Exhibit 10.8
EXECUTION COPY
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IWO ESCROW COMPANY
$290,000,000
$150,000,000 SENIOR SECURED FLOATING RATE NOTES DUE 2012
$140,000,000 PRINCIPAL AMOUNT AT
MATURITY 10.75% SENIOR DISCOUNT NOTES DUE 2015
PURCHASE AGREEMENT
DECEMBER 14, 2004
BEAR, STEARNS & CO. INC.
LEHMAN BROTHERS INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
_____________________________________
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IWO ESCROW COMPANY
$290,000,000
$150,000,000 SENIOR SECURED FLOATING RATE NOTES DUE 2012
$140,000,000 PRINCIPAL AMOUNT AT
MATURITY 10.75% SENIOR DISCOUNT NOTES DUE 2015
PURCHASE AGREEMENT
December 14, 2004
New York, New York
BEAR, STEARNS & CO. INC.
LEHMAN BROTHERS INC.
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
c/o Bear, Stearns & Co. Inc.
383 Madison Avenue
New York, New York 10179
Ladies & Gentlemen:
IWO Escrow Company, a Delaware corporation (the "COMPANY"),
proposes to
issue and sell to Bear, Stearns & Co.
Inc. ("BEAR STEARNS"), Lehman Brothers
Inc. and Merrill Lynch, Pierce, Fenner
& Smith Incorporated (each, an "INITIAL
PURCHASER" and, collectively, the "INITIAL
PURCHASERS") $150,000,000 in
aggregate principal amount of Senior
Secured Floating Rate notes due 2012 (the
"SENIOR SECURED NOTES") and $140,000,000
principal amount at maturity of its
10.75% Senior Discount Notes due 2015 (the
"SENIOR DISCOUNT NOTES" and, together
with the Senior Secured Notes, the
"Notes"), subject to the terms and conditions
set forth herein. The Senior Secured Notes
will be issued pursuant to an
indenture (the "SENIOR SECURED NOTES
INDENTURE") and the Senior Discount Notes
will be issued pursuant to an indenture
(the "SENIOR DISCOUNT NOTES INDENTURE,"
together with the Senior Secured Notes
Indenture, the "INDENTURES"), in each
case to be dated January 6, 2005, in each
case among the Company and U.S. Bank
National Association, as trustee (the
"TRUSTEE").
The issuance and sale of the Notes pursuant to this Agreement is
part
of a series of transactions designed to
reorganize the ownership and capital
structure of IWO Holdings, Inc., a Delaware
corporation ("HOLDINGS"). Such
transactions, including the Pre-Packaged
Plan and the Merger (as defined
herein), are referred to herein as the
"REORGANIZATION." As part of the
Reorganization, the Company has prepared an
Offering Memorandum and Holdings has
prepared the Disclosure Statement dated
December 1, 2004, and related Plan of
Reorganization and Ballot, pursuant to
which Holdings commenced a solicitation
of votes for a pre-packaged bankruptcy plan
of reorganization under Chapter 11
of the U.S. Bankruptcy Code (the
"PRE-PACKAGED PLAN").
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As part of the consummation of the Reorganization, the Company
will
merge with and into Holdings after which
Holdings will be the surviving entity
(the "MERGER"). Upon consummation of the
Merger, Holdings will succeed to the
obligations of the Company hereunder and
under the Indentures, the Notes and the
Registration Rights Agreement (as
hereinafter defined), and will execute a
supplemental indenture to each Indenture or
an assumption agreement to the
Indentures and the Registration Rights
Agreement in connection therewith. In
addition, upon consummation of the Merger,
the Notes will become fully and
unconditionally guaranteed (the
"GUARANTEES") as to payment of principal,
interest, premium and liquidated damages,
if any, on a senior secured basis in
the case of the Senior Secured Notes and on
a senior unsecured basis in the case
of the Senior Discount Notes, jointly and
severally by all of the subsidiaries
of Holdings listed on Schedule I hereto
(collectively, the "GUARANTORS").
