<PAGE>
EXHIBIT 1.2
$125,000,000
HORIZON PCS ESCROW COMPANY
HORIZON PCS, INC.
11 3/8% SENIOR NOTES DUE 2012
PURCHASE AGREEMENT
July 8, 2004
CREDIT SUISSE FIRST BOSTON
LLC
LEHMAN BROTHERS
INC.,
c/o Credit Suisse First
Boston LLC,
Eleven Madison
Avenue,
New York, N.Y.
10010-3629
Dear Ladies and
Gentlemen:
1.
Introductory. Horizon PCS Escrow Company, a Delaware
corporation
(the "ESCROW COMPANY"),
proposes, subject to the terms and conditions stated
herein, to issue and sell to
Credit Suisse First Boston LLC ("CSFB") and Lehman
Brothers Inc. (the
"PURCHASERS") U.S.$125,000,000 principal amount of its
11
-3/8% Senior Notes due 2012
(the "OFFERED SECURITIES") to be issued under an
indenture (the "INDENTURE"),
dated as of the Closing Date (as defined herein),
among the Escrow Company, the
Company (as defined below), the Guarantors (as
defined below) and U.S. Bank
National Association, as Trustee (the "TRUSTEE"),
on a private placement basis
pursuant to an exemption under Section 4(2) of the
U.S. Securities Act of 1933,
as amended (the "SECURITIES ACT").
The
Company and its subsidiaries previously filed voluntary petitions
for
relief (Case Nos. 03-62424,
03-62425 and 03-62426) with the United States
Bankruptcy Court for the
Southern District of Ohio (the "BANKRUPTCY COURT"). On
June 27, 2004, the Company
and its subsidiaries filed a plan of reorganization
pursuant to Chapter 11 of the
U.S. Bankruptcy Code. The issuance and sale of the
Offered Securities pursuant
to this Agreement is part of a series of
transactions designed to
reorganize the ownership and capital structure of
Horizon PCS, Inc., a Delaware
corporation (the "COMPANY" and, together with the
Escrow Company, the "NOTE
ISSUERS"). Such transactions are referred to herein as
the "REORGANIZATION." As part
of the consummation of the Reorganization, the
Escrow Company will merge
with and into Horizon PCS Escrow Holding Company, a
Delaware corporation (the
"HOLDING COMPANY"), which will in turn, merge with and
into the Company, with the
Company being the surviving entity (the "MERGERS").
Upon
consummation of the Reorganization and the Mergers, the Company
will
succeed to the obligations of
the Escrow Company hereunder and under the
Indenture and the Offered
Securities and the Company's obligations under the
Registration Rights Agreement
(as defined herein) will become operative. In
addition, upon consummation
of the Mergers, the Offered
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Securities will become fully
and unconditionally guaranteed (the "GUARANTEES")
as to payment of principal
and interest and premium and liquidated damages, if
any, on an unsecured senior
basis, jointly and severally, by all of the
Company's subsidiaries (after
giving effect to the Reorganization) listed on
Schedule A hereto
(collectively, the "GUARANTORS" and, together with the
Note
Issuers, the
"ISSUERS").
At the
Closing Date, the Escrow Company will deposit the net proceeds
from
the offering of the Offered
Securities, and the Company will deposit such
additional amounts equal to
accrued and unpaid interest on the Offered
Securities to but not
including the 120th day after the issuance of the
Offered
Securities (expected to be
November 16, 2004), in an escrow account (the "ESCROW
ACCOUNT") pursuant to an
Escrow Agreement to be dated the Closing Date (the
"ESCROW AGREEMENT") among the
Escrow Company, the Company and U.S. Bank National
Association, as Escrow Agent
(the "ESCROW AGENT"). The funds in the Escrow
Account will be used on or
before November 16, 2004 (the "MERGER DATE") to
consummate the Reorganization
on the terms described in the Escrow Agreement or,
in the event of a Special
Mandatory Redemption (as defined in the Offering
Document), released to
finance the purchase price in connection therewith.
