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EXHIBIT 2.4
EXECUTION COPY
DOBSON CELLULAR SYSTEMS, INC.
$250,000,000 of 8 3/8% FIRST PRIORITY SENIOR SECURED NOTES DUE
2011
$250,000,000 of FIRST
PRIORITY FLOATING RATE SENIOR SECURED NOTES DUE 2011
and
$325,000,000 of 9 7/8% SECOND PRIORITY SENIOR SECURED NOTES DUE
2012
PURCHASE AGREEMENT
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October 26, 2004
Morgan Stanley & Co.
Incorporated
Lehman Brothers
Inc.
Bear, Stearns & Co.
Inc.
c/o Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York
10036
Ladies and
Gentlemen:
Dobson Cellular Systems, Inc., an Oklahoma corporation (the
"Company"),
proposes to issue and sell
(the "Offering") to the several Initial Purchasers
named in Schedule I hereto
(the "Initial Purchasers"), for whom Morgan Stanley
&
Co. Incorporated (the
"Representative") is acting as representative, (i)
$250,000,000 in aggregate
principal amount of its First Priority Floating Rate
Senior Secured Notes due 2011
(the "2011 Floating Rate Notes") pursuant to the
terms of an indenture (the
"2011 Indenture"), to be dated as of November 8,
2004, among the Company,
Dobson Communications Corporation, an Oklahoma
corporation and parent of the
Company ("Parent"), certain direct or indirect
wholly owned Subsidiaries (as
such term is defined in Section 13 hereof) of
Parent listed in Schedule II
hereto (collectively, the "Subsidiary Guarantors"
and together with Parent, the
"Guarantors") and the Bank of Oklahoma, as trustee
(the "2011 Trustee"), (ii)
$250,000,000 in aggregate principal amount of its 8
3/8% First Priority Senior
Secured Notes due 2011 (the "2011 Fixed Rate Notes"
and together with the 2011
Floating Rate Notes, the "2011 Notes" ) pursuant to
the terms of the 2011
Indenture and (iii) $325,000,000 in aggregate principal
amount of its 9 7/8% Second
Priority Senior Secured Notes due 2012 (the "2012
Notes" and together with the
2011 Notes, the "Notes") pursuant to the terms of
an indenture (the "2012
Indenture" and together with the 2011 Indenture, the
"Indentures"), to be dated as
of November 8, 2004, among the Company, the
Guarantors and the Bank of
New York Midwest Trust Company as trustee (the "2012
Notes Trustee" and together
with the 2011 Notes Trustee, the "Trustees"). The
obligations of the Company
under the 2011 Notes and the 2011 Indenture will be
unconditionally guaranteed by
the Guarantors pursuant to the terms of the 2011
Indenture (the "2011
Guarantees"). The obligations of the Company under the
2012
Notes and the 2012 Indenture
will be unconditionally guaranteed by the
Guarantors pursuant to the
terms of the 2012 Indenture (the "2012 Guarantees"
and together with the 2011
Guarantees, the "Guarantees"). As used herein, the
term "Dobson Group" means the
Company, Parent, the Subsidiary Guarantors and
each other Subsidiary of the
Company. Capitalized terms used but not defined
herein shall have the
meanings specified therefor in the Offering Memorandum
(as
defined below).
The Notes will be offered and sold to the Initial Purchasers
pursuant
to an exemption from the
registration requirements under the Securities Act of
1933, as amended (the
"Securities Act"). The Company and the Guarantors have
prepared a preliminary
offering
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memorandum, dated October 20,
2004 as supplemented and amended by the supplement
dated October 26, 2004 to
such preliminary offering memorandum (as so
supplemented and amended, the
"Preliminary Offering Memorandum") and will
prepare a final offering
memorandum, to be dated October 26, 2004 (the "Offering
Memorandum," and, together
with the Preliminary Offering Memorandum, the
"Offering Documents"),
relating to the Company, the Guarantors, the Notes and
the Guarantees. As used
herein, the term "Offering Documents" shall include in
each case the documents
incorporated by reference therein. The terms
"supplement," "amendment" and
"amend" as used herein with respect to an Offering
Document shall include all
documents deemed to be incorporated by reference in
the Preliminary Offering
Memorandum or Offering Memorandum that are filed
subsequent to the date of
such Offering Document with the Securities and
Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the
"Exchange Act").
