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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
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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
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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
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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,
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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
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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.
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(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.
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(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 the Un
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