any
development that is reasonably likely to result in a material change, in
the capital stock or the long-term debt, or material increase in the
short-term debt, of the Issuers or their subsidiaries, taken as a whole,
from that set forth in the Offering Memorandum, (ii) no dividend or
distribution of any kind shall have been declared, paid or made by any of
the Issuers on any class of its capital stock, and (iii) neither the
Issuers nor any of their subsidiaries shall have incurred any liabilities
or obligations, direct or contingent, that are material, individually or in
the aggregate, to the Issuers and their subsidiaries, taken as a whole, and
that are required to be disclosed on a balance sheet in accordance with
generally accepted accounting principles and are not disclosed on the
latest balance sheet included in the Offering Memorandum. Since the date
hereof and since the dates as of which information is given in the Offering
Memorandum, there shall not have been any Material Adverse Change.
25
(e) You shall have received certificates, dated the Closing Date,
signed by (i) the President or any Vice President of the Company and each
Guarantor and (ii) a principal financial or accounting officer of the
Company and each Guarantor confirming, as of the Closing Date, the matters
set forth in paragraphs (a), (b), (c), (d), (n), (o) and (p), and the first
and third sentences of paragraph (q) of this Section 7.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and your counsel), dated the Closing Date, of Davis
Polk & Wardwell, outside counsel to the Issuers, to the effect that:
(i) The Company has duly and validly authorized, executed and
delivered this Agreement.
(ii) The Company has duly and validly authorized, executed and
delivered the Indenture, and (assuming the due authorization,
execution and delivery thereof by the Trustee) the Indenture is the
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except (i) as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or similar laws affecting creditors' rights and
remedies generally, (ii) as to general principles of equity,
regardless of whether enforcement is sought in a proceeding at law or
in equity, and (iii) to the extent that a waiver of rights under any
usury law may be unenforceable. In rendering such opinion, such
counsel may state that it expresses no opinion as to the applicability
(and, if applicable, the effect) of Section 548 of the United States
Bankruptcy Code or any comparable provision of state law to the
questions addressed therein or on the conclusions with respect
thereto.
(iii) The Notes have been duly and validly authorized for
issuance and sale to you by the Company pursuant to this Agreement
and, when issued and authenticated in accordance with the terms of the
Indenture and delivered against payment therefor in accordance with
the terms hereof, will be the valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms and entitled to the benefits of the Indenture, except (i) as
such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar laws
affecting creditors' rights and remedies generally, (ii) as to general
principles of equity, regardless of whether enforcement is sought in a
proceeding at law or in equity, and (iii) to the extent that a waiver
of rights under any usury laws may be unenforceable.
26
(iv) The Exchange Notes have been duty and validly authorized for
issuance by the Company and, when issued and authenticated in
accordance with the terms of the Indenture, the Registration Rights
Agreement and the Exchange Offer, will be valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms and entitled to the benefits of the
Indenture, except (i) as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or similar laws affecting creditors' rights and remedies
generally, (ii) as to general principles of equity, regardless of
whether enforcement is sought in a proceeding at law or in equity, and
(iii) to the extent that a waiver of rights under any usury laws may
be unenforceable.
(v) The Registration Rights Agreement has been duly and validly
authorized by the Company and, when duly executed and delivered by the
Company, will be the valid and binding obligation of the Company,
enforceable in accordance with its terms, except (i) as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or similar laws affecting creditors'
rights and remedies generally, (ii) as to general principles of
equity, regardless of whether enforcement is sought in a proceeding at
law or in equity and (iii) that the enforceability of the
indemnification and contribution provisions contained therein may be
limited by federal and state securities laws and the policies
underlying such laws.
(vi) The Security Agreement has been duly and validly authorized,
executed and delivered by the Company, and (assuming the due
authorization, execution and delivery by the Guarantors) is a valid
and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except (i) as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or similar laws affecting creditors' rights and
remedies generally and (ii) as to general principles of equity,
regardless of whether enforcement is sought in a proceeding at law or
in equity. In rendering such opinion, such counsel may state that it
expresses no opinion as to the applicability (and, if applicable, the
effect) of Section 548 of the United States Bankruptcy Code or any
comparable provision of state law to the questions addressed therein
or on the conclusions with respect thereto.