The holders of the Offered
Securities will be entitled to the benefits of
a Registration Rights
Agreement dated as of the Closing Date among the Issuers
and the Purchasers (the
"REGISTRATION RIGHTS AGREEMENT"), pursuant to which the
Company and the Guarantors
agree to file a registration statement with the
Securities Exchange
Commission (the "COMMISSION") registering the resale of
the
Offered Securities under the
Securities Act.
This
Agreement, the Offered Securities, the Guarantees, the Indenture,
the
Registration Rights Agreement
and the Escrow Agreement are hereinafter referred
to collectively as the
Transaction Documents.
The
Issuers hereby agree with the several Purchasers as
follows:
2.
Representations and Warranties of the Issuers. The Issuers,
jointly
and severally, represent and
warrant to, and agree with, the several Purchasers
that:
(a) A
preliminary offering circular and an offering circular
relating
to the Offered Securities to be offered by the Purchasers
have
been
prepared by the Issuers. Such preliminary offering circular
(the
"PRELIMINARY OFFERING CIRCULAR") and offering circular (the
"OFFERING
CIRCULAR"), as supplemented as of the date of this Agreement,
are
hereinafter collectively referred to as the "OFFERING DOCUMENT." On
the
date of
this Agreement, the Offering Document does not include any
untrue
statement
of a material fact or omit to state any material fact or
necessary
in order to make the statements therein, in the light of
the
circumstances under which they were made, not misleading. The
preceding
sentence
does not apply to statements in or omissions from the
Offering
Document
based upon written information furnished to the Issuers by
any
Purchaser
through CSFB specifically for use therein, it being
understood
and agreed
that the only such information is that described as such
in
Section
7(b) hereof.
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(b) The Escrow
Company (i) has been duly incorporated and is an
existing
corporation in good standing under the laws of the State
of
Delaware
and (ii) as of the date hereof does not have, and as of
the
Closing
Date will not have, any operations, subsidiaries, assets
(other
than
nominal amounts representing the sale of equity),
indebtedness,
liabilities or obligations, other than the Offered Securities and
any
obligations pursuant to this Agreement, the Merger Agreements and
the
other
Transaction Documents.
(c) The Company
has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Delaware, with
the
corporate or such similar power and authority to own its
properties
and
conduct its business as described in the Offering Document; and
the
Company is
duly qualified to do business as a foreign corporation in
good
standing
in all other jurisdictions in which its ownership or lease
of
property
or the conduct of its business requires such
qualification,
except
where the failure to be so qualified would not have a
Material
Adverse
Effect (as defined below);.
(d) Each
subsidiary of the Company has been duly incorporated or
organized,
as the case may be, and is an existing corporation or
limited
liability
company in good standing under the laws of the jurisdiction
of
its
incorporation or organization, as the case may be, with the
corporate
or such
other similar power and authority to own its properties
and
conduct
its business as described in the Offering Document; and
each
subsidiary
of the Company is duly qualified to do business as a
foreign
corporation in good standing in all other jurisdictions in which
its
ownership
or lease of property or the conduct of its business
requires
such
qualification, except where the failure to be so qualified would
not
have a
Material Adverse Effect; all of the issued and outstanding
capital
stock, or
capital units, as the case may be, of each subsidiary of
the
Company
has been duly authorized and validly issued and is fully paid
and
nonassessable; and, except as disclosed in the Offering Document,
the
capital
stock, or capital units, as the case may be, of each
subsidiary
owned by
the Company, directly or through subsidiaries, is owned,
and
after
giving effect to the Reorganization, will be owned, free from
liens,
encumbrances and defects.
(e) Upon
consummation of the Reorganization, the Company will
have
no
subsidiaries other than the entities listed on Schedule A
attached
hereto.
(f) Upon
consummation of the Reorganization, except as disclosed
in the
Offering Document, there will not be any outstanding
subscriptions,
rights,
warrants, calls, commitments of sale or options to acquire,
or
instruments convertible into or exchangeable for, any capital stock
or
other
equity interest of Escrow Company, the Company or any of
the
Company's
subsidiaries.