The Initial Purchasers may make offers of the Notes and the
Guarantees
purchased hereunder on the
terms set forth in the Offering Documents, as amended
or supplemented, solely to
(i) persons whom they reasonably believe to be
"qualified institutional
buyers" as defined in Rule 144A under the Securities
Act ("Qualified Institutional
Buyers") and (ii) outside the United States to
persons other than U.S.
Persons in offshore transactions meeting the
requirements of Regulation S
under the Securities Act ("Regulation S") (such
persons specified in clauses
(i) and (ii) being referred to herein as the
"Eligible Purchasers"). As
used herein, the terms "offshore transaction,"
"United States" and "U.S.
person" have the respective meanings given to them in
Regulation S. The Initial
Purchasers represent that they intend initially to
offer the Notes and the
Guarantees to Eligible Purchasers at the price specified
on the cover page of the
Offering Memorandum. Thereafter, the offering price may
be changed at any time
without notice.
Holders (including subsequent transferees) of the Notes will have
the
registration rights set forth
in the registration rights agreement substantially
in the form attached hereto
as Exhibit A (the "Registration Rights Agreement"),
for so long as such Notes
constitute Transfer Restricted Securities (as defined
in the Registration Rights
Agreement). Pursuant to the Registration Rights
Agreement, the Company and
the Guarantors will agree to file with the Commission
under the circumstances set
forth therein (i) a registration statement under the
Securities Act (the "Exchange
Offer Registration Statement") relating to the
Company's First Priority
Floating Rate Senior Secured Notes due 2011, 8 3/8%
First Priority Senior Secured
Notes due 2011 and 9 7/8% Second Priority Senior
Secured Notes due 2012 (the
"Exchange Notes") to be offered in exchange for the
Notes (such offer to exchange
being referred to collectively as the "Exchange
Offer") and (ii) if required
by the terms of the Registration Rights Agreement,
a shelf registration
statement pursuant to Rule 415 under the Securities Act
(the "Shelf Registration
Statement") relating to the resale by certain holders
of the Notes, and to use
their commercially reasonable efforts to cause such
Registration Statements to be
declared effective. This Agreement, the Notes, the
Guarantees, the Exchange
Notes, the Indentures and the Registration Rights
Agreement are hereinafter
referred to collectively as the "Operative Documents".
This is to confirm the
agreements concerning the purchase of the Notes and the
Guarantees from the Company
and the Guarantors by the Initial Purchasers.
Pursuant to (i) the 2011 Notes Security Agreement to be dated as of
the
Closing Date (as defined in
Section 2 hereof) (the "2011 Notes Security
Agreement") entered into by
the
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Company and the Guarantors in
favor of the Bank of Oklahoma as collateral
trustee (in such capacity,
the "2011 Notes Collateral Trustee") for the benefit
of the holders of the 2011
Notes (the "2011 Creditors"), and (ii) the 2012 Notes
Security Agreement to be
dated as of the Closing Date (the "2012 Notes Security
Agreement" and, together with
the 2011 Notes Security Agreement and the Blocked
Account Agreement to be dated
as of the Closing Date and entered into by the
Company, the 2011 Notes
Trustee and Bank of America, N.A., the Blocked Account
Agreement to be dated as of
the Closing Date and entered into by the Company,
the 2012 Notes Trustee and
Bank of America, N.A., the Blocked Account Agreement
to be dated as of the Closing
Date and entered into by DOC, the 2011 Notes
Trustee and Bank of America,
N.A., the Blocked Account Agreement to be dated as
of the Closing Date and
entered into by DOC, the 2012 Notes Trustee and Bank of
America, N.A., the Account
Agreement to be dated as of the Closing Date and
entered into by the Company,
the 2011 Notes Trustee and Deutsche Bank AG New
York Branch, the Account
Agreement to be dated as of the Closing Date and
entered into by the Company,
the 2012 Notes Trustee and Deutsche Bank AG New
York Branch, the Intellectual
Property Security Agreements to be dated as of the
Closing Date and entered into
by each of DCC and the Company in favor of the
2011 Notes Trustee for the
benefit of the holders of the 2011 Notes, the