(vii) Each of this Agreement, the Registration Rights Agreement
the Notes, the Guarantees, the Security Agreement and the Indenture
conforms as to legal matters in all material respects to the
description thereof in the Offering Memorandum.
27
(viii) When the Notes are issued and delivered pursuant to this
Agreement, none of the Notes will be of the same class (within the
meaning of Rule 144A under the Act) as securities of the Company that
are listed on a national securities exchange registered pursuant to
the Exchange Act or that are quoted in a United States automated
inter-dealer quotation system.
(ix) Registration of the Securities under the Act or
qualification of the Indenture under the Trust Indenture Act is not
required in connection with the offer, sale and delivery of the
Securities to the Purchasers or the initial placement of the
Securities by the Purchasers in the manner contemplated by the
Offering Memorandum to QIBs and Regulation S Purchasers, it being
understood that in rendering this opinion such counsel may assume the
accuracy of the representations of the Purchasers and the Issuers
contained herein and that the offer, sale and delivery of the
Securities have been made as contemplated by this Agreement and the
Offering Memorandum and such counsel may state that no opinion is
given with respect to any other offer or resale of the Securities.
(x) The execution, delivery and performance by the Issuers of
this Agreement, the Indenture, the Guarantees, the Security Agreement
and the Registration Rights Agreement and the issuance and sale of the
Securities as contemplated by the Offering Memorandum and this
Agreement, will not violate, conflict with or constitute a breach of
any of the terms or provisions of, or a default under (or an event
that with notice or the lapse of time, or both, would constitute a
default), or require consent under, or result in the imposition of a
lien or encumbrance on any properties of the Issuers or any of their
respective material subsidiaries, or an acceleration of indebtedness
pursuant to, (i) the charter or bylaws of the Company, except any such
violation, conflict, breach or default that has been waived or consent
that has been obtained, (ii) any bond, debenture, note, indenture,
mortgage, deed of trust, license or other agreement or instrument to
which the Issuers or any of their respective material subsidiaries is
a party or by which any of them or their property is or may be bound,
which is set forth in Schedule II hereto, (iii) to such counsel's
knowledge, any statute, rule or regulation applicable to the Issuers
any of their respective material subsidiaries or any of their assets
or properties, except such as may be required under the Act, the Trust
Indenture Act and state securities or Blue Sky laws and regulations or
by the NASD, or (iv) to such counsel's knowledge, any judgment, order
or decree of any court or governmental agency or authority having
jurisdiction over the Issuers any of their respective material
subsidiaries or their assets or properties. No consent, approval,
authorization or order of, or
28
filing, registration, qualification, license or permit of or with, any
court or governmental agency, body or administrative agency is
required for the execution, delivery and performance of this
Agreement, the Indenture, the Notes, the Guarantees, the Security
Agreement or the Registration Rights Agreement by the Guarantors,
except such as have been obtained (subject to clause (ix), above, and
assuming reliance by such counsel on the accuracy of the
representations referred to therein), such as may be required under
the Act, the Trust Indenture Act and state securities or Blue Sky laws
and regulations or such as may be required by the NASD.
(xi) To the best knowledge of such counsel, no action has been
taken and no statute, rule or regulation or order has been enacted,
adopted or issued by any governmental agency that prevents the
issuance of the Securities; no injunction, restraining order or order
of any nature by a federal or state court of competent jurisdiction
has been issued that prevents the issuance of the Securities; and no
action, suit or proceeding is pending against or affecting or, to the
best knowledge of such counsel, threatened against, the Company and
the Guarantors or any of their respective subsidiaries before any
court or arbitrator or any governmental body, agency or official
which, if adversely determined, would prohibit the issuance of the
Securities.
(xii) The Offering Memorandum, as of its date, and each amendment
or supplement prepared by the Issuers, if any, thereto, as of its date
(except for the financial statements, including the notes thereto, and
supporting schedules and other financial, statistical, and accounting
data included therein or omitted therefrom, as to which no opinion
need be expressed), comply as to form in all material respects with
the requirements of Rule 144A(d)(4) under the Act.
