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Exhibit 1.1
$165,000,000
iPCS ESCROW COMPANY
iPCS, INC.
iPCS EQUIPMENT, INC.
iPCS WIRELESS, INC.
11 1/2% SENIOR NOTES DUE 2012
PURCHASE AGREEMENT
April 22, 2004
CREDIT SUISSE FIRST BOSTON LLC
BEAR, STEARNS & CO. INC.,
c/o Credit Suisse First Boston LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Ladies and Gentlemen:
1. INTRODUCTORY. iPCS 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
and Bear, Stearns & Co. Inc. (the
"Purchasers") U.S. $165,000,000 principal
amount of its 11 1/2% Senior Notes due
2012 (the "Offered Securities") to be
issued under an indenture (the
"Indenture"), dated as of the Closing Date
(as defined herein), between the
Escrow Company 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 filed with the United States Bankruptcy
Court for the Northern District of Georgia
on March 31, 2004, pursuant to
Chapter 11 of the U.S. Bankruptcy Code a
plan of reorganization, as amended on
April 16, 2004. 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 iPCS,
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
iPCS 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 "MERGER").
Upon
consummation of the Merger, 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
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operative. Notwithstanding the foregoing,
in the event of a Special Mandatory
Redemption (as defined in the Indenture),
the Company's obligations under the
Registration Rights Agreement (as defined
below) will terminate. In addition,
upon consummation of the Merger, the
Offered 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 gross 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 August 28,
2004), in an escrow account (the "ESCROW
ACCOUNT") pursuant to an Escrow Agreement
to be dated the Closing Date (the
"ESCROW AGREEMENT") between the Escrow
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 August
28, 2004 to consummate the
Reorganization on the terms described in
the Offering Circular or, in the event
of a Special Mandatory Redemption (as
defined in the Offering Circular),
released to finance the purchase price of
the Offered Securities 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 Credit Suisse First Boston LLC ("CSFB") specifically
for
use therein, it
being
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understood and
agreed that the only such information is that described as
such in Section 7(b)
hereof.
(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,
indebtedness,
liabilities or obligations, other than the Offered Securities
and any
obligations pursuant to this Agreement 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
power and
authority (corporate and other) 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 so to
qualify or to be in good standing would not have a material
adverse effect
on the condition (financial or other), business, properties
or results of
operations of the Company and its subsidiaries taken as a
whole ("Material
Adverse Effect").
(d) Each subsidiary of
the Company has been duly incorporated and is
an existing
corporation in good standing under the laws of the jurisdiction
of its
incorporation, with power and authority (corporate and other) 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 so to
qualify or to be
in good standing would not have a Material Adverse Effect;
all of the
issued and outstanding capital stock of each subsidiary of the
Company has been
duly authorized and validly issued and is fully paid and
nonassessable;
and the capital stock 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) After consummation
of the Reorganization, the Company will have
no subsidiaries
other than the entities listed on Schedule A attached
hereto.
(f) After consummation
of the Reorganization, 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, except for the incentive stock option
plan of the
Company as adopted in connection with the Reorganization.
(g) The Indenture has
been duly authorized by the Escrow Company; the
Offered
Securities have been duly authorized by the Escrow Company; and
when the Offered
Securities are delivered and paid for pursuant to this
Agreement on the
Closing
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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 to the description thereof contained in the
Offering
Document and on the Closing Date, the Indenture and such
Offered
Securities will
constitute the valid and legally binding obligations of the
Escrow 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) to
general equity principles and (iii) public policy
considerations.
(h) The Indenture has
been duly authorized, executed and delivered by
the Company and
the Guarantors; the Offered Securities have been duly
authorized by
the Company; and upon consummation of the Merger, the
Indenture will
constitute the valid and legally binding obligation of the
Company and each
of the Guarantors, enforceable against the Company and
each of the
Guarantors 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) to
general equity principles and (iii) public policy
considerations.
Upon consummation of the Merger, the Offered Securities
will constitute
the valid and legally binding obligation of the Company,
enforceable
against the Company 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.
(i) 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.
(j) 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.
(k) Except as
disclosed in the Offering Document, 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."
(l) Except as
disclosed in the Offering Document, none of the Issuers
is in violation
of its respective charter or by-laws or after giving effect
to the
Reorganization will be 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.
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(m) 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 Act"), and the
rules,
regulations and policies of the Federal Communications
Commission
(the "FCC") or
(z) the charter or by-laws of the Escrow Company, the
Company or any
such subsidiary.
