Exhibit 4.25
US UNWIRED INC.
$125,000,000 First Priority
Senior Secured Floating Rate Notes due 2010
and
$235,000,000 of 10% Second
Priority Senior Secured Notes due 2012
PURCHASE
AGREEMENT
June 10, 2004
Lehman Brothers Inc.
Banc of America Securities LLC
Bear, Stearns & Co. Inc.
c/o Lehman Brothers Inc.
745 Seventh Avenue, Third Floor
New York, New York 10019
Dear Sirs:
US Unwired Inc., a Louisiana
corporation (the “ Company ”), proposes, upon
the terms and considerations set forth herein, to issue and sell to
Lehman Brothers Inc., Banc of America Securities LLC and Bear,
Stearns & Co. Inc. (collectively, the “ Initial
Purchasers ”), $360,000,000 aggregate principal amount of
Notes (as defined below) consisting of $125,000,000 aggregate
principal amount of First Priority Senior Secured Floating Rate
Notes due 2010 (the “ 2010 Notes ”) and
$235,000,000 aggregate principal amount of 10% Second Priority
Senior Secured Notes due 2012 (the “ 2012 Notes
” and together with the 2010 Notes, collectively referred to
as, the “ Notes ”). The Notes will have terms
and provisions which are summarized in the Offering Memorandum (as
defined below). The 2010 Notes are to be issued pursuant to an
indenture (the “ 2010 Indenture ”) to be dated
as of June 16, 2004 (the “ Closing Date ”),
among the Company, the Guarantors (as defined below) and U.S. Bank
National Association, as trustee (the “ 2010 Trustee
”). The 2012 Notes are to be issued pursuant to an indenture
(the “ 2012 Indenture ” and together with the
2010 Indenture, collectively referred to as the “
Indentures ”) to be dated as of the Closing Date,
among the Company, the Guarantors and U.S. Bank National
Association, as trustee (the “ 2012 Trustee ”
and together with the 2010 Trustee, collectively referred to as,
the “ Trustees ”). The Notes will be guaranteed
(the “ Subsidiary Guarantees ”) by each of the
entities listed on Schedule II, hereto (each, a
“ Guarantor ” and
collectively the “ Guarantors ”). The Notes and
the Subsidiary Guarantees are referred to collectively herein as
the “ Securities .”
The Company has commenced a tender
offer (together with any amendments and extensions thereof, the
“ Tender Offer ”) to purchase all of its
outstanding 13 3 / 8
% Senior Subordinated
Discount Notes Due 2009 (the “ 13
3
/
8
% Notes
”) and a related
solicitation of consents (together with any amendments and
extensions thereof, the “ Consent Solicitation
”) of the holders of the 13 3 / 8 % Notes to certain amendments to the
indenture (the “ 13 3
/
8
% Notes
Indenture ”) dated as of October 29,
1999 between the Company and U.S. Bank National Association,
successor in interest to State Street Bank and Trust Company, as
trustee.
The Company and the Guarantors have
agreed to secure the Notes and the Subsidiary Guarantees by
granting to U.S. Bank National Association, as the collateral agent
(the “ Collateral Agent ”), for the benefit of
the holders of the 2010 Notes, a first priority security interest
and, for the benefit of the holders of the 2012 Notes, a second
priority security interest in substantially all of the tangible and
intangible property, real property and fixtures of the Company and
the Guarantors, subject to certain exceptions, as described in the
Offering Memorandum (as defined below) under the caption
“Description of the Notes — Security for the
Notes” (the “ Collateral ”) and as
evidenced by a security agreement among the obligors party thereto
and the Collateral Agent to be dated as of the Closing Date (the
“ Security Agreement ”) and certain mortgages or
deeds of trust encumbering all of the real property set forth on
Annex A hereto, in each case, to be dated the Closing Date (the
“ Mortgages ” and, collectively with all
agreements, deeds of trust, instruments, documents, pledges or
filings executed in connection with granting, or that otherwise
evidence, a Lien on the Collateral, including the Security
Agreement, the “ Collateral Documents
”).
In connection with the Tender Offer
and Consent Solicitation, the Company has entered into a
Dealer-Manger Agreement dated as of May 12, 2004, between the
Company and Lehman Brothers (the “ Dealer-Manager
Agreement ”). In order to consummate the Tender Offer and
Consent Solicitation, the Company has prepared and distributed to
holders of the 13 3 / 8
% Notes an Offer to
Purchase and Consent Solicitation Statement dated as of May 12,
2004 (together with any other documents relating to the Tender
Offer or Consent Solicitation, collectively referred to as, the
“ Tender Offer and Consent Solicitation Materials
”). The amendments to the 13 3 / 8 % Notes Indenture will be effected
pursuant to a supplemental indenture (the “ Supplemental
Indenture ”) dated as of May 25, 2004, between the
Company and U.S. Bank National Association, as trustee.