(xiii) The Security Agreement creates in favor of the Collateral
Agent (as defined in the Security Agreement) for the benefit of the
Secured Parties (as defined in the Security Agreement) a valid
security interest in each Issuer's right, title and interest, if any,
in the Collateral (as defined in the Security Agreement) in each case
to the extent that the Uniform Commercial Code of the State of New
York (the "New York UCC") is applicable thereto and governs the
creation of security interest therein.
(xiv) Assuming that the Pledged Securities (as defined in the
Security Agreement), endorsed in blank or accompanied by an instrument
of transfer or assignment in blank, are delivered to the Collateral
Agent, and are continuously held by the Collateral Agent thereafter,
in each case in the State of New York, and the good faith of, and the
absence of notice of any adverse claim thereto on
29
the part of, the Collateral Agent and each of the other Secured
Parties, such delivery, together with the Security Agreement, are
effective to create, in favor of the Collateral Agent for the benefit
of the Secured Parties, a valid and perfected security interest in all
right, title and interest of the Issuers in the Pledged Securities
securing the Secured Obligations, which security interest will have
priority over all other security interests created under the New York
UCC in the Pledged Securities.
In rendering the foregoing opinions, Davis Polk & Wardwell may state that
they are not expressing any opinions as to (i) any laws relating specifically to
the communications industry; (ii) the right, title or interest of any Person to
any Collateral or the value given therefor; (iii) except as expressly set forth
in paragraph (xiii) or (xiv) above, the creation, perfection or priority of any
security interest or lien; (iv) the effect of Section 552 of Title 11 of the
United States Code (the "Bankruptcy Code") on the creation or perfection of
security interests in collateral acquired by any person subsequent to the
commencement of a case by or against such person under the Bankruptcy Code; and
(v) transactions excluded from the UCC by Section 9-104 thereof.
In addition, such counsel may note (i) the possible unenforceability of
certain waivers and remedial provisions contained in the Security Agreement;
however, none of such provisions renders the Security Agreement invalid and the
Security Agreement contains, in such counsel's judgment, adequate remedial
provisions for the practical realization of the rights and benefits afforded
thereby; and (ii) that the security interest of the Holders in proceeds is
limited to the extent set forth in Section 9-306 of the New York UCC and to
property of a type subject to the New York UCC.
In addition, Davis Polk & Wardwell shall state that it has generally
reviewed and discussed with certain officers and other representatives of the
Issuers, representatives of the independent public accountants for the Issuers,
your representatives and your counsel in connection with the preparation of the
Preliminary Offering Memorandum and the Offering Memorandum and the statements
contained therein and, although such counsel has not independently verified the
accuracy, completeness or fairness of such statements (except as indicated
above), such counsel advises you that, on the basis of the foregoing, no facts
came to its attention that caused it to believe that the Offering Memorandum (as
amended or supplemented, if applicable) as of its date or at the Closing Date,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements, in light of
the circumstances under which they were made, not misleading. Without limiting
the foregoing, such counsel may further state that they assume no responsibility
for, and have not independently verified, the accuracy, completeness or fairness
of the
30
financial statements, notes and schedules and other financial data included in
the Preliminary Offering Memorandum or the Offering Memorandum.
The opinions of such counsel described in this subsection shall be rendered
to you at the request of the Company and shall so state therein.
(g) You shall have received on the Closing Date an opinion
(satisfactory to you and your counsel), dated the Closing Date, of K.
Patrick Meehan, general counsel to the Issuers, to the effect that:
(i) Each of the Guarantors has duly and validly authorized,
executed and delivered this Agreement.
(ii) The Guarantors have duly and validly authorized, executed
and delivered the Indenture, and (assuming the due authorization,
execution and delivery thereof by the Trustee) the Indenture is the
valid and binding obligation of each of the Guarantors, enforceable
against each of the Guarantors in accordance with its terms, except
(i) as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar laws
affecting creditors' rights and remedies generally, (ii) as to general
principles of equity, regardless of whether enforcement is sought in a
proceeding at law or in equity, and (iii) to the extent that a waiver
of rights under any usury law may be unenforceable. In rendering such
opinion, such counsel may state that it expresses no opinion as to the
applicability (and, if applicable, the effect) of Section 548 of the
United States Bankruptcy Code or any comparable provision of state law
to the questions addressed therein or on the conclusions with respect
thereto.