Prior to the Closing Date, Holdings will deposit funds into an
escrow
account (the "ESCROW ACCOUNT") in an amount
(the "PRE-FUNDED AMOUNT") at least
equal to (i) the amount of interest that
would accrue on the Senior Secured
Notes from the Closing Date to (but not
including) the latest day on which,
pursuant to the terms of the Escrow and
Security Agreement (as defined below),
the Senior Secured Notes could be redeemed,
plus (ii) the amount by which the
Senior Discount Notes would accrete from
the Closing Date to (but not including)
the latest day on which, pursuant to the
terms of the Escrow and Security
Agreement, the Senior Discount Notes could
be redeemed, plus (iii) an amount
equal to the fees and expenses payable to
the Escrow Agent, the Trustee and the
Collateral Trustee through the period
ending on the latest date on which,
pursuant to the terms of the Escrow and
Security Agreement, the Notes could be
redeemed. On the Closing Date, an
additional $232,720,400, representing the
gross proceeds from the sale of the Notes,
will be deposited into the Escrow
Account by the Company (such amount the
"OFFERING PROCEEDS" and the aggregate
amount in the Escrow Account being referred
to as the "ESCROWED FUNDS"). The
Escrow Account will be governed by an
agreement between the Company and U.S.
Bank National Association, as escrow agent
(the "ESCROW AGENT"), to be dated the
Closing Date (the "ESCROW AND SECURITY
AGREEMENT"). Pending release of the funds
in the Escrow Account (a) to Holdings upon
consummation of the Merger or (b) to
the trustee in the event of a Special
Mandatory Redemption (as defined in the
Offering Memorandum), the Notes will be
secured by a security interest in the
Escrowed Funds and a security interest in
all the assets of the Company.
1. Issuance of Notes. The Company proposes, upon the terms and
subject
to the conditions set forth herein, to
issue and sell to the Initial Purchasers
an aggregate of $150,000,000 in principal
amount of Senior Secured Notes and an
aggregate of $140,000,000 in principal
amount at maturity of Senior Discount
Notes. 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 Securities Act of 1933,
as amended (the "Securities Act"),
the Notes (and all securities issued in
exchange therefor or in substitution
thereof, other than the New Notes (as
defined below)) shall bear the following
legend:
"THE
SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED
IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE
UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE
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EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED
HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION
FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A
THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR
THE
BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE OFFERED,
RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) (a) IN THE UNITED STATES
TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (b) OUTSIDE THE UNITED
STATES IN
AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES
ACT,
(c) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE
SECURITIES ACT, OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON
AN
OPINION OF COUNSEL IF THE ISSUER SO REQUESTS), (2) TO THE ISSUER OR
(3)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE,
IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER
WILL, AND
EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT
OF
THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN
(A)
ABOVE."
2. Offering. The Notes will be offered and sold (the "OFFERING") to
the
Initial Purchasers pursuant to an exemption
from the registration requirements
under the Securities Act. The Company
prepared a preliminary offering
memorandum, dated December 6, 2004, (the
"PRELIMINARY OFFERING MEMORANDUM") and
a final offering memorandum, dated December
14, 2004 (the "OFFERING
MEMORANDUM"), relating to the Company,
Holdings, the Offering and the Notes.
The Initial Purchasers have advised the Company that the
Initial
Purchasers will make offers (the "EXEMPT
RESALES") of the Notes on the terms set
forth in the Offering Memorandum, as
amended or supplemented, solely to persons
whom the Initial Purchasers reasonably
believe to be (a) "qualified
institutional buyers," as defined in Rule
144A under the Securities Act ("QIBS")
or (b) non-US persons, as defined in
Regulation S promulgated under the
Securities Act ("REGULATION S"), ("NON-US
PERSONS") outside the United States to
whom the Initial Purchasers reasonably
believe offers and sales of the Notes may
be made in reliance upon, and in accordance
with Regulation S, such persons to
also be referred to herein as the "ELIGIBLE
PURCHASERS."