Intellectual Property
Security Agreements to be dated as of the Closing Date
and
entered into by each of
Parent and the Company in favor of the 2012 Notes
Trustee for the benefit of
the holders of the 2012 Notes, the assignments of
certain equipment leases to
be dated as of the Closing Date and entered into by
each of the Company and the
Guarantors in favor of the 2011 Notes Trustee for
the benefit of the holders of
the 2011 Notes and the assignments of certain
equipment leases to be dated
as of the Closing Date and entered into by each of
the Company and the
Guarantors in favor of the 2012 Notes Trustee for the
benefit of the holders of the
2012 Notes, the "Collateral Documents"), entered
into by the Company and the
Guarantors in favor of the Bank of New York Midwest
Trust Company as collateral
trustee (in such capacity, the "2012 Notes
Collateral Trustee" and,
together with the 2011 Notes Collateral Trustee, the
"Collateral Trustees") for
the benefit of the holders of the 2012 Notes (the
"2012 Creditors" and,
together with the 2011 Creditors, the "Secured
Parties"),
(x) the 2011 Notes are to be
secured by a valid and enforceable perfected first
priority security interest in
the Primary Collateral and a valid and enforceable
perfected second priority
security interest in the Other Collateral and (y) the
2012 Notes are to be secured
by a valid and enforceable perfected second
priority security interest in
the Primary Collateral and a valid and enforceable
perfected third priority
security interest in the Other Collateral (each subject
to certain permitted liens
and exceptions) in the property so described in the
Collateral Documents. On the
Closing Date, the Collateral Trustees will enter
into an Intercreditor
Agreement with an administrative agent under the
Company's
senior secured revolving
credit facility with respect to the Collateral (as such
term is defined in the 2011
Notes Security Agreement and the 2012 Notes Security
Agreement) securing such
credit facility (the "Intercreditor Agreement" and,
together with the Collateral
Documents, the "Security Documents"). Capitalized
terms used but not defined in
this paragraph shall have the meanings specified
therefor in the Security
Documents.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND
THE
GUARANTORS. Each of the
Company and the Guarantors,jointly and severally,
represents and warrants to,
and agrees with the Initial Purchasers that, as of
the date hereof:
(a) Subject to compliance by the Initial Purchasers with
the
representations and
warranties set forth in Section 2 hereof and with the
procedures set forth in
Section 7 hereof,
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it is not necessary in
connection with the offer, sale and delivery of the
Notes
and the Guarantees to the
Initial Purchasers and to each Eligible Purchaser in
the manner contemplated by
this Agreement and the Offering Documents to register
the Notes and the Guarantees
under the Securities Act or, until such time as the
Exchange Notes are issued
pursuant to an effective registration statement, to
qualify the Indentures under
the Trust Indenture Act of 1939 (the "Trust
Indenture Act," which term,
as used herein, includes the rules and regulations
of the Commission promulgated
thereunder).
(b) Neither the Company, any Guarantor nor any affiliate (as such
term
is defined in Rule 501(b) of
Regulation D under the Securities Act (each, an
"Affiliate")) of the Company
or any Guarantor has, directly or indirectly,
solicited any offer to buy or
offered to sell, or will, directly or indirectly,
solicit any offer to buy or
offer to sell, in the United States or to any United
States citizen or resident,
any security (as defined in the Securities Act)
which is or would be
integrated with the sale of the Notes and the Guarantees
in
a manner that would require
the Notes or the Guarantees to be registered under
the Securities Act. None of
the Company, any Guarantor, nor any of their
respective Affiliates, or any
person acting on any of their behalf (other than
the Initial Purchasers, as to
whom the Company and the Guarantors make no
representation or warranty)
has engaged or will engage, in connection with the
offering of the Notes and
Guarantees, in any form of general solicitation or
general advertising within
the meaning of Rule 502 under the Securities Act.