(iii) The Registration Rights Agreement has been duly and validly
authorized by each of the Guarantors and, when duly executed and
delivered by each of the Guarantors, will be the valid and binding
obligation of the Guarantors, enforceable in accordance with its
terms, except (i) as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or
similar laws affecting creditors' rights and remedies generally, (ii)
as to general principles of equity, regardless of whether enforcement
is sought in a proceeding at law or in equity and (iii) that the
enforceability of the indemnification and contribution provisions
contained therein may be limited by federal and state securities laws
and the policies underlying such laws.
31
(iv) The Security Agreement has been duly and validly authorized,
executed and delivered by each of the Guarantors, and is a valid and
binding obligation of each of the Guarantors, enforceable against each
of the Guarantors in accordance with its terms, except (i) as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or similar laws affecting creditors'
rights and remedies generally and (ii) as to general principles of
equity, regardless of whether enforcement is sought in a proceeding at
law or in equity. In rendering such opinion, such counsel may state
that it expresses no opinion as to the applicability (and, if
applicable, the effect) of Section 548 of the United States Bankruptcy
Code or any comparable provision of state law to the questions
addressed therein or on the conclusions with respect thereto.
(v) The Guarantees have been duly and validly authorized for
issuance by the Guarantors and, when issued in accordance with the
terms of the Indenture and the Guarantees, will be the valid and
binding obligation of the Guarantors, enforceable against each of the
Guarantors in accordance with its terms, except (i) as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer, fraudulent conveyance or similar laws
affecting creditors' rights and remedies generally, (ii) as to general
principles of equity, regardless of whether enforcement is sought in a
proceeding at law or in equity, and (iii) to the extent that a waiver
of rights under any usury laws may be unenforceable. In rendering such
opinion, such counsel may state that it expresses no opinion as to the
applicability (and, if applicable, the effect) of Section 548 of the
United States Bankruptcy Code or any comparable provision of state law
to the questions addressed therein or on the conclusions with respect
thereto.
(vi) The execution, delivery and performance by each of the
Guarantors of this Agreement, the Indenture, the Guarantees, the
Security Agreement and the Registration Rights Agreement and the
issuance and sale of the Securities as contemplated by the Offering
Memorandum and this Agreement, will not violate, conflict with or
constitute a breach of any of the terms or provisions of, or a default
under (or an event that with notice or the lapse of time, or both,
would constitute a default), or require consent under, or result in
the imposition of a lien or encumbrance on any properties of the
Guarantors or any of their respective material subsidiaries, or an
acceleration of indebtedness pursuant to, the charter or bylaws of the
Guarantors, or any of their respective material subsidiaries, except
any such violation, conflict, breach or default that has been waived
or consent that has been obtained.
32
The opinions of such counsel described in this subsection shall be rendered
to you at the request of the Company and shall so state therein.
(h) You shall have received on the Closing Date an opinion
(satisfactory to you and your counsel), dated the Closing Date of Davis
Wright Tremaine LLP, counsel for the Company with respect to FCC and
related matters to the effect that:
(i) Those statements in the offering Memorandum that describe
provisions of the Communications Act of 1934, as amended (the
"Communications Act"), and the rules, regulations and published
orders, policies and decisions of the FCC ("FCC Rules") are accurate
descriptions in all material respects.
(ii) The execution, delivery and performance of the obligations
by the Company under the Operative Documents are not and will not be
contrary to the Communications Act, or to the terms of any System
license, will not result in any violation of the FCC Rules, will not
cause any forfeiture or impairment of any FCC license of any of the
Systems, and will not require any consent, approval or authorization
of the FCC.
(iii) To such counsel's knowledge, after such counsel's inquiry,
the Company and each of its subsidiaries validly holds all FCC
licenses necessary for the operation of the Systems (and any
associated microwave links) in the manner in which they are described
as being conducted in the Offering Memorandum (for purposes of this
opinion only, the "FCC Licenses"). The FCC Licenses are in full force
and effect, and are not subject to any conditions outside the ordinary
course (except as set forth in an exhibit to such opinion).