Holders (including subsequent transferees) of the Notes will have
the
registration rights set forth in the
registration rights agreement relating
thereto (the "REGISTRATION RIGHTS
AGREEMENT"), to be dated 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
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Agreement, the Company will agree to file
with the Securities and Exchange
Commission (the "COMMISSION"), under the
circumstances set forth therein (i) a
registration statement under the Securities
Act (the "EXCHANGE OFFER
REGISTRATION STATEMENT") relating to the
Company's new Senior Secured Floating
Rate Notes due 2012 (the "NEW SENIOR
SECURED NOTES") and new 10.75% Senior
Discount Notes due 2015 (the "NEW SENIOR
DISCOUNT NOTES" and, together with the
New Senior Secured Notes, the "NEW NOTES")
in a like aggregate principal amount
as the Company issued under the Indentures
and a guarantee thereof by the
Guarantors (the "EXCHANGE GUARANTEE"),
identical in all material respects to the
Notes and the Guarantees and registered
under the Securities Act to be offered
in exchange for the Notes (such offer to
exchange being referred to as the
"EXCHANGE OFFER") and the Guarantees
thereof and (ii) a shelf registration
statement pursuant to Rule 415 under the
Securities Act (the "SHELF REGISTRATION
STATEMENT" and, together with the Exchange
Offer Registration Statement, the
"REGISTRATION STATEMENTS") relating to the
resale by certain holders of the
Notes, and to use their best efforts to
cause such Registration Statements to be
declared effective and to consummate the
Exchange Offer.
This Agreement, the Notes, the Indentures, the Registration
Rights
Agreement, the Escrow and Security
Agreement, the Security Agreement and the
Pledge Agreement and are hereinafter
referred to collectively as the "OPERATIVE
DOCUMENTS."
3. Purchase, Sale and Delivery.
(a) On the basis of the representations, warranties and
covenants
contained in this Agreement, and subject to
its terms and conditions: (i) the
Company agrees to issue and sell to the
Initial Purchasers, and each Initial
Purchaser agrees, severally and not
jointly, to purchase from the Company, the
respective principal amounts of Senior
Secured Notes and Senior Discount Notes
set forth opposite the name of such Initial
Purchaser on Exhibit A. The purchase
price for the Senior Secured Notes will be
$1,000 per $1,000 principal amount
Senior Secured Note. The purchase price for
the Senior Discount Notes will be
$590.86 per $1,000 principal amount at
maturity Senior Discount Note. Upon
consummation of the Reorganization and
release of the Escrowed Funds, the
Company agrees to pay to each Initial
Purchaser $30.00 per $1,000 principal
amount Senior Secured Note and $17.7258 per
$1,000 principal amount at maturity
Senior Discount Note purchased by such
Initial Purchaser hereunder, which amount
will be paid subject to, and in accordance
with, the terms of the Escrow and
Security Agreement.
(b) On the Closing Date, the Company shall deliver to the
Initial
Purchasers, in such denomination or
denominations and registered in such name or
names as the Initial Purchasers request
upon notice to the Company, (i) one or
more Senior Secured Notes and one or more
Senior Discount Notes in definitive
global form, registered in the name of Cede
& Co., as nominee of The Depository
Trust Company ("DTC"), having an aggregate
amount corresponding to the aggregate
principal amount of the Notes sold pursuant
to Exempt Resales to QIBs (the
"GLOBAL NOTE") and (ii) if any Exempt
Resales are made in reliance on Regulation
S, one or more Senior Secured Notes and one
or more Senior Discount Notes in
definitive form, registered in the name of
Cede & Co., as nominee of DTC, having
an aggregate amount corresponding to the
aggregate amount of the Notes, if any,
sold pursuant to Exempt Resales in offshore
transactions in reliance on
Regulation S (the "REGULATION S GLOBAL
NOTE"), against payment of the purchase
price therefor by wire transfer of same-day
funds to the account of the Company,
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previously designated by it in writing.
Such delivery of and payment for the
Initial Notes shall be made at the offices
of Latham & Watkins LLP, 885 Third
Avenue, Suite 1000, New York, New York,
10022 or such other location as may be
mutually acceptable. Such delivery and
payment shall be made at 9:30 a.m., New
York City time, on January 6, 2005 or at
such other time as shall be agreed upon
by the Initial Purchasers and the Company.
The time and date of such delivery
and payment are herein called the "CLOSING
DATE." The Global Note and the
Regulation S Global Note shall be made
available to the Initial Purchasers for
inspection not later than 5:00 p.m., New
York City time, on the business day
immediately preceding the Closing Date.