This Agreement, the Indentures, the
Supplemental Indenture, the Notes, the Exchange Notes (as defined
below), the Subsidiary Guarantees, the Exchange Guarantees (as
defined below), the Collateral Documents, the Registration Rights
Agreement (as defined below), the Intercreditor Agreement (as
defined below) and the Dealer-Manager Agreement are referred to in
this Agreement collectively as, the “ Operative
Documents ”. All references herein to the Company’s
subsidiaries will include all direct and indirect subsidiaries of
the Company.
This is to confirm the agreement
concerning the purchase of the Notes from the Company by the
Initial Purchasers.
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1. Preliminary Offering
Memorandum and Offering Memorandum. The Notes will be offered
and sold to the Initial Purchasers without registration under the
Securities Act of 1933, as amended (the “ Act
”), in reliance on an exemption pursuant to Section 4(2)
under the Act. The Company has prepared a preliminary offering
memorandum, dated June 1, 2004 (together with all documents
incorporated by reference therein, the “ Preliminary
Offering Memorandum ”), and an offering memorandum, dated
June 10, 2004 (together with all documents incorporated by
reference therein, the “ Offering Memorandum ”),
setting forth information regarding the Company, the Guarantors,
the Notes, the Exchange Notes and the other Operative Documents.
The Company hereby confirms that it has authorized the use of the
Preliminary Offering Memorandum and the Offering Memorandum in
connection with the offering and resale of the Notes by the Initial
Purchasers.
It is understood and acknowledged
that upon original issuance thereof, and until such time as the
same is no longer required under the applicable requirements of the
Act, the Notes (and all securities issued in exchange therefor or
in substitution thereof) will bear the following legend (along with
such other legends as required by the Indentures):
“THE NOTES EVIDENCED HEREBY
HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933 (THE “ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE ACT PURCHASING FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN
OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE ACT, (3) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE), (4) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT,
(5) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT (BASED UPON AN OPINION OF COUNSEL IF THE
COMPANY SO REQUESTS) OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE
BLUE SKY LAWS OF THE STATES OF THE UNITED STATES.”
You have advised the Company and the
Guarantors that you will make offers (the “ Exempt
Resales ”) of the Notes purchased by you hereunder on the
terms set forth in the Offering Memorandum, as amended or
supplemented, solely to (i) persons whom you reasonably believe to
be “qualified institutional buyers” as defined in Rule
144A under the Act (“ QIBs ”) and (ii) outside
the United States to certain persons in offshore transactions in
reliance on Regulation S under the Act. Those persons specified in
clauses (i) and (ii) are referred to herein as the “
Eligible Purchasers ”. You will offer (i) the 2010
Notes to Eligible Purchasers initially at a price equal to 100% of
the principal amount thereof and (ii) the 2012 Notes to
Eligible
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Purchasers initially at a price equal to 99.326%
of the principal amount thereof. Such prices 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 in the form of Exhibit A
hereto (the “ Registration Rights Agreement ”),
among the Company, the Guarantors and the Initial Purchasers, to be
dated as of the Closing Date, 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 U.S.
Securities and Exchange Commission (the “ Commission
”) under the circumstances set forth therein (i) a
registration statement under the Act (the “ Exchange Offer
Registration Statement ”) relating to the Company’s
2010 Notes (the “ 2010 Exchange Notes ”) and
2012 Notes (the “ 2012 Exchange Notes ” and
together with the 2010 Exchange Notes, the “ Exchange
Notes ”), and the guarantees thereof (the “
Exchange Guarantees ” and together with the Exchange
Notes, the “ Exchange Securities ”) to be
offered in exchange for the 2010 Securities and 2012 Securities,
respectively (such offer to exchange being referred to as the
“ Exchange Offer ”) and (ii) a shelf
registration statement pursuant to Rule 415 under the Act (the
“ Shelf Registration Statement ” together with
the Exchange Offer Registration Statement, the “
Registration Statements ”) relating to the resale by
certain holders of the Notes and to use their reasonable best
efforts to cause such Registration Statements to be declared
effective.
2. Representations and Warranties
of the Company . The Company and the Guarantors, jointly and
severally, represent and warrant to, and agree with, the Initial
Purchasers that:
(a) The Preliminary Offering
Memorandum and the Offering Memorandum do not, and any supplement
or amendment to them will not, contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or 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
contained in this paragraph (a) shall not apply to statements in or
omissions from the Preliminary Offering Memorandum or the Offering
Memorandum (or any supplement or amendment thereto) based upon
information relating to the Initial Purchasers, including the fifth
and thirteenth paragraphs under the caption of the “Plan of
Distribution”, furnished to the Company in writing by the
Initial Purchasers expressly for use therein. No stop order
preventing the use of the Preliminary Offering Memorandum or the
Offering Memorandum, or any amendment or supplement thereto, or any
order asserting that any of the transactions contemplated by this
Agreement are subject to the registration requirements of the Act,
has been issued. The Company’s Annual Report on Form 10-K
most recently filed with the Commission and all subsequent reports
(collectively, the “ Exchange Act Reports ”)
which have been filed by the Company with the Commission or sent to
shareholders pursuant to the Securities Exchange Act of 1934 (the
“ Exchange Act ”) do not include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Such
documents conformed, when they were filed with the Commission, in
all material respects to the requirements of the Exchange Act and
the rules and regulations of the Commission thereunder.