(iv) Except as may be disclosed in an exhibit to such opinion,
all applicable administrative and judicial appeal, review and
reconsideration periods relating to the grant of the FCC Licenses have
expired without our being served with any timely filing of any such
appeal, review, request or reconsideration petition, and without the
FCC having instituted review or reconsideration of the grant of any of
the FCC Licenses on its own motion.
(v) To such counsel's knowledge, after such counsel's inquiry,
each of the Company and its subsidiaries has filed with the FCC all
necessary and material reports, documents, instruments, information
and applications required to be filed pursuant to the FCC's rules,
regulations and requests, other than those the failure of which to so
file could reasonably be expected to, singly or in the aggregate, have
a Material Adverse Effect. To such counsel's knowledge,
33
after such counsel's inquiry, no notice has been issued by the FCC
which could permit, or after notice or lapse of time or both could
permit, revocation or termination of any of the FCC Licenses prior to
the expiration dates thereof or which could result in any other
material impairment of any of Palmer's and each of its subsidiaries'
rights thereunder.
(vi) To such counsel's knowledge, after such counsel's inquiry
but without field investigation, each of the Systems is operating in
compliance in all material respects with the Communications Act and
the FCC Rules. To such counsel's knowledge, after such counsel's
inquiry, there is not issued, outstanding or pending any notice of
violation, notice of apparent liability, order to show cause, material
complaint or investigation by or before the FCC which could reasonably
be expected to, singly or in the aggregate, have a Material Adverse
Effect, nor does such counsel have reason to believe, subject to the
Company's and its subsidiaries' continued regulatory compliance, that
the FCC Licenses will not be renewed for a full term when they are due
for renewal.
The opinions of such counsel described in this subsection shall be rendered
to you at the request of the Company and shall so state therein.
(i) You shall have received on the Closing Date an opinion of each of
Parker, Hudson, Rainer & Dobbs LLP; Wainwright & Pope, P.C.; Holland &
Knight; Nelson Mullins Riley & Scarborough, L.L.P., in each case
substantially in the respective forms attached hereto as Exhibit A.
(j) You shall have received an opinion, dated the Closing Date, of
Cahill Gordon & Reindel, your counsel, in form and substance reasonably
satisfactory to you, covering such matters as are customarily covered in
such opinions. In rendering the foregoing opinion, Cahill Gordon & Reindel
may state that they are not expressing any opinions as to any laws relating
specifically to the communications industry.
(k) At the time this Agreement is executed and delivered by the
Issuers and on the Closing Date, you shall have received letters,
substantially in the form previously approved by you, from Arthur Andersen
LLP and KPMG Peat Marwick LLP with respect to the financial statements and
certain financial information contained in the Offering Memorandum.
(l) Cahill shall have been furnished with such documents and opinions,
in addition to those set forth above, as they may reasonably require for
the purpose of enabling them to review or pass upon the matters referred to
in this Section 7 and in
34
order to evidence the accuracy, completeness or satisfaction in all
material respects of any of the representations, warranties or conditions
herein contained.
(m) Prior to the Closing Date, the Issuers shall have furnished to you
such further information, certificates and documents as you may reasonably
request.
(n) The Issuers and the Trustee shall have entered into the Indenture
and you shall have received counterparts, conformed as executed, thereof.
(o) The rights, property and assets disclosed in the Offering
Memorandum as being owned or exercisable, directly or indirectly, by the
Issuers shall be so owned and exercisable by the Issuers on the Closing
Date.
(p) The Issuers shall have entered into the Registration Rights
Agreement and you shall have received counterparts, conformed as executed,
thereof.
(q) The Issuers and the Collateral Agent shall have entered into the
Security Agreement and you shall have received counterparts, conformed as
executed, thereof. The Trustee and the Purchasers shall have received all
financing statements, stock certificates and other documents and
instruments requested by Trustee for the creation, filing, priority and
perfection of the security interests created pursuant to the Security
Agreement. All filing fees and taxes incurred on or prior to the Closing
Date in connection with such filings shall have been paid. The Purchasers
shall have received evidence satisfactory to them of such payments.