(g) The
Indenture has been duly authorized by each of the
Issuers;
the
Offered Securities have been duly authorized by each of the
Note
Issuers; and when the
Offered Securities are delivered and paid for
pursuant
to this Agreement on the Closing Date and the Indenture will
have
been duly
executed and delivered, such Offered Securities will have
been
duly
executed, authenticated, issued and delivered and will conform in
all
material
respects to the description thereof contained in the
Offering
Document
and on
3
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the
Closing Date, the Indenture and such Offered Securities
will
constitute
the valid and legally binding obligations of each of the
Note
Issuers,
enforceable in accordance with their terms, subject to
(i)
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium
and similar laws of general
applicability relating to or affecting
creditors'
rights, (ii) to general equity principles and (iii)
public
policy
considerations.
(h) On the
Closing Date, the Indenture will conform in all
material
respects to the requirements of the Trust Indenture Act of
1939,
as amended
(the "TIA" or "TRUST INDENTURE ACT"), and the rules and
regulations of the Commission applicable to an indenture which
is
qualified
thereunder.
(i) Except as disclosed in the
Offering Document, there are no
contracts,
agreements or understandings between the Issuers
(including
after
giving effect to the Reorganization) and any person that would
give
rise to a
valid claim against the Issuers or any Purchaser for a
brokerage
commission, finder's fee or other like payment.
(j) Except as
disclosed in the Offering Document and except as may
be
required under the Securities Act, state securities and blue sky
laws
in
connection with the transactions contemplated by the
Registration
Rights
Agreement, no consent, approval, authorization, or order of,
or
filing
with, any governmental agency or body or any court is required
for
(including
after giving effect to the Reorganization) (i) the
consummation
of the
transactions contemplated by the Transaction Documents and (ii)
the
consummation by the Escrow Company or the Company of the
transactions
described
in the Offering Document under the captions "The
Reorganization"
or "Use of
Proceeds."
(k) Except as
disclosed in the Offering Document, none of the
Issuers is
in violation of its respective charter or by-laws (or
other
similar
constituent document) or in default in the performance of
any
obligation, agreement, covenant or condition contained in any
indenture,
loan
agreement, mortgage, lease or other agreement or instrument that
is
material
to the Company and its subsidiaries, taken as a whole, to
which
the
Company or any of its subsidiaries is a party or by which the
Company
or any of
its subsidiaries or their respective property is bound.
(l) The (i)
execution, delivery and performance of each of the
Transaction Documents by each of the Issuers (to the extent a
party
thereto)
and the issuance and sale of the Offered Securities and
compliance
with the terms and provisions thereof and (ii) the
consummation
by the
Escrow Company or the Company of the transactions described in
the
Offering
Document under the captions "The Reorganization" and "Use
of
Proceeds"
will not result in a breach or violation of any of the terms
and
provisions
of, or constitute a default under (including after
giving
effect to
the Reorganization), (x) any statute, any rule, regulation
or
order of
any governmental agency or body or any court, domestic
or
foreign,
having jurisdiction over the Escrow Company, the Company or
any
subsidiary
of the Company or any of their respective properties, or
any
agreement
or instrument to which the Escrow Company, the Company or
any
such
subsidiary is a party or by which the Escrow Company, the Company
or
any such
subsidiary is bound or to which any of the properties of
the
Escrow
Company, the Company or any such subsidiary is subject, (y)
the
Communications Act of 1934, as amended (the
"Communications
4
<PAGE>
Act"), and the rules,
regulations and policies of the Federal
Communications Commission (the "FCC") or (z) the charter or by-laws
(or
other
similar constituent document) of the Escrow Company, the Company
or
any such
subsidiary.
(m) This
Agreement has been duly authorized, executed and
delivered
by each of the Issuers.
(n) The
Registration Rights Agreement has been duly authorized
by
each of
the Issuers and will be executed and delivered by each of
the
Issuers on
the Closing Date. When the Registration Rights Agreement
has
been duly
executed and delivered, the Registration Rights Agreement
will
be a valid
and legally binding agreement of each of the Issuers,
enforceable against each of the Issuers in accordance with its
terms,
subject to
(i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability
relating
to or affecting creditors' rights, (ii) general equity
principles
and (iii)
public policy considerations.