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(b) Each of the Company and its
subsidiaries has been duly incorporated or formed, as the case may
be, is validly existing as a corporation, limited liability company
or partnership, as the case may be, in good standing under the laws
of its jurisdiction of incorporation or formation, as the case may
be, and has the corporate or other power and authority to carry on
its business as described in the Preliminary Offering Memorandum
and the Offering Memorandum and to own, lease and operate its
properties, and each is duly qualified and is in good standing as a
foreign corporation, limited liability company or partnership, as
the case may be, authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to
be in good standing or so qualified would not have a material
adverse effect on the business, financial condition or results of
operations of the Company and the Guarantors, taken as a whole (a
“ Material Adverse Effect ”).
(c) The entities listed on Schedule
III hereto are the only subsidiaries, direct or indirect, of the
Company. For purposes of this Agreement, a subsidiary of the
Company means any corporation, association or other business entity
of which the Company owns or controls, directly or indirectly, more
than 50% of the voting power with respect to the election of
directors, managers or trustees thereof, and any partnership of
which the Company or a subsidiary of the Company is the sole
general partner or the managing general partner or of which the
only general partners are the Company and one or more of its
subsidiaries. All of the outstanding shares of capital stock of, or
other ownership interests in, each of the Company’s
subsidiaries (i) have been duly authorized and are validly issued,
fully paid and non-assessable (in the case of any equity interest
in a corporation), (ii) constitute legal, valid and binding
obligation of such subsidiaries (in the case of any equity interest
in a partnership) and (iii) are duly issued and outstanding (in the
case of any equity interest in any other entity), and, except as
set forth in the Offering Memorandum, are owned by the Company,
directly or indirectly through one or more subsidiaries, free and
clear of any security interest, claim, lien, encumbrance or adverse
interest of any nature (each, a “ Lien
”).
(d) This Agreement has been duly
authorized, executed and delivered by the Company and each of the
Guarantors.
(e) Each of the Indentures and the
Supplemental Indenture has been duly authorized by the Company and
each of the Guarantors and, on the Closing Date, will have been
validly executed and delivered by the Company and each of the
Guarantors. When the Indentures and the Supplemental Indenture have
been duly executed and delivered by the Company and each of the
Guarantors, assuming due authorization, execution and delivery by
the Trustees, each Indenture and the 13 3/8% Notes Indenture as
supplemented by the Supplemental Indenture will be a valid and
binding agreement of the Company and each Guarantor, enforceable
against the Company and each Guarantor in accordance with its terms
except as the enforceability thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, or other
similar laws affecting creditors’ rights generally, (ii)
general principles of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity) and the
availability of equitable remedies or (iii) public policy
considerations as they relate to matters of indemnification or
contribution.
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(f) The Notes have been duly
authorized and, on the Closing Date, will have been validly
executed and delivered by the Company. When the Notes have been
issued, executed and authenticated in accordance with the
provisions of their respective Indentures and delivered to and paid
for by the Initial Purchasers in accordance with the terms of this
Agreement, the Notes will be entitled to the benefits of their
respective Indentures and will be valid and binding obligations of
the Company, enforceable against the Company in accordance with
their terms except as the enforceability thereof may be limited by
(i) bankruptcy, insolvency, reorganization, moratorium, or other
similar laws affecting creditors’ rights generally, (ii)
general principles of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity) and the
availability of equitable remedies or (iii) public policy
considerations as they relate to matters of indemnification or
contribution. On the Closing Date, the Notes will conform in all
material respects as to legal matters to the description thereof
contained in the Offering Memorandum.
(g) On the Closing Date, the
Exchange Notes will have been duly authorized by the Company and,
when issued, will have been duly executed and delivered by the
Company. When the Exchange Notes are issued, executed and
authenticated in accordance with the terms of the Exchange Offer
and their respective Indentures, the Exchange Notes will be
entitled to the benefits of their respective Indentures and will be
the valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the
enforceability thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, or other similar laws
affecting creditors’ rights generally, (ii) general
principles of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity) and the
availability of equitable remedies or (iii) public policy
considerations as they relate to matters of indemnification or
contribution.
(h) The Subsidiary Guarantee to be
endorsed on the Notes by each Guarantor has been duly authorized by
such Guarantor and, on the Closing Date, will have been duly
executed and delivered by each such Guarantor. When the Notes have
been issued, executed and authenticated in accordance with their
respective Indentures and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, the
Subsidiary Guarantee of each Guarantor endorsed thereon will be
entitled to the benefits of the respective Indenture and will be
the valid and binding obligation of such Guarantor, enforceable
against such Guarantor in accordance with its terms, except as the
enforceability thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, or other similar laws
affecting creditors’ rights generally, (ii) general
principles of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity) and the
availability of equitable remedies or (iii) public policy
considerations as they relate to matters of indemnification or
contribution. On the Closing Date, the Subsidiary Guarantees to be
endorsed on the Notes will conform in all material respects as to
legal matters to the description thereof contained in the Offering
Memorandum.