All opinions, certificates, letters and other documents required by this
Section 7 to be delivered by the Issuers will be in compliance with the
provisions hereof only if they are reasonably satisfactory in form and substance
to you. The Issuers will furnish the Purchasers with such conformed copies of
such opinions, certificates, letters and other documents as they shall
reasonably request.
8. Defaults. If, on the Closing Date, any of the Purchasers shall fail or
refuse to purchase Notes that it has agreed to purchase hereunder on such date
and the aggregate principal amount of such Notes that such defaulting Purchaser
agreed but failed or refused to purchase does not exceed 10% of the total
principal amount of such Notes that all of the Purchasers are obligated to
purchase on such Closing Date, the non-defaulting Purchasers shall be obligated
to purchase the amount of such Notes that such defaulting Purchaser agreed but
failed or refused to purchase. If, on the Closing Date, any of the Purchasers
shall fail or refuse to purchase Notes in an aggregate principal amount that
exceeds 10% of such total principal amount and arrangements satisfactory to the
other Purchasers and the Company for the purchase of such Notes are not made
within 48 hours after such default, this Agreement shall
35
terminate without liability on the part of the non-defaulting Purchasers or the
Company, except as otherwise provided in Section 9. In any such case that does
not result in termination of this Agreement, the Purchasers or the Company may
postpone the Closing Date for not longer than seven (7) days, in order that the
required changes, if any, in the Offering Memorandum or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve a defaulting Purchaser from liability in respect of any default by any
such Purchaser under this Agreement.
9. Effective Date of Agreement and Termination. This Agreement shall become
effective upon the execution hereof.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by notice to the Company if any of the following has occurred: (i)
subsequent to the date information is provided in the Offering Memorandum, any
Material Adverse Change which, in your judgment, materially impairs the
investment quality of the Notes, (ii) any outbreak or escalation of hostilities
or other national or international calamity or crisis or material adverse change
in the financial markets of the United States or elsewhere, or any other
substantial national or international calamity or emergency if the effect of
such outbreak, escalation, calamity, crisis, material adverse change or
emergency would, in your judgment, make it impracticable or inadvisable to
market the Notes or to enforce contracts for the sale of the Notes, (iii) any
suspension or limitation of trading generally in securities on the New York
Stock Exchange or in the over-the-counter markets or any setting of minimum
prices for trading on such exchange or markets, (iv) any declaration of a
general banking moratorium by either federal or New York authorities, (v) the
taking of any action by any federal, state or local government or agency in
respect of its monetary or fiscal affairs that in your judgment has a material
adverse effect on the financial markets in the United States, and would, in your
judgment, make it impracticable or inadvisable to market the Notes or to enforce
contracts for the sale of any of the Notes, (vi) the enactment, publication,
decree, or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which, in your judgment,
would have a Material Adverse Effect, or (vii) any securities of any Parent, the
Issuers or any of their subsidiaries shall have been downgraded or placed on any
"watch list" for possible downgrading by any nationally recognized statistical
rating organization.
The indemnities and contribution provisions and the other agreements,
representations and warranties of the Issuers, their respective officers and
directors and of the Purchasers set forth in or made pursuant to this Agreement
shall remain operative and in full force and effect, and will survive delivery
of and payment for the Notes, regardless of (i) any investigation, or statement
as to the results thereof, made by or on behalf of any of the Purchasers or by
or on behalf of the Issuers, the officers or directors of any of the Issuers or
any
36
controlling person of any of the Issuers, (ii) acceptance of the Notes and
payment for them hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Purchasers pursuant to clause
(i) or (vii) of the second paragraph of this Section 9 or because of the failure
or refusal on the part of the Issuers to comply with the terms or to fulfill any
of the conditions of this Agreement, the Issuers agree to reimburse you for all
reasonable out-of-pocket expenses (including the fees and disbursements of
counsel) incurred by you. Notwithstanding any termination of this Agreement, the
Issuers shall be liable for all expenses which it has agreed to pay pursuant to
Section 4(f) hereof.