With respect to those Notes
and Guarantees sold in reliance upon Regulation S,
(i) none of the Company, the
Guarantors and their respective Affiliates or any
person acting on any of their
behalf (other than the Initial Purchasers, as to
whom the Company and the
Guarantors make no representation or warranty) has
engaged or will engage in any
directed selling efforts within the meaning of
Regulation S and (ii) each of
the Company, the Guarantors and their respective
Affiliates and any person
acting on any of their behalf (other than the Initial
Purchasers, as to whom the
Company and the Guarantors make no representation or
warranty) has complied and
will comply with the offering restrictions set forth
in Regulation S.
(c) The Notes and the Guarantees will, when issued, satisfy
the
requirements set forth in
Rule 144A(d)(3) under the Securities Act.
(d) (i) Each document, if any, filed or to be filed pursuant to
the
Exchange Act and incorporated
by reference in the Offering Documents complied or
will comply when so filed in
all material respects with the Exchange Act and the
applicable rules and
regulations of the Commission thereunder and (ii) the
Preliminary Offering
Memorandum as of its date did not, and the Offering
Memorandum at the date
hereof, does not, and at the Closing Date, will not,
contain any untrue statement
of a material fact or omit to state a material fact
necessary to make the
statements therein, in the light of the circumstances
under which they were made,
not misleading, except that the representations and
warranties set forth in this
Section 1(d) do not apply to statements or
omissions in the Offering
Documents based upon information furnished to the
Company or the Guarantors in
writing by or on behalf of the Initial Purchasers
expressly for use therein. No
order preventing the use of any of the Offering
Documents, 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 Securities Act or any state securities or blue
sky laws has been
issued.
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(e) This Agreement has been duly authorized, executed and delivered
by
the Company and the
Guarantors.
(f) Each of the Registration Rights Agreement and the
Security
Documents has been duly
authorized by the Company and the Guarantors and when
duly executed and delivered
by the Company and the Guarantors (and assuming due
execution and delivery by the
parties hereto and thereto), will constitute a
valid and legally binding
agreement of the Company and the Guarantors,
enforceable against the
Company and the Guarantors in accordance with their
terms, except where (i) the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization,
fraudulent conveyance, moratorium or other similar
laws now or hereafter in
effect relating to rights of creditors and other
obligees generally, (ii) the
remedy of specific performance and other forms of
equitable relief may be
subject to certain equitable defenses and principles and
to the discretion of the
court before which the proceedings may be brought and
(iii) rights to indemnity and
contribution thereunder may be limited by
applicable law and public
policy. Pursuant to the Registration Rights Agreement,
the Company and the
Guarantors will agree to file with the Commission, under
the
circumstances set forth
therein, (i) an Exchange Offer Registration Statement
and (ii) to the extent
required by the Registration Rights Agreement, a Shelf
Registration Statement, and
in each case, to use their commercially reasonable
efforts to cause such
registration statements to be declared effective by the
dates specified in the
Registration Rights Agreement.
(g) The Notes to be purchased by the Initial Purchasers from
the
Company are in the form
contemplated by the applicable Indenture, have been duly
authorized for issuance and
sale pursuant to this Agreement and the applicable
Indenture and, at the Closing
Date, will have been duly executed by the Company
and, when authenticated in
the manner provided for in the applicable Indenture
and delivered against payment
of the purchase price therefor, will constitute
valid and binding agreements
of the Company, enforceable in accordance with
their terms, except as the
enforcement thereof may be limited by bankruptcy,
insolvency, reorganization,
moratorium or other similar laws relating to or
affecting the rights and
remedies of creditors or by general equitable
principles and will be
entitled to the benefits of the Indenture. 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 applicable
Indenture, and issued against
surrender of the Notes as contemplated by the
Registration Rights Agreement
and the Exchange Offer, will constitute valid and
binding obligations of the
Company, enforceable against the Company in
accordance with their terms,
except as the enforcement thereof may be limited by
bankruptcy, insolvency,
reorganization, moratorium, or similar laws relating to
or affecting enforcement of
the rights and remedies of creditors or by general
principles of equity and will
be entitled to the benefits of the applicable
Indenture.
(h) The Guarantees have been duly authorized by each of the
Guarantors
and, when executed and
delivered by each Guarantor, will be valid and binding
obligations of such
Guarantor, enforceable in accordance with their terms,
subject to applicable
bankruptcy, insolvency or similar laws affecting
creditors' rights generally
and general principles of equity, and will be
entitled to the benefits of
the 2011 Indenture and the 2012 Indenture (as the
case may be) and the
Registration Rights Agreement.
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(i) Each Indenture has been duly authorized by the Company and
the
Guarantors and, when duly
executed by the proper officers of the Company and the
Guarantors (assuming due
execution and delivery by the Trustees) and delivered
by the Company and the
Guarantors, will constitute a valid and binding
agreement
of the Company and the
Guarantors enforceable against the Company and the
Guarantors in accordance with
its terms, subject to the effects of bankruptcy,
insolvency, fraudulent
conveyance, reorganization, moratorium and other similar
laws relating to or affecting
creditors' rights generally and general equitable
principles (whether
considered in a proceeding in equity or at law); no
qualification of the
Indentures under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture
Act"), is required in connection with the rules
and regulations of the
Commission, and each Indenture, when executed and
delivered, will conform in
all material respects to the description thereof
contained in the Offering
Memorandum.
(j) The Notes, the Exchange Notes, the Guarantees and the
Indentures
will conform in all material
respects to the respective statements relating
thereto contained in the
Offering Memorandum.
(k) The Security Documents have been duly authorized by the Company
and
each Guarantor and when duly
executed and delivered by the Company and each
Guarantor, will create a
valid and enforceable security interest in the
Collateral in favor of the
Collateral Trustees for the benefit of the Secured
Parties.
(l) The Company and the Guarantors have sufficient rights in
the
Collateral to grant the
security interests contemplated by the Collateral
Documents, free and clear of
any Liens (as defined below) claim, option or right
of others, other than
Permitted Liens (as defined below). No effective
financing
statement or other instrument
similar in effect covering all or any part of such
Collateral or listing the
Company and the Guarantors or any trade name of the
Company and the Guarantors as
debtors is on file in any recording office, except
such as may have been filed
pursuant to the Company's senior secured revolving
credit facility (the
"Existing Credit Facility"), the Collateral Documents,
as
described in the
Intercreditor Agreement and with respect to Permitted
Liens.
(m) (i) The execution and delivery by the Company and each
Guarantor
of, and the performance by
the Company and each Guarantor of its respective
obligations under, this
Agreement, the Indentures, the Registration Rights
Agreement, the Notes (in the
case of the Company), the Guarantees (in the case
of the Guarantors) and the
Security Documents, (ii) the grant by the Company and
the Guarantors of the
security interests pursuant to the Collateral Documents,
(iii) the perfection of the
security interests created under the Collateral
Documents (including the
first and second priority nature thereof, as the case
may be) and (iv) the exercise
by each Collateral Trustee of the remedies in
respect of the Collateral
pursuant to the Collateral Documents, will not
contravene any provision of
applicable law or the certificate of incorporation
or by-laws of Parent or any
of its Subsidiaries or any agreement or other
instrument binding upon
Parent or any of its Subsidiaries (including the Company
and any Subsidiary Guarantor)
that is material to Parent and its Subsidiaries,
taken as a whole, or any
judgment, order or decree of any governmental body,
agency or court having
jurisdiction over Parent or any of its Subsidiaries, and
no consent, approval,
authorization or order of, or filing or qualification
with, any governmental body
or agency is required for the performance by the
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Company or each Guarantor of
its respective obligations under this Agreement,
the Indentures, the
Registration Rights Agreement, the Notes (in the case of
the
Company), the Guarantees (in
the case of the Guarantors) or the Security
Documents, except (1) such as
may be required by the securities or Blue Sky laws
of the various states in
connection with the offer and sale of the Notes and the
Guarantees (2) by federal and
state securities laws with respect to the
Company's and each
Guarantor's obligations under the Registration Rights
Agreement, (3) as set forth
in the Offering Documents, (4) such other consents
and approvals as shall have
been obtained on or prior to the date of this
Agreement, (5) the filing of
financing and continuation statements under the
Uniform Commercial Code,
which financing statements have been filed and are in
full force and effect, and
the recordation of an intellectual property security
agreement referred to in the
Collateral Documents with the U.S. Patent and
Trademark Office and the U.S.
Copyright Office, which agreement has been duly
recorded and is in full force
and effect and (6) regulatory approvals required
in connection with the
granting or perfection of security interests granted by
the Company and certain
Guarantors.
(n) KPMG LLP, who have expressed their opinions with respect to
the
audited financial statements
(which term as used in this Agreement includes the
related notes thereto) of
each of Parent and American Cellular Corporation
included or incorporated by
reference in the Offering Memorandum, are
independent public
accountants with respect to each of Parent and American
Cellular Corporation within
the meaning of Regulation S-X under the Exchange
Act.
(o) The financial statements, together with the related notes,
included
or incorporated by reference
in the Offering Memorandum present fairly the
consolidated financial
position of each of Parent and its Subsidiaries and
American Cellular Corporation
and its Subsidiaries, as the case may be, as of
and at the dates indicated
and the results of their operations and cash flows
for the periods specified.
Such financial statements have been prepared in
conformity with generally
accepted accounting principles applied on a consistent
basis throughout the periods
involved, except as may be expressly stated in the
related notes thereto. The
financial data set forth in the Offering Memorandum
under the captions
"Summary--Summary Consolidated Financial and Other Data"
and
"Selected Consolidated
Financial Data" fairly present in all material respects
the information set forth
therein on a basis consistent with that of the audited
and unaudited financial
statements contained in the Offering Memorandum. The pro
forma consolidated condensed
financial statements of Parent and its Subsidiaries
and the related notes thereto
incorporated by reference in the Offering
Memorandum fairly present in
all material respects the information contained
therein, have been prepared
in accordance with the Commission's rules and
guidelines with respect to
pro forma financial statements and have been properly
presented on the bases
described therein, and the assumptions used in the
preparation thereof are
reasonable and the adjustments used therein are
appropriate to give effect to
the transactions and circumstances referred to
therein.
(p) Subsequent to the respective dates as of which information is
given
in the Offering Documents,
(i) there has been no material adverse change in the
condition, financial or
otherwise, or in the earnings, business, operations or
prospects, whether or not
arising from transactions in the ordinary course of
business, of Parent and each
of its Subsidiaries, considered as one entity (any
such change is called a
"Material Adverse Change") or any development that would
reasonably be expected to
result in a Material Adverse Change; (ii) other than
the Notes
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and the Guarantees, neither
Parent nor any of its Subsidiaries, considered as
one entity, have incurred any
liability or obligation, indirect, direct or
contingent, not in the
ordinary course of business nor entered into any
transaction or agreement not
in the ordinary course of business, except for any
such liability, obligation,
transaction or agreement that would not reasonably
be expected to result in a
Material Adverse Change; and (iii) there has been no
dividend or distribution of
any kind declared, paid or made by Parent or, except
for dividends paid to Parent
or other members of the Dobson Group, any other
members of the Dobson Group
on any class of capital stock or repurchase or
redemption by Parent or any
other members of the Dobson Group of any class of
capital stock other than
accrued but unpaid dividends on preferred stock of
Parent outstanding on the
date hereof.
(q) Parent and each Subsidiary has been duly organized and is
validly
existing as a corporation or
limited liability company, as the case may be, in
good standing under the laws
of their respective jurisdictions of organization,
is duly qualified to do
business and are in good standing as foreign
corporations in each
jurisdiction in which its respective ownership or lease
of
property or the conduct of
their respective businesses requires such
qualification, except where
the failure to be so qualified would not reasonably
be expected to result in a
Material Adverse Change, and each has all power and
authority necessary to own or
hold its respective properties and to conduct the
businesses in which it is
engaged, except where the failure to have such power
and authority would not
reasonably be expected to result in a Material Adverse
Change.