(i) The Subsidiary Guarantee to be
endorsed on the Exchange Notes by each Guarantor has been duly
authorized by such Guarantor and, when issued, will have been duly
executed and delivered by each such Guarantor. When the Exchange
Notes have been issued, executed and authenticated in accordance
with the terms of the Exchange Offer and their respective
Indentures, the Subsidiary Guarantee of each Guarantor endorsed
thereon will be
6
entitled to the benefits of the
respective Indenture and will be the valid and binding obligation
of such Guarantor, enforceable against such Guarantor in accordance
with its terms, except as the enforceability thereof may be limited
by (i) bankruptcy, insolvency, reorganization, moratorium, or other
similar laws affecting creditors’ rights generally, (ii)
general principles of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity) and the
availability of equitable remedies or (iii) public policy
considerations as they relate to matters of indemnification or
contribution. When the Exchange Notes are issued, authenticated and
delivered, the Subsidiary Guarantees to be endorsed on the Exchange
Notes will conform in all material respects as to legal matters to
the description thereof in the Offering Memorandum.
(j) The Registration Rights
Agreement has been duly authorized by the Company and each of the
Guarantors and, on the Closing Date, will have been duly executed
and delivered by the Company and each of the Guarantors. When the
Registration Rights Agreement has been duly executed and delivered,
assuming due authorization by the other parties thereto, the
Registration Rights Agreement will be a valid and binding agreement
of the Company and each of the Guarantors, enforceable against the
Company and each Guarantor in accordance with its terms except as
the enforceability thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, or other similar laws
affecting creditors’ rights generally, (ii) general
principles of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity) and the
availability of equitable remedies or (iii) public policy
considerations as they relate to matters of indemnification or
contribution. On the Closing Date, the Registration Rights
Agreement will conform in all material respects as to legal matters
to the description thereof in the Offering Memorandum.
(k) The Intercreditor Agreement
among the Company, the Guarantors, the Trustees and the Collateral
Agent, to be dated as of the Closing Date (the “
Intercreditor Agreement ”), has been duly authorized
by the Company and each of the Guarantors and, on the Closing Date,
will have been duly executed and delivered by the Company and each
of the Guarantors. When the Intercreditor Agreement has been duly
executed and delivered, assuming due authorization by the Trustees
and the Collateral Agent, the Intercreditor Agreement will be a
valid and binding agreement of the Company and each of the
Guarantors, enforceable against the Company and each Guarantor in
accordance with its terms except as the enforceability thereof may
be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, or other similar laws affecting creditors’ rights
generally, (ii) general principles of equity (regardless of whether
enforcement is considered in a proceeding at law or in equity) and
the availability of equitable remedies or (iii) public policy
considerations as they relate to matters of indemnification or
contribution. On the Closing Date, the Intercreditor Agreement will
conform in all material respects as to legal matters to the
description thereof in the Offering Memorandum.
(l) The Collateral Documents have
been duly authorized by the Company and the Guarantors and, on the
Closing Date, the Security Agreement and the Mortgages will have
been duly executed and delivered by the Company and the Guarantors.
When the Collateral Documents have been duly executed and
delivered, the Collateral Documents will be valid and binding
agreements of the Company and the Guarantors, enforceable against
the Company and Guarantors in accordance with their terms except as
the enforceability thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, or other similar laws
affecting creditors’
7
rights generally, (ii) general
principles of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity) and the
availability of equitable remedies or (iii) public policy
considerations as they relate to matters of indemnification or
contribution. On the Closing Date, the Security Agreement and the
Mortgages will conform in all material respects as to legal matters
to the description thereof in the Offering Memorandum.
(m) Neither the Company nor any of
its subsidiaries is (i) in violation of its respective charter,
by-laws, operating agreement or partnership agreement or (ii) 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, except to the extent such violation or default is described
in the Offering Memorandum or would not have, individually or in
the aggregate, a Material Adverse Effect.
(n) The execution, delivery and
performance of this Agreement and the other Operative Documents by
the Company and each of the Guarantors, the compliance by the
Company and each of the Guarantors with all provisions hereof and
thereof and the consummation of the transactions contemplated
hereby and thereby will not (i) require any consent, approval,
authorization or other order of, or qualification with, any court
or governmental body or agency (except such as may be required
under the securities or Blue Sky laws of the various states and
such as are contemplated by the Registration Rights Agreement or
that have been obtained or will be obtained and made on or prior to
the Closing Date), (ii) conflict with or constitute a breach of any
of the terms or provisions of, or a default under, the respective
charter, by-laws, operating agreement or partnership agreement of
the Company or any of its subsidiaries or 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, (iii) violate or conflict with any applicable law or any
rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Company,
any of its subsidiaries or their respective property, (iv) result
in the imposition or creation of (or the obligation to create or
impose) a Lien under, any agreement or instrument 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, except pursuant to or as contemplated by the terms of the
Indentures and the Collateral Documents, or (v) result in the
termination, suspension or revocation of any Authorization (as
defined below) of the Company or any of its subsidiaries or result
in any other impairment of the rights of the holder of any such
Authorization, except, in all such cases, to the extent as would
not have, individually or in the aggregate, a Material Adverse
Effect.
(o) Except as disclosed in the
Offering Memorandum, there are no legal or governmental proceedings
pending or, to the knowledge of the Company, threatened against the
Company or any of the Guarantors or any of their respective
property, which could reasonably be expected to result, singly or
in the aggregate, in a Material Adverse Effect or could reasonably
be expected to materially and adversely affect the ability of the
Company or any of the Guarantors to perform its obligations under
any of the Operative Documents.
8
(p) Neither the Company nor any of
the Guarantors has violated any foreign, federal, state or local
law or regulation relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (“ Environmental Laws
”), any provisions of the Employee Retirement Income Security
Act of 1974, as amended (“ ERISA ”), or any
provisions of the Foreign Corrupt Practices Act or the rules and
regulations promulgated thereunder, except for such violations
which, singly or in the aggregate, would not have a Material
Adverse Effect.
(q) There are no costs or
liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental
Laws or any Authorization, any related constraints on operating
activities and any potential liabilities to third parties) which
would, singly or in the aggregate, have a Material Adverse
Effect.
(r) Except as disclosed in the
Offering Memorandum, each of the Company and the Guarantors has
such permits, licenses, consents, exemptions, franchises,
authorizations and other approvals (each, subject to the exception
set forth in this sentence, an “ Authorization
”) of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including without
limitation, under any applicable Environmental Laws, as are
necessary to own, lease, license and operate its respective
properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice
would not, singly or in the aggregate, have a Material Adverse
Effect. Each such Authorization is valid and in full force and
effect and each of the Company and the Guarantors is in compliance
with all the terms and conditions thereof and with the rules and
regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred
(including, without limitation, the receipt of any notice from any
authority or governing body) which allows or, after notice or lapse
of time or both, would allow, revocation, suspension or termination
of any such Authorization or results or, after notice or lapse of
time or both, would result in any other impairment of the rights of
the holder of any such Authorization; and such Authorizations
contain no restrictions that are burdensome to the Company or any
of the Guarantors; except where such failure to be valid and in
full force and effect or to be in compliance, the occurrence of any
such event or the presence of any such restriction would not,
singly or in the aggregate, have a Material Adverse
Effect.
(s) The historical financial
statements, together with related schedules and notes forming part
of the Offering Memorandum (and any amendment or supplement
thereto), present fairly, in all material respects, the
consolidated financial position, results of operations and changes
in financial position of the Company and its subsidiaries on the
basis stated in the Offering Memorandum, or such amendment or
supplement thereto, at the respective dates or for the respective
periods to which they apply; such financial statements and related
schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the
periods involved, except as disclosed therein; and the other
financial and statistical information and data set forth in the
Offering Memorandum (and any amendment or supplement thereto) are,
in all material respects, accurately presented and, except as
otherwise disclosed in the Offering Memorandum, prepared on a basis
consistent with such financial statements and the books and records
of the Company. The financial information
9
included in the Offering Memorandum
with respect to the Company and the Guarantors on a consolidated
basis excluding IWO Holdings, Inc. (“ IWO ”) and
its subsidiaries (the Company and its subsidiaries, excluding IWO
and its subsidiaries, being herein referred to as the “
Issuer Credit Entities ”) presents fairly, in all
material respects, the consolidated financial position, results of
operations and changes in financial position of the Issuer Credit
Entities and is, except as otherwise disclosed in the Offering
Memorandum, prepared on a basis consistent with such financial
statements and the books and records of the Company.
(t) Assuming the accuracy of the
Initial Purchasers’ representations set forth in Section 3,
the offer and sale of the Securities by the Company to the Initial
Purchasers in the manner contemplated by this Agreement will be
exempt from the registration requirements of the Act by reason of
Section 4(2) thereof and Regulation S; and it is not necessary to
qualify an indenture in respect of the Securities under the Trust
Indenture Act of 1939, as amended (the “ TIA ”),
except as may be necessary for the Company’s compliance with
the Registration Rights Agreement.
(u) The Company is not and, after
giving effect to the offering and sale of the Securities and the
application of the net proceeds thereof as described in the
Offering Memorandum, will not be, an “investment
company,” as such term is defined in the Investment Company
Act of 1940, as amended.
(v) None of the execution, delivery
and performance of this Agreement, the issuance and sale of the
Securities, the application of proceeds from the issuance or sale
of the Securities and the consummation of the transactions
contemplated thereby, as set forth in the Offering Memorandum, will
violate Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R.
Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of
Governors of the Federal Reserve System.
(w) No “nationally recognized
statistical rating organization” as such term is defined for
purposes of Rule 436(g)(2) under the 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, or 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 review for a possible change that
does not indicate the direction of the possible change in, any
rating so assigned, or (b) any negative change in the outlook for
any rating of the Company, any Guarantor or any securities of the
Company or any Guarantor.
(x) Since the respective dates as of
which information is given in the Offering Memorandum, other than
as set forth in the Offering Memorandum (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), (i) there has not occurred any material adverse change
in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and the
Guarantors, taken as a whole, (ii) there has not been any material
adverse change in the capital stock or in the long-term debt of the
Company or any of the Guarantors and (iii) neither the Company nor
any of the Guarantors has incurred any material liability or
obligation, direct or contingent, not in the ordinary course of
business.
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(y) No form of general solicitation
or general advertising (as defined in Regulation D under the Act)
was used by the Company, the Guarantors or any of their respective
representatives (other than the Initial Purchasers, as to whom the
Company and the Guarantors make no representation) in connection
with the offer and sale of the Securities contemplated
hereby.
(z) None of the Company, the
Guarantors nor any of their respective affiliates or any person
acting on its or their behalf (other than the Initial Purchasers,
as to whom the Company and the Guarantors make no representation)
has engaged or will engage in any directed selling efforts within
the meaning of Regulation S under the Act (“ Regulation
S ”) with respect to the Notes or the Subsidiary
Guarantees.
(aa) None of the Company, the
Guarantors nor any of their respective affiliates or any person
acting on its or their behalf (other than the Initial Purchasers,
as to whom the Company and the Guarantors make no representation)
has taken or will take any action to cause the offering or sale of
the Securities to violate any provision of Regulation S.
(bb) The sale of the Securities
pursuant to Regulation S is not part of a plan or scheme to evade
the registration provisions of the Act.
(cc) The Company and each of the
Guarantors, and their respective affiliates and all persons acting
on their behalf (other than the Initial Purchasers, as to whom the
Company and the Guarantors make no representation), have complied
with and will comply with the offering restrictions requirements of
Rule 902(g)(2) of Regulation S in connection with the offering of
the Securities outside the United States.
(dd) The Securities sold in reliance
on Regulation S will be represented upon issuance by a temporary
global security that may not be exchanged for definitive securities
until the expiration of the 40-day distribution compliance period
referred to in Rule 903(c)(3) of the Act and only upon
certification of beneficial ownership of such Securities by
non-U.S. persons or U.S. Persons who purchased such Securities in
transactions that were exempt from the registration requirements of
the Act.
(ee) Except as disclosed in the
Offering Memorandum, the Company and the Guarantors have good and
marketable title to all real property and good and marketable title
to all personal property owned by them which is material to the
business of the Company and the Guarantors, in each case free and
clear of all Liens, except such Liens imposed by the Collateral
Documents or as are described in the Offering Memorandum, in each
case, to the extent such Liens (other than those under the
Collateral Documents), individually or in the aggregate, would not
result in a Material Adverse Effect; and any real property and
buildings held under lease by the Company and the Guarantors are
held by them under valid, subsisting and enforceable leases,
except, in each case, such leases, individually or in the
aggregate, as to which the failure to be valid, subsisting and
enforceable would not result in a Material Adverse Effect or as
described in the Offering Memorandum.
(ff) The Company and the Guarantors
directly or through one or more subsidiaries own or possess, have
the right to use in their markets, or can acquire on
reasonable
11
terms, all material patents, patent
rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks,
service marks and trade names (“intellectual property”)
necessary to conduct their business except where the failure to own
or possess, have the right to use, or otherwise be able to acquire
such intellectual property would not, singly or in the aggregate,
have a Material Adverse Effect; and neither the Company nor any of
the Guarantors has received any notice of infringement of or
conflict with asserted rights of others with respect to any of such
intellectual property which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect.
(gg) The Company and each of the
Guarantors are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are
engaged; and neither the Company nor any of the Guarantors (i) has
received notice from any insurer or agent of such insurer that
substantial capital improvements or other material expenditures
will have to be made in order to continue such insurance or (ii)
has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers at a cost that would
not have a Material Adverse Effect.
(hh) Except as disclosed in the
Offering Memorandum, no relationship, direct or indirect, exists
between or among the Company or any of its subsidiaries on the one
hand, and the directors, officers, stockholders, other affiliates,
customers or suppliers of the Company or any of its subsidiaries on
the other hand, which would be required by the Act to be described
in the Offering Memorandum if the Offering Memorandum were a
prospectus included in a registration statement on Form S-1 filed
with the Commission. Except as disclosed in the Offering
Memorandum, no relationship exists between or among the Issuer
Credit Entities, on the one hand, and IWO or IWO’s directors,
on the other hand, which would be required by the Act to be
described in the Offering Memorandum if the Offering Memorandum
were a prospectus included in a registration statement on Form S-1
filed with the Commission.
(ii) There is no (i) significant
unfair labor practice complaint, grievance or arbitration
proceeding pending or, to the best knowledge of the Company,
threatened against the Company or any of the Guarantors before the
National Labor Relations Board or any state or local labor
relations board or (ii) strike, labor dispute, slowdown or stoppage
pending or, to the best knowledge of the Company, threatened
against the Company or any of the Guarantors.
(jj) The Company and each of the
Guarantors maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted
only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(kk) All United States federal tax
returns required by law to be filed by the Company and each of its
subsidiaries in any jurisdiction have been filed and all material
taxes,
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including withholding taxes,
penalties and interest, assessments, fees and other charges due
pursuant to such returns or pursuant to any assessment received by
the Company or any of its subsidiaries have been paid, other than
those being contested or which will be contested in good faith and
for which adequate reserve have been provided, except insofar as
the failure to file such returns, individually or in the aggregate,
would not have a Material Adverse Effect.
(ll) Each of the Company and the
Guarantors validly holds or is entitled to use all Federal
Communication Commission (“ FCC ”) licenses (the
“ PCS Licenses ”) necessary for the operation of
its personal communication services (“ PCS ”).
The PCS Licenses held by the Company are, and the Company believes
that those held by Sprint Spectrum L.P. and SprintCom, Inc. (the
“ Sprint PCS Licenses ”) are, in full force and
effect and are not subject to any conditions other than those
conditions listed thereon and those conditions generally applicable
to entities holding similar licenses issued by the FCC. The PCS
Licenses, together with the Sprint PCS Licenses, constitute all of
the licenses, permits, consents or authorizations required by the
FCC to permit operation of the PCS operations of the Company and
the Guarantors. The PCS Licenses, which initially expire on April
28, 2007, are subject to ten-year renewal terms. The Company has
met the FCC’s five-year build-out requirement for the PCS
licenses. All applicable administrative and judicial appeal, review
and reconsideration periods of the orders granting the PCS Licenses
and the Sprint PCS Licenses have expired, without the timely filing
of any such appeal or request for review or reconsideration and
without the FCC having instituted review of the grant of the PCS
Licenses or the Sprint PCS Licenses on its own motion.
(mm) The Company validly holds the
FCC licenses necessary for the operation of its microwave radio
systems (the “ Microwave Licenses ”) used in
conjunction with its PCS system and for its paging system (the
“ Paging Licenses ”), as described in the
Offering Memorandum. The Microwave Licenses and the Paging Licenses
are in full force and effect and are not subject to any conditions
other than those conditions listed thereon and those conditions
generally applicable to entities holding similar licenses issued by
the FCC. The Microwave Licenses and the Paging Licenses constitute
all of the licenses, permits, consents or authorizations required
by the FCC to permit operation of the Company’s microwave
radio system and paging system, respectively, as identified in the
Offering Memorandum. All applicable administrative and judicial
appeal, review and reconsideration periods of the orders granting
the Microwave Licenses have expired, without the timely filing of
any such appeal or request for review or reconsideration and
without the FCC having instituted review of the grant of the
Microwave Licenses on its own motion.
(nn) There are no judgments, decrees
or orders issued by the FCC that could result in suspension,
revocation, material impairment, termination prior to its
expiration date, non-renewal or adverse modification of the PCS
Licenses, the Microwave Licenses or the Paging Licenses, or that
could have a material adverse effect upon, or cause material
disruption to, the PCS operations pursuant to the PCS Licenses and
the Microwave Licenses or the paging system operations pursuant to
the Paging Licenses. To the best of the Company’s knowledge,
there is no complaint, investigation, action or proceeding pending
or threatened relative to the PCS Licenses relating to the PCS
operations, the Microwave Licenses relating to the cellular
operations or the Paging Licenses relating to the paging system
operations, including, without limitation, any
13
Notice of Violation, Notice of
Apparent Liability or Order to Show Cause, other than proceedings
that affect the PCS industry, the cellular telephone industry or
the paging industry generally, that could result in a suspension,
revocation, material impairment, termination prior to its
expiration date, non-renewal or adverse modification of the PCS
Licenses, the Microwave Licenses or the Paging Licenses or which
could have a Material Adverse Effect upon, or cause material
disruption to, the Company’s PCS, cellular or paging
operations.
(oo) All fees required by the FCC in
connection with the PCS Licenses, including any and all down
payments or installment payments required by FCC rules to be paid
as of the date hereof have been timely and fully paid.
(pp) LA Unwired was qualified to
participate in the FCC’s PCS license auctions as a
“Designated Entity,” as defined by FCC Rules, and is
qualified to hold the licenses for LA Unwired’s PCS
operations according to the Designated Entity rules of the FCC. The
Company’s investment in LA Unwired does not violate the
ownership rules of the FCC.
(qq) The provisions of the
Collateral Documents are effective to create, in favor of the
Collateral Agent, legal, valid and enforceable first and second
priority Liens on or in all of the Collateral intended to be
covered thereby, and all necessary recordings and filings will have
been made in all necessary public offices and all other necessary
and appropriate action will have been taken so that the Liens
created by the Collateral Documents will constitute perfected Liens
on or in the Collateral intended to be covered thereby, with the
priorities described in the Offering Memorandum, and all necessary
consents to the creation, effectiveness, priority and perfection of
each such Lien will have been obtained, except to the extent that
the failure to obtain such consent would not have, individually or
in the aggregate, a Material Adverse Effect.