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company, the Guarantors, the
Purchasers, any Indemnified Person referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The terms "successors and assigns" shall not include a purchaser of
any of the Notes from any of the Purchasers merely because of such purchase.
10. Miscellaneous. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, Price
Communications Wireless, Inc., 45 Rockefeller Plaza, Suite 3201, New York, New
York 10020, Attention: President, with a copy to Davis Polk & Wardwell, 450
Lexington Avenue, New York, New York 10017, Attention: Richard D. Truesdell,
Jr., Esq., and (b) if to the Purchasers, c/o Gleacher NatWest International, 660
Madison Avenue, New York, New York 10021, Attention: David W. Mills, with copies
to Donaldson, Lufkin & Jenrette Securities Corporation, 600 California Street,
Suite 1800, San Francisco, California 94108-2704, Attention: Thomas M.
Benninger; Wasserstein Perella Securities, Inc., 31 West 52nd Street, New York,
New York 10019, Attention: Frederic M. Seegal; and Nesbitt Burns Securities
Inc., Attention: High Yield Department, and with a copy to Cahill Gordon &
Reindel, 80 Pine Street, 17th Floor, New York, New York 10005, Attention:
Michael E. Michetti, Esq., or in any case to such other address as the person to
be notified may have requested in writing.
This Agreement shall be governed and construed in accordance with the
internal laws of the State of New York as applied to contracts made and
performed in such state, without regard to principles of conflicts of law. This
Agreement may be signed in various counterparts which together shall constitute
one and the same instrument.
[Signature Pages Follow]
37
Please confirm that the foregoing correctly sets forth the Agreement among
the Company, the Guarantors and the Purchasers.
Very truly yours,
PRICE COMMUNICATIONS WIRELESS, INC.
By:
-------------------------------------
Name:
Title:
ALBANY CELLULAR PARTNERS
By: Palmer Wireless Holdings, Inc., its
managing partner
By:
-------------------------------------
Name:
Title:
COLUMBUS CELLULAR TELEPHONE COMPANY
By: Palmer Wireless Holdings, Inc., its
managing partner
By:
-------------------------------------
Name:
Title:
38
MACON CELLULAR TELEPHONE SYSTEMS
LIMITED PARTNERSHIP
By: CEI Communications, Inc., its
general partner
By:
-------------------------------------
Name:
Title:
SAVANNAH CELLULAR LIMITED
PARTNERSHIP
By: Palmer Wireless Holdings, Inc., its
general partner
By:
-------------------------------------
Name:
Title:
PANAMA CITY CELLULAR TELEPHONE
COMPANY, LTD.
By: Panama City Communications, Inc.,
its general partner
By:
-------------------------------------
Name:
Title:
39
PANHANDLE CELLULAR PARTNERSHIP
By: Palmer Wireless Holdings, Inc., its
managing partner
By:
-------------------------------------
Name:
Title:
PALMER COMMUNICATIONS, INC.
PALMER WIRELESS HOLDINGS, INC.
PRICE COMMUNICATIONS WIRELESS II, INC.
PRICE COMMUNICATIONS WIRELESS III, INC.
PRICE COMMUNICATIONS WIRELESS IV, INC.
PRICE COMMUNICATIONS WIRELESS V, INC.
PRICE COMMUNICATIONS WIRELESS VI, INC.
PRICE COMMUNICATIONS WIRELESS VII, INC.
PRICE COMMUNICATIONS WIRELESS VIII, INC.
PRICE COMMUNICATIONS WIRELESS IX, INC.
CEI COMMUNICATIONS, INC.
CELLULAR DYNAMICS TELEPHONE COMPANY
CELLULAR SYSTEMS OF SOUTHEAST ALABAMA, INC.
DOTHAN CELLULAR TELEPHONE COMPANY, INC.
MONTGOMERY CELLULAR HOLDING CO., INC.
MONTGOMERY CELLULAR TELEPHONE COMPANY, INC.
PANAMA CITY COMMUNICATIONS, INC.