(o) Each of the
Issuers has all requisite corporate or such other
similar
power and authority to execute, deliver and perform its
obligations under this Agreement and each of the other
Transaction
Documents
to which it is, or will become, a party and to consummate
the
transactions contemplated hereby and thereby, including,
without
limitation, the corporate or such other similar power and authority
to
issue,
sell and deliver the Offered Securities (if a Notes Issuer) and
to
issue and
deliver the related Guarantees (if a Guarantor) as
provided
herein and
therein.
(p) The Escrow
Agreement has been duly authorized each of the Note
Issuers
and will be duly executed and delivered by each of the
Note
Issuers on
the Closing Date. When the Escrow Agreement has been
duly
executed
and delivered, the Escrow Agreement will be a valid and
legally
binding
agreement of each of the Note Issuers, enforceable against each
of
the Note
Issuers in accordance with its terms, subject to (i)
bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar
laws of
general applicability relating to or affecting creditors'
rights
and (ii)
general equity principles. The Offering Document contains
a
summary of
the terms of the Escrow Agreement that fairly presents
and
summarizes
in all material respects the terms of the Escrow
Agreement.
(q) The
Guarantees of the Offered Securities have been duly and
validly
authorized for issuance by each of the Guarantors and,
upon
consummation of the Mergers, when executed and delivered in
accordance
with the
terms of the Indenture and when the Offered Securities have
been
issued and
authenticated in accordance with the terms of the
Indenture,
will be
the valid and binding obligations of each of the
Guarantors,
enforceable against each of them in accordance with its terms
subject to
(i)
bankruptcy, insolvency, fraudulent transfer,
reorganization,
moratorium
and similar laws of general applicability relating to or
affecting
creditors' rights, (ii) general equity principles and
(iii)
public
policy considerations.
(r) On the
Closing Date, the Exchange Notes (as defined in the
Registration Rights Agreement) will have been duly and validly
authorized
for
issuance by the
5
<PAGE>
Company
and, when the Exchange Notes are issued, executed and
authenticated in accordance with the terms of the Exchange Offer
and the
Indenture,
the Exchange Notes will be the valid and binding obligations
of
the
Company enforceable in accordance with their terms subject to
(i)
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium
and
similar laws of general applicability relating to or
affecting
creditors'
rights, (ii) general equity principles and (iii) public
policy
considerations.
(s) On the
Closing Date, the Guarantees to be endorsed on the
Exchange
Notes by each Guarantor have been duly authorized by
such
Guarantor;
and, when issued, will have been duly executed and delivered
by
each such
Guarantor and will conform to the description thereof in
the
Offering
Document. When the Exchange Notes have been issued, executed
and
authenticated in accordance with the terms of the Exchange Offer
and the
Indenture,
the Guarantee of each Guarantor endorsed thereon will
constitute
valid and legally binding obligations of such Guarantor,
enforceable in accordance with its terms subject to (i)
bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar
laws of
general applicability relating to or affecting creditors'
rights,
(ii)
general equity principles and (iii) public policy
considerations.
(t) The
Agreement of Merger of the Escrow Company with and into
Holding
Company and the Agreement of Merger of Holding Company with
and
into the
Company (collectively, the "MERGER AGREEMENTS") as of the
Closing
Date will
be duly and validly authorized, executed and delivered by
each
of the
parties thereto and will be, as of the Closing Date, a valid
and
binding
agreement of each of the parties thereto, enforceable against
each
of them in
accordance with its terms subject to (i) bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar
laws of
general applicability relating to or affecting creditors'
rights,
(ii)
general equity principles and (iii) public policy
considerations.
(u) Except as
disclosed in the Offering Document, the Company and
its
subsidiaries have, and after giving effect to the Reorganization
will
have, good
and marketable title to all real properties and all
other
properties
and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value
thereof or
materially
interfere with the use made or to be made thereof by them;
and
except as
disclosed in the Offering Document, the Company and its
subsidiaries hold, and after giving effect to the Reorganization
will
hold, any
leased real or personal property under valid and
enforceable
leases
with only such exceptions as would not materially interfere
with
the use
made or to be made thereof by them.