(r) Each of Parent and the Company has an authorized capitalization
as
set forth in the Offering
Memorandum and all of the issued shares of capital
stock of Parent have been
duly authorized and validly issued, are fully paid and
non-assessable and conform,
in all material respects, to the description thereof
contained in the Offering
Memorandum. All of the issued shares of capital stock
of each Subsidiary of Parent
or the Company that is a corporation have been duly
and validly authorized and
issued, are fully paid and non-assessable and are
owned directly or indirectly
by Parent or the Company, free and clear of any
security interest, mortgage,
pledge, lien, encumbrance or adverse claim
(collectively, "Liens"),
except for security interests granted pursuant to the
Collateral Documents, the
amendment (as described in the Offering Memorandum) to
the Existing Credit Facility
to be entered into on the Closing Date (the
"Amended Credit Facility")
and the Liens expressly permitted under the
Indentures ("Permitted
Liens"), and all of membership interests in each member
of the Dobson Group that is a
limited liability company are owned directly or
indirectly by Parent and the
Company, free and clear of all Liens, except for
Permitted Liens.
(s) Neither Parent nor
any Subsidiary is in violation of its charter or
by-laws or is in default (or,
with the giving of notice or lapse of time, would
be in default) ("Default")
under any indenture, mortgage, loan or credit
agreement, note, contract,
franchise, lease or other instrument to which Parent
or any Subsidiary, is a party
or by which it or any of them may be bound, or to
which any of the property or
assets of Parent or any Subsidiary, is subject,
including the Amended Credit
Facility (each, an "Existing Instrument"), except
for such Defaults as would
not, individually or in the aggregate, result in a
Material Adverse Change. The
execution, delivery and performance of this
Agreement, the Registration
Rights Agreement, the Security Documents and the
Indentures by the Company and
the Guarantors, as the case may be, and the
issuance and delivery of the
Notes, the Guarantees, or the Exchange Notes, and
consummation of
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the transactions contemplated
hereby and thereby and by the Offering Documents
have been duly authorized by
all necessary corporate action and will not result
in any violation of the
provisions of the charter or by-laws of Parent or any
Subsidiary, (ii) will not
conflict with or constitute a breach of, or Default
under, or result in the
creation or imposition of any lien, charge or
encumbrance upon any property
or assets of the Company or any Subsidiary
pursuant to, or, except for
the consent of lenders required to enter into the
Amended Credit Facility,
require the consent of any other party to, any Existing
Instrument, except for Liens
under the Amended Credit Facility and except for
such conflicts, breaches,
Defaults or Liens as would not, individually or in the
aggregate, result in a
Material Adverse Change and (iii) will not result in any
violation of any law,
administrative regulation or administrative or court
decree applicable to Parent
or any Subsidiary of Parent.
(t) Except as set forth in the Offering Memorandum, there are no
legal
or governmental actions,
suits or proceedings pending or, to the knowledge of
the Company and the
Guarantors, threatened against or affecting Parent or
any
Subsidiary of Parent which,
if determined adversely to Parent or such
Subsidiary, could reasonably
be expected to result in a Material Adverse Change
or adversely affect the
consummation of the transactions contemplated by this
Agreement. No labor dispute
with employees retained to provide services to
Parent or any of its
Subsidiaries that could result in a Material Adverse
Change
exists or, to the knowledge
of the Company and the Guarantors, is threatened or
imminent.
(u) Parent and its Subsidiaries own or possess sufficient
trademarks,
trade names, patent rights,
copyrights, licenses, approvals, trade secrets and
other similar rights
(collectively, "Intellectual Property Rights")
reasonably
necessary to conduct their
businesses as now conducted; and the expected
expiration of any of such
Intellectual Property Rights would not reasonably
expected to result in a
Material Adverse Change. Parent and its Subsidiaries
have made or performed all
filings, recordings and other acts and have paid all
required fees and taxes to
maintain and protect their ownership interest in
their owned Intellectual
Property Rights in full force and effect, and to
protect and maintain their
interest therein except where the failure to do so
would not reasonably be
expected to result in a Material Adverse Effect. Parent
and its Subsidiaries have
used proper statutory notice in connection with their
use of each patent, trademark
and copyright in the Intellectual Property Rights.
Neither Parent nor any
Subsidiary has received any notice of infringement or
conflict with asserted
Intellectual Property Rights of others, which
infringement or conflict, if
the subject of an unfavorable decision, would
reasonably be expected to
result in a Material Adverse Change.
(v) Parent and its Subsidiaries possess such valid and
current
certificates, authorizations
or permits issued by the appropriate state, federal
or foreign regulatory
agencies or bodies necessary to conduct their respective
businesses, and neither
Parent nor any Subsidiary has received any notice of
proceedings relating to the
revocation or modification of, or non-compliance
with, any such certificate,
authorization or permit which, singly or in the
aggregate, if the subject of
an unfavorable decision, ruling or finding, would
reasonably be expected to
result in a Material Adverse Change.
(w) Parent and each Subsidiary have good title to all the
properties
and assets reflected as owned
in the financial statements referred to in
paragraph (o) above, in each
case free and clear of any Liens (other than
Permitted Liens), except as
otherwise set forth in the
-9-
<PAGE>
Offering Memorandum and
except as would not reasonably be expected to result in
a Material Adverse Change.
The real property, improvements, equipment and
personal property held under
lease by Parent and each Subsidiary are held under
valid and enforceable leases,
except as would not reasonably be expected to
result in a Material Adverse
Change.
(x) Parent and each Subsidiary, as applicable, have filed all
necessary
federal, state and foreign
income and franchise tax returns and have paid all
taxes required to be paid by
any of them as reflected on such returns, and, if
due and payable, any related
or similar assessment, fine or penalty levied
against any of them. Parent
has made adequate charges, accruals and reserves, if
any, in the applicable
financial statements referred to in paragraph (o) above
in respect of all federal,
state and foreign income and franchise taxes for all
periods as to which the tax
liability of Parent or any of its consolidated
Subsidiaries has not been
finally determined.
(y) Neither the Company nor the Guarantors are, and after receipt
of
payment for the Notes and the
Guarantees, will not be, an "investment company"
within the meaning of the
Investment Company Act of 1940, as amended.
(z) Parent and each Subsidiary is insured by recognized,
financially
sound institutions with
policies in such amounts and with such deductibles and
covering such risks as are
generally deemed adequate and customary for their
businesses.
(aa) None of Parent or any of its Subsidiary has taken nor will
take,
directly or indirectly, any
action designed to or that might be reasonably
expected to cause or result
in stabilization or manipulation of the price of any
security of Parent to
facilitate the sale or resale of the Notes and the
Guarantees.
(bb) Each of the Company and the Guarantors is, and immediately
after
the Closing Date will be,
Solvent. As used herein, the term "Solvent" means,
with respect to the Company
and the Guarantors on a particular date, that on
such date (i) the fair market
value of the assets of each of the Company and the
Guarantors, as applicable, is
greater than the total amount of stated
liabilities (including
identified contingent liabilities) of the Company and
the
Guarantors, as applicable,
(ii) the present fair salable value of the assets of
each of the Company and the
Guarantors is greater than the amount that will be
required to pay the probable
liabilities of the Company and the Guarantors, as
applicable, on its debts as
they become absolute and matured, (iii) each of the
Company and the Guarantors is
able to realize upon its assets and pay its debts
and other liabilities,
including identified contingent obligations, as they
mature and (iv) the Company
and the Guarantors do not have unreasonably small
capital.
(cc) Each of Parent, its Subsidiaries (including the Company and
the
Subsidiary Guarantors) and
their direct and indirect Subsidiaries, maintains a
system of accounting controls
sufficient to provide reasonable assurances that
(i) transactions are executed
in accordance with management's general or
specific authorization; (ii)
transactions are recorded