By:
-------------------------------------
Name:
Title:
40
Accepted and agreed to as of the date first
above written:
NATWEST CAPITAL MARKETS
LIMITED, on behalf of and as Representative
of the Purchasers
By:
----------------------------------
Name:
Title:
SCHEDULE A
Guarantors
ALBANY CELLULAR PARTNERS
COLUMBUS CELLULAR TELEPHONE COMPANY
MACON CELLULAR TELEPHONE SYSTEMS LIMITED PARTNERSHIP
SAVANNAH CELLULAR LIMITED
PARTNERSHIP
PANAMA CITY CELLULAR TELEPHONE COMPANY, LTD.
PANHANDLE CELLULAR PARTNERSHIP
PALMER COMMUNICATIONS, INC.
PALMER WIRELESS HOLDINGS, INC.
PRICE COMMUNICATIONS WIRELESS II, INC.
PRICE COMMUNICATIONS WIRELESS III, INC.
PRICE COMMUNICATIONS WIRELESS IV, INC.
PRICE COMMUNICATIONS WIRELESS V, INC.
PRICE COMMUNICATIONS WIRELESS VI, INC.
PRICE COMMUNICATIONS WIRELESS VII, INC.
PRICE COMMUNICATIONS WIRELESS VIII, INC.
PRICE COMMUNICATIONS WIRELESS IX, INC.
CEI COMMUNICATIONS, INC.
CELLULAR DYNAMICS TELEPHONE COMPANY
CELLULAR SYSTEMS OF SOUTHEAST ALABAMA, INC.
DOTHAN CELLULAR TELEPHONE COMPANY, INC.
MONTGOMERY CELLULAR HOLDING CO., INC.
MONTGOMERY CELLULAR TELEPHONE COMPANY, INC.
PANAMA CITY COMMUNICATIONS, INC.
SCHEDULE B
Subsidiaries Equity Ownership
- ------------ ----------------
ALBANY CELLULAR PARTNERS
COLUMBUS CELLULAR TELEPHONE COMPANY
MACON CELLULAR TELEPHONE SYSTEMS LIMITED PARTNERSHIP
SAVANNAH CELLULAR LIMITED
PARTNERSHIP
PANAMA CITY CELLULAR TELEPHONE COMPANY, LTD.
PANHANDLE CELLULAR PARTNERSHIP
PALMER COMMUNICATIONS, INC.
PALMER WIRELESS HOLDINGS, INC.
PRICE COMMUNICATIONS WIRELESS II, INC.
PRICE COMMUNICATIONS WIRELESS III, INC.
PRICE COMMUNICATIONS WIRELESS IV, INC.
PRICE COMMUNICATIONS WIRELESS V, INC.
PRICE COMMUNICATIONS WIRELESS VI, INC.
PRICE COMMUNICATIONS WIRELESS VII, INC.
PRICE COMMUNICATIONS WIRELESS VIII, INC.
PRICE COMMUNICATIONS WIRELESS IX, INC.
CEI COMMUNICATIONS, INC.
CELLULAR DYNAMICS TELEPHONE COMPANY
CELLULAR SYSTEMS OF SOUTHEAST ALABAMA, INC.
DOTHAN CELLULAR TELEPHONE COMPANY, INC.
MONTGOMERY CELLULAR HOLDING CO., INC.
MONTGOMERY CELLULAR TELEPHONE COMPANY, INC.
PANAMA CITY COMMUNICATIONS, INC.
SCHEDULE I
Principal Amount
----------------
NatWest Capital Markets Limited ........................... $262,500,000
Donaldson, Lufkin & Jenrette Securities Corporation ....... 210,000,000
Nesbitt Burns Securities Inc. ............................. 26,250,000
Wasserstein Perella Securities, Inc. ...................... 26,250,000
----------
TOTAL ................. $525,000,000
SCHEDULE II
Any bond, debenture, note, indenture, mortgage, deed of trust, license or
other agreement or instrument to which the Company or any of their material
subsidiaries is a party or by which any of them or their property is or may be
bound, which is effective and which is included or incorporated by reference as
an exhibit to the Company's annual report on Form 10K for the year ended
December 31, 1997, or quarterly report on Form 10Q for the quarter ended March
31, 1998.