(rr) The Collateral Documents that
constitute mortgages or deeds of trust on real property, and the
fixture filings, when executed and delivered by the Company and
each of the Guarantors party thereto on or prior to the Closing
Date, will create, in favor of the Collateral Agent for the benefit
of the Secured Parties, including each Trustee on behalf of the
respective holders of the Notes, (i) valid and enforceable mortgage
liens on such real property and (ii) perfected security interests
in such fixtures or other personal property superior to and prior
to the Liens of all third persons subject only to the Permitted
Liens (as defined in the Indentures). Each of the Company and the
Guarantors, as applicable, is the sole beneficial owner of the
Collateral in which it will grant a Lien (including a mortgage
Lien) pursuant to the Collateral Documents and no Lien will exist
upon such Collateral, except for Liens to be permitted under the
Indentures. Upon the filing of the financing statements and the
other acts contemplated by the Collateral Documents, each Lien
(including mortgage Liens) created pursuant to the Collateral
Documents will constitute a perfected security interest of the
ranking set forth in the Offering Memorandum in the Collateral in
which the Company or any Guarantor, as applicable, will grant a
Lien pursuant to the Collateral Documents.
The Company and the Guarantors each
acknowledge that the Initial Purchasers and, for purposes of the
opinions to be delivered to the Initial Purchasers pursuant to
Section 7 hereof, counsel to the Company and the Guarantors and
counsel to the Initial Purchasers will rely upon the accuracy and
truth of the foregoing representations and hereby consents to such
reliance.
14
3. Purchase of the Notes by the
Initial Purchasers; Agreements to Sell, Purchase and Resell.
(a) The Company hereby agrees, on the basis of the representations,
warranties and agreements of the Initial Purchasers contained
herein and subject to all the terms and conditions set forth
herein, to issue and sell to the Initial Purchasers and, upon the
basis of the representations, warranties and agreements of the
Company and the Guarantors herein contained and subject to all the
terms and conditions set forth herein, each Initial Purchaser
agrees, severally and not jointly, to purchase from the Company,
(i) at a purchase price of 97.375% of the principal amount thereof,
the principal amount of the 2010 Notes set forth opposite the name
of such Initial Purchaser in Schedule I hereto and (ii) at a
purchase price of 96.701% of the principal amount thereof, the
principal amount of the 2012 Notes set forth opposite the name of
such Initial Purchaser in Schedule I hereto. The Company will not
be obligated to deliver any of the Securities to be delivered
hereunder except upon payment for all of the Securities to be
purchased as provided herein.
(b) Each of the Initial Purchasers,
severally and not jointly, hereby represents and warrants to the
Company and the Guarantors that it will offer the Securities for
sale upon the terms and conditions set forth in this Agreement and
in the Offering Memorandum. Each of the Initial Purchasers,
severally and not jointly, hereby represents and warrants to, and
agrees with, the Company and the Guarantors that such Initial
Purchaser:
(i) is a QIB with such knowledge and
experience in financial and business matters as are necessary in
order to evaluate the merits and risks of an investment in the
Securities;
(ii) is purchasing the Securities
pursuant to a private sale exempt from registration under the
Act;
(iii) will offer and sell the
Securities only to (a) persons whom it reasonably believes are QIBs
or, if any such person is buying for one or more institutional
accounts for which such person is acting as fiduciary or agent,
only when such person has represented to such Initial Purchaser
that each such account is a QIB to whom such notice has been given
that such sale or delivery is being made in reliance on Rule 144A,
in each case in transactions meeting the requirements of Rule 144A;
or (b) persons whom it reasonably believes, at the time any buy
order for Securities was or is originated, were or are outside the
United States and were or are not U.S. persons (and were or are not
purchasing for the account or benefit of a U.S. person) within the
meaning of Regulation S (“ U.S. Persons ”).
Notwithstanding the foregoing, following the sale of the Securities
by such Initial Purchaser to subsequent purchasers in accordance
with the provisions of this Agreement and the Offering Memorandum,
the Initial Purchaser shall not be liable or responsible to the
Company or the Guarantors for any losses, damages or liabilities
suffered or incurred by the Company or the Guarantors, including
any losses, damages, or liabilities under the Securities Act,
arising from or relating to any resale or transfer of any
Securities by any subsequent purchaser;
(iv) in connection with the Exempt
Resales, will solicit offers to buy the Securities only from, and
will offer to sell the Securities only to, Eligible Purchasers
in
15
accordance with this Agreement and
on the terms contemplated by the Offering Memorandum;
(v) will not offer or sell the
Securities, nor has it offered or sold the Securities by, or
otherwise engaged in, any form of general solicitation or general
advertising (within the meaning of Regulation D, including, but not
limited to, advertisements, 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) and, with respect to
Securities sold outside the United States to non-U.S. purchasers in
reliance on Regulation S under the Act, will not engage in any
directed selling efforts, within the meaning of Rule 902 under the
Act in connection with the offering of the Securities;
and
(vi) with respect to any offer or
sale made by such Initial Purchaser in reliance on Regulation S,
neither the Initial Purchaser nor any of its Affiliates nor any
employees or representatives acting on its behalf has engaged or
will engage in any directed selling efforts with respect to the
Securities, and that any advertisement