4. Agreements of the Company. The Company covenants to and agrees
with
the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by
the
Initial Purchasers, confirm such advice in
writing, (i) of the issuance by any
state securities commission of any stop
order suspending the qualification or
exemption from qualification of any Notes
for offering or sale in any
jurisdiction, or the initiation of any
proceeding for such purpose by any state
securities commission or other regulatory
authority and (ii) of the happening of
any event that makes any statement of a
material fact made in the Preliminary
Offering Memorandum or the Offering
Memorandum untrue or that requires the
making of any additions to or changes in
the Preliminary Offering Memorandum or
the Offering Memorandum in order to make
the statements therein, in the light of
the circumstances under which they are
made, not misleading. The Company shall
use its best efforts to prevent the
issuance of any stop order or order
suspending the qualification or exemption
of any Notes under any state
securities or Blue Sky laws and, if at any
time any state securities commission
or other regulatory authority shall issue
an order suspending the qualification
or exemption of any Notes under any state
securities or Blue Sky laws, the
Company shall use its best efforts to
obtain the withdrawal or lifting of such
order at the earliest possible time.
(b) To furnish the Initial Purchasers, to counsel to the
Initial
Purchasers and to those persons identified
by the Initial Purchasers to the
Company, without charge, as many copies of
the Preliminary Offering Memorandum
and the Offering Memorandum and any
amendments or supplements thereto, as the
Initial Purchasers may reasonably request.
The Company consents to the use of
the Preliminary Offering Memorandum and the
Offering Memorandum, and any
amendments and supplements thereto required
pursuant hereto, by the Initial
Purchasers in connection with Exempt
Resales.
(c) Not to amend or supplement the Preliminary Offering Memorandum
or
the Offering Memorandum or any amendment or
supplement thereto during such
period as in the opinion of counsel for the
Initial Purchasers the Preliminary
Offering Memorandum or the Offering
Memorandum is required by law to be
delivered in connection with Exempt Resales
and in connection with market-making
activities of the Initial Purchasers for so
long as any Notes are outstanding
unless the Initial Purchasers shall
previously have been advised thereof and
shall not have reasonably objected thereto
within a reasonable time after being
furnished a copy thereof. The Company shall
promptly prepare, upon the Initial
Purchasers' reasonable request or the
request of counsel to the Initial
Purchasers, any amendment or supplement to
the Preliminary Offering Memorandum
or the Offering Memorandum that may be
necessary or advisable in connection with
such Exempt Resales or such market making
activities.
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(d) If, after the date hereof and prior to consummation of any
Exempt
Resale, any event shall occur as a result
of which, in the judgment of the
Company or in the reasonable opinion of
counsel for the Company or counsel for
the Initial Purchasers, it becomes
necessary or advisable to amend or supplement
the Preliminary Offering Memorandum or
Offering Memorandum in order to make the
statements therein, in the light of the
circumstances when such Offering
Memorandum is delivered to an Eligible
Purchaser which is a prospective
purchaser, not misleading, or if for any
other reason it is necessary or
advisable to amend or supplement the
Preliminary Offering Memorandum or Offering
Memorandum to comply with applicable law,
rules or regulations, (i) to notify
the Initial Purchasers and (ii) forthwith
to prepare an appropriate amendment or
supplement to such Preliminary Offering
Memorandum or the Offering Memorandum so
that the statements therein as so amended
or supplemented will not, in the light
of the circumstances when it is so
delivered, be misleading or include an untrue
statement of a material fact or omit to
state a material fact necessary in order
to make the statements therein not
misleading, or so that such Preliminary
Offering Memorandum or the Offering
Memorandum will comply with applicable law,
rules and regulations.
(e) To cooperate with the Initial Purchasers and counsel for
the
Initial Purchasers in connection with the
qualification of the Notes for
offering and sale by the Initial Purchasers
and dealers under the securities or
Blue Sky laws of such jurisdictions as the
Initial Purchasers may reasonably
request and to continue such qualification
in effect so long as required for the
Exempt Resales; provided, however, that the
Company shall not be required in
connection therewith to register or qualify
as a foreign corporation where it is
not now so qualified or to take any action
that would subject it to service of
process in suits or taxation, in each case,
other than as to matters and
transactions relating to the Preliminary
Offering Memorandum, the Offering
Memorandum or Exempt Resales, in any
jurisdiction where it is not now so
subject.
(f) Whether or not the transactions contemplated by this
Agreement
including, but not limited to, the
transactions described in the Operative
Documents, are consummated or this
Agreement becomes effective or is terminated,
to pay all costs, expenses, fees and taxes
incident to the performance of the
obligations of the Company, including in
connection with: (i) the preparation,
printing, filing and distribution of the
Preliminary Offering Memorandum