(n) This Agreement has
been duly authorized, executed and delivered
by each of the
Issuers.
(o) The Registration
Rights Agreement has been duly authorized by
each of the
Issuers and, on the Closing Date, will be executed and
delivered by
each of the Issuers. 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) to general equity principles and (iii)
public policy
considerations.
(p) Each of the
Issuers has all requisite corporate 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 power and
authority to
issue, sell and deliver the Offered Securities and to issue
and deliver the
related Guarantees as provided herein and therein.
(q) The Escrow
Agreement has been duly authorized by the Escrow
Company and the
Company, and on the Closing Date will be duly executed and
delivered by the
Escrow Company and the Company. When the Escrow Agreement
has been duly
executed and delivered, the Escrow Agreement will be a valid
and legally
binding agreement of the Escrow Company and the Company,
enforceable
against the Escrow Company and the Company in accordance with
its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization,
moratorium and similar laws of general applicability
relating to or
affecting creditors' rights and to general equity
principles. The
Offering Document contains a summary of the terms of the
Escrow
Agreement, that
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fairly presents
and summarizes in all material respects the terms of the
Escrow
Agreement.
(r) The Guarantees of
the Offered Securities have been duly and
validly
authorized for issuance by each of the Guarantors and, upon
consummation of
the Merger, 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) to
general equity principles and (iii) public policy
considerations.
(s) On the Closing
Date, the Exchange Notes will have been duly and
validly
authorized for issuance by the 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 its
terms
subject to bankruptcy,
insolvency, fraudulent transfer, reorganization,
moratorium and
similar laws of general applicability relating to or
affecting
creditors' rights and to general equity principles.
(t) 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 bankruptcy, insolvency, fraudulent
transfer,
reorganization, moratorium and similar laws of general
applicability
relating to or affecting creditors' rights and to general
equity
principles
(u) 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"), will be, as of
the Closing
Date, 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 their terms subject to (i) the conditions
stated therein
and (ii) bankruptcy, insolvency, fraudulent transfer,
reorganization,
moratorium and similar laws of general applicability
relating to or
affecting creditors' rights and to general equity
principles.
(v) 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;
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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 no exceptions
that would materially interfere with the use made or to
be made thereof
by them.
(w) 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 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.
(x) 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.
(y) Except as
disclosed in the Offering Document, 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
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 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.
(z) 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.
(aa) 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 Merger, or (iii) would materially and adversely
affect the
ability of the Escrow Company
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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.
(bb) (i) D&T, who have audited certain financial statements of
the
Company and its
consolidated subsidiaries included in the Offering
Document, are
and (ii) KPMG, during the period covered by their report
included in the
Offering Document through the date of such report, were,
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,
D&T and KPMG
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 including without limitation, the
Reorganization;
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.
(cc)
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.
(dd) 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 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 be, an "investment
company" as
defined in the Investment Company Act.
(ee) 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
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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.
(ff) 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 Exempt
Resales assuming the accuracy of the Purchasers'
representations
in Section 4 hereof.
(gg) None of the Issuers, nor any of their respective affiliates,
nor
any person
acting on their respective behalves (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 and will enter into any contractual
arrangement with
respect to the distribution of the Offered Securities
except for this
Agreement.
(hh) 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.
(ii) 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.
(jj) 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 with respect to the common stock of
the Company to
be issued in connection with the Reorganization, or to
require any
Issuer to include such securities with the Offered Securities
and the
Guarantees registered pursuant to any Registration Statement.
(kk) 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)
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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.
(ll) 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.
(mm) 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.
(nn) The Offered Securities offered and sold in reliance on
Regulation
S have been
offered and will be offered and sold only in offshore
transactions.
(oo) 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.
(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 unlawful 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
"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.
<Page>
(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) 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,
except insofar as the failure to file such returns would not
have a Material
Adverse Effect and have paid all taxes due thereon and
except for such
taxes, if any, as are being contested in good faith and as
to which
adequate reserves have been provided, 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 meeting 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 day) funds by official check
or checks or wire transfer to an
account at a bank acceptable to CSFB on
April 30, 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",
<Page>
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 above 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 Issuers will pay to
the Purchasers for their proportionate
accounts the sum of 3% of the aggregate
principal amount of the Offered Securities
purchased by the Purchasers on the
Closing Date as commissions for sale of the
Offered S