(v) The Company
and its subsidiaries possess, and after giving
effect to
the Reorganization will possess, adequate certificates,
authorities or permits issued by appropriate governmental agencies
or
bodies
necessary to conduct the business now and then operated by them
and
have not
received any notice of proceedings relating to the revocation
or
modification of any such certificate, authority or permit that,
if
determined
adversely to the Company or any of its subsidiaries,
would
individually or in the aggregate have a material adverse effect on
the
condition
(financial or other), business,
6
<PAGE>
properties
or results of operations of the Company and its
subsidiaries
taken as a
whole ("MATERIAL ADVERSE EFFECT").
(w) No labor
dispute with the employees of the Company or any
subsidiary
exists or, to the knowledge of the Company, is imminent
that
would
individually or in the aggregate have a Material Adverse
Effect.
(x) The Company
and its subsidiaries own, possess or can acquire
on
reasonable terms, and after giving effect to the Reorganization
will
own,
possess or be able to acquire or use on reasonable terms,
adequate
trademarks, trade names and other rights to inventions, know-how,
patents,
copyrights, confidential information and other intellectual
property
(collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to conduct
the
business
now and then operated by them, or presently employed by them,
and
have not
received any notice of infringement of or conflict with
asserted
rights of
others with respect to any intellectual property rights that,
if
determined
adversely to the Company or any of its subsidiaries,
would
individually or in the aggregate have a Material Adverse
Effect.
(y) Except as
disclosed in the Offering Document, neither the
Company
nor any of its subsidiaries is in violation of any statute,
any
rule,
regulation, decision or order of any governmental agency or body
or
any court,
domestic or foreign, relating to the use, disposal or
release
of
hazardous or toxic substances or relating to the protection
or
restoration of the environment or human exposure to hazardous or
toxic
substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any
real
property
contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination
pursuant
to any environmental laws, or is subject to any claim relating
to
any
environmental laws, which violation, contamination, liability or
claim
would
individually or in the aggregate have a Material Adverse Effect;
and
the
Company is not aware of any pending investigation which might lead
to
such a
claim.
(z) Except as
disclosed in the Offering Document, there are no
pending
actions, suits or proceedings against or affecting the
Escrow
Company,
the Company, any of its subsidiaries or any of their
respective
properties
that (i), if determined adversely to the Escrow Company,
the
Company or
any of its subsidiaries, would individually or in the
aggregate
have a
Material Adverse Effect, (ii) challenge in any respect or seeks
to
delay or
prevent the issuance and sale of the Offered Securities,
the
Reorganization or the Mergers, or (iii) would materially and
adversely
affect the
ability of the Escrow Company or the Company to perform each
of
their
respective obligations under the Transaction Documents, or which
are
otherwise
material in the context of the sale of the Offered
Securities;
and no
such actions, suits or proceedings are threatened or, to the
Escrow
Company or
the Company's knowledge, contemplated.
(aa) (i) KPMG LLP
("KPMG"), who have audited the financial
statements
of the Company and its consolidated subsidiaries as of and
for
the years
ended December 31, 2002 and 2003 included in the
Offering
Document,
are and (ii) Arthur Andersen LLP ("ANDERSEN"), who have
audited
the
financial statements of the Company and its consolidated
subsidiaries
as of and
for the year ended December 31, 2001 included in the
7
<PAGE>
Offering
Document were, as of June 26, 2002, independent auditors
with
respect to
the Company and its consolidated subsidiaries in each
case
within the
meaning of Rule 101 of the Code of Professional Conduct of
the
American
Institute of Certified Public Accountants and its
interpretations
and
rulings thereunder and, at all times relevant to the preparation
of
the
historical financial statements, KPMG and Andersen were
such
independent certified public accountants. The financial
statements
included
in the Offering Document present fairly the financial position
of
the
Company and its consolidated subsidiaries as of the dates shown
and
their
results of operations and cash flows for the periods shown,
and,
except as
otherwise disclosed in the Offering Document, such
financial
statements
have been prepared in conformity with the generally
accepted
accounting
principles in the United States applied on a consistent
basis;
the
assumptions used in preparing the pro forma financial
statements
included
in the Offering Document provide a reasonable basis for
presenting
the significant effects directly attributable to the
transactions or events described therein; the related pro
forma
adjustments give appropriate effect to those assumptions, and the
pro
forma
columns therein reflect the proper application of those
adjustments
to the
corresponding historical financial statement amounts.
(bb) Except as
disclosed in the Offering Document, since the date
of the
latest audited financial statements included in the
Offering
Document
there has been no material adverse change, nor any development
or
event
involving a prospective material adverse change, in the
condition
(financial
or other), business, properties or results of operations of
the
Company
and its subsidiaries taken as a whole, and, except as disclosed
in
or
contemplated by the Offering Document, there has been no dividend
or
distribution of any kind declared, paid or made by the Company on
any
class of
its capital stock.
(cc) None of the
Issuers is, or after giving effect to the issuance
and sale
of the Offered Securities and the Reorganization and applying
the
net
proceeds as described in the Offering Document under the caption
"Use
of
Proceeds" will at that time be, an open-end investment company,
unit
investment
trust or face-amount certificate company that is or is
required
to be
registered under Section 8 of the United States Investment
Company
Act of
1940 (the "INVESTMENT COMPANY ACT"); and none of the Issuers is,
or
after
giving effect to the issuance and sale of the Offered Securities
and
the
Reorganization and applying the net proceeds as described in
the
Offering
Document under the caption "Use of Proceeds" will at that
time
be, an
"investment company" as defined in the Investment Company
Act.
(dd) No securities of
the same class (within the meaning of Rule
144A(d)(3)
under the Securities Act) as the Offered Securities are
listed
on any
national securities exchange registered under Section 6 of
the
United
States Securities Exchange Act of 1934 ("EXCHANGE ACT") or
quoted
in a U.S.
automated inter-dealer quotation system.
(ee) No registration
under the Securities Act of the Offered
Securities
or the Guarantees is required for the sale of the
Offered
Securities
and the Guarantees to the Purchasers as contemplated hereby
or
for the
resales of the Offered Securities by the several Purchasers in
the
manner
contemplated by this Agreement assuming the accuracy of
the
Purchasers' representations in Section 4 hereof.
8
<PAGE>
(ff) None of the
Issuers, nor any of their respective affiliates,
nor any
person acting on behalf of any of them (other than the
Purchasers,
as to whom
the Issuers make no representation) (i) has, within the
six-month
period prior to the date hereof, offered or sold in the
United
States or
to any U.S. person (as such terms are defined in Regulation
S
under the
Securities Act) the Offered Securities, or any security of
the
same class
or series as the Offered Securities or (ii) has offered or
will
offer or
sell the Offered Securities (A) in the United States by means
of
any form
of general solicitation or general advertising within the
meaning
of Rule
502(c) under the Securities Act or (B) with respect to any
such
securities
sold in reliance on Rule 903 of Regulation S ("REGULATION
S")
under the
Securities Act, by means of any directed selling efforts
within
the
meaning of Rule 902(c) of Regulation S. Each of the Issuers,
their
affiliates
and any person acting on their respective behalves have
complied
and will comply with the offering restrictions requirement
of
Regulation
S. None of the Issuers have entered or will enter into
any
contractual arrangement with respect to the distribution of the
Offered
Securities
except for this Agreement.
(gg) None of the
Issuers nor any agent thereof acting on the behalf
of them
has taken, and none of them will take, any action that might
cause
this
Agreement or the issuance or sale of the Offered Securities
to
violate
Regulation T, Regulation U or Regulation X of the Board
of
Governors
of the Federal Reserve System.
(hh) The Company, the
Guarantors and each of their respective
subsidiaries carry, or
are covered by, insurance in such amounts and
covering
such risks as is adequate for the conduct of their
respective
businesses
and the value of their respective properties and as is
customary
for companies engaged in similar businesses in similar
industries.
(ii) There are no
contracts, agreements or understandings between
any Issuer
and any person granting such person the right to require
any
Issuer to
file a registration statement under the Securities Act
with
respect to
any securities of any Issuer, except (i) as contemplated by
the
Registration Rights Agreement, (ii) with respect to the common
stock of
the
Company to be issued in connection with the Reorganization and
(iii)
registration rights that will be terminated upon consummation of
the
Reorganization, or to require any Issuer to include such securities
with
the
Offered Securities and the Guarantees registered pursuant to
any
Registration Statement.
(jj) No "nationally
recognized statistical rating organization" as
such term
is defined for purposes of Rule 436(g)(2) under the
Securities
Act (i)
has imposed (or has informed the Company or any Guarantor that
it
is
considering imposing) any condition (financial or otherwise) on
the
Company's
or any Guarantor's retaining any rating assigned to the
Company
or any
Guarantor, any securities of the Company or any Guarantor or
(ii)
has
indicated to the Company or any Guarantor that it is considering
(a)
the
downgrading, suspension, or withdrawal of, or any review for
a
possible
change that does not indicate the direction of the
possible
change in,
any rating so assigned or (b) any change in the outlook for
any
rating of
the Company, any Guarantor or any securities of the Company
or
any
Guarantor.
9
<PAGE>
(kk) No form of
general solicitation or general advertising (as
defined in
Regulation D under the Securities Act) was used by any
Issuer
or any of
their respective representatives (other than the Purchasers,
as
to whom
the Issuers make no representation) in connection with the
offer
and sale
of the Offered Securities contemplated hereby, including,
but,
not
limited to, articles, notices or other communications published in
any
newspaper,
magazine, or similar medium or broadcast over television
or
radio, or
any seminar or meeting whose attendees have been invited by
any
general
solicitation or general advertising. No securities of the
same
class as
the Offered Securities have been issued and sold by the
Note
Issuers
within the six-month period immediately prior to the date
hereof.
(ll) None of the
Issuers nor any of their respective affiliates or
any person
acting on their behalf (other than the Purchasers, as to
whom
the
Issuers make no representation) has engaged or will engage in
any
directed
selling efforts within the meaning of Regulation S with
respect
to the
Offered Securities or the Guarantees.
(mm) The Offered
Securities offered and sold in reliance on
Regulation
S have been offered and will be offered and sold only in
offshore
transactions.
(nn) The sale of the
Offered Securities pursuant to Regulation S is
not part
of a plan or scheme to evade the registration provisions of
the
Securities
Act.
(oo) The Company
maintains and will maintain disclosure controls
and
procedures (as defined in Rule 13a-15 of the Exchange Act) designed
to
ensure
that information required to be disclosed by the Company in
the
reports
that it files or submits under the Exchange Act is
recorded,
processed,
summarized and reported in accordance with the Exchange Act
and
the rules
and regulations thereunder. The Company has carried out and
will
carry out
evaluations, under the supervision and with the participation
of
the
Company's management, of the effectiveness of the design and
operation
of the
Company's disclosure controls and procedures in accordance
with
Rule
13a-15 of the Exchange Act.
(pp) None of the Issuers, nor any director, officer, agent,
employee
or other
person associated with or acting on behalf of any Issuer,
has
used any
corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity;
made any
direct or indirect unlawful payment to any foreign or
domestic
government
official or employee from corporate funds; violated or is
in
violation
of any provision of the Foreign Corrupt Practices Act of
1977;
or made any bribe, rebate, payoff,
influence payment, kickback or other
unlawful
payment.
(qq) The Company is in
compliance in all material respects with all
presently
applicable provisions of ERISA; no "reportable event"
(as
defined in ERISA), has
occurred with respect to any "pension plan" (as
defined in
ERISA), for which the Company would have any liability;
the
Company
has not incurred and does not expect to incur liability under
(i)
Title IV
of ERISA with respect to termination of, or withdrawal from,
any
"pension
plan" or (ii) Sections 412 or 4971 of the Internal Revenue
Code
of 1986,
as amended, including the regulations and published
interpretations thereunder (the
10
<PAGE>
"CODE");
and each "pension plan" for which the Company would have
any
liability
that is intended to be qualified under Section 401(a) of
the
Code is so
qualified in all material respects and nothing has
occurred,
whether by
action or by failure to act, which would cause the loss of
such
qualification.
(rr) The Company and
each Guarantor (i) makes and keeps accurate
books and
records and (ii) maintains internal accounting controls
that
provide
reasonable assurance that (A) transactions are executed
in
accordance
with management's authorization, (B) transactions are
recorded
as
necessary to permit preparation of its financial statements and
to
maintain
accountability for its assets, (C) access to its assets
is
permitted
only in accordance with management's authorization and (D)
the
reported
accountability for its assets is compared with existing assets
at
reasonable
intervals.
(ss)
Except as disclosed in
the Offering Document, the Company and
the
Guarantors have filed all federal, state and local income
and
franchise
tax returns required to be filed through the date hereof
and
have paid
all taxes due thereon, and no tax deficiency has been
determined
adversely
to the Company, the Guarantors or any of their
respective
subsidiaries which has had (nor does the Company or the Guarantors
have
any
knowledge of any tax deficiency which, if determined adversely to
the
Company,
the Guarantors or any of their respective subsidiaries,
would
have)
individually or in the aggregate, a Material Adverse Effect on
the
Company,
the Guarantors and their respective subsidiaries.
(tt) Prior to the date
hereof, neither the Company nor any of its
affiliates
has taken any action which is designed to or that has
constituted or that might have been expected to cause or result
in
stabilization or manipulation of the price of any security of the
Company
in
connection with the offering of the Offered Securities.
(uu) The Offering
Document contains all the information specified
in, and
meets the requirements of, Rule 144A(d)(4) under the
Securities
Act.
(vv) No relationship,
direct or indirect, required to be described
under Item
404 of Regulation S-K exists between or among the Issuers
on
the one
hand, and the directors, officers or stockholders of any Issuer
on
the other hand, that
is not described in the Offering Document.
(ww) The
market-related and subscriber-related data and estimates
included
in the Offering Document are based on or derived from
sources
which the
Company believes to be accurate and reliable.
3.
Purchase,
Sale and Delivery of Offered Securities. The Escrow
Company will deliver against
payment of the purchase price the Offered
Securities in the form of one
or more permanent global Securities in definitive
form (the "GLOBAL
SECURITIES") deposited with the Trustee as custodian for
The
Depository Trust Company
("DTC") and registered in the name of Cede & Co., as
nominee for DTC. Interests in
any permanent Global Securities will be held only
in book-entry form through
DTC, except in the limited circumstances described in
the Offering Document.
Payment for the Offered Securities shall be made by the
Purchasers in Federal
(same
11
<PAGE>
day) funds by official check
or checks or wire transfer to an account at a bank
acceptable to CSFB on July
19, 2004, or at such other time not later than seven
full business days thereafter
as CSFB and the Company determine, such time being
herein referred to as the
"CLOSING DATE", against delivery to the Trustee as
custodian for DTC of the
Global Securities representing all of the Securities.
The Global Securities will be
made available for checking at the office of
O'Melveny & Myers LLP,
Times Square Tower, 7 Times Square, New York, New York
10036 at least 24 hours prior
to the Closing Date.
As
compensation for the Purchasers' commitments, the Company will pay
to
the Purchasers for their
proportionate accounts the sum of 97% of the aggregate
principal amount of the
Offered Securities purchased by the Purchasers on the
Closing Date as commissions
for sale of the Offered Securities under this
Agreement; provided, however
that no such compensation will be due to Purchaser
in the event of a Special
Mandatory Redemption. Such payment will be made on the
Merger Date, with respect to
the Offered Securities purchased on the Closing
Date.
4.
Representations by Purchasers; Resale by Purchasers. (a)
Each
Purchaser severally
represents and warrants to the Escrow Company and the
Company that it is an
"accredited investor" within the meaning of Regulation D
under the Securities
Act.
(b) Each
Purchaser severally acknowledges that the Offered
Securities
have not been registered under the Securities Act and may
not
be offered
or sold within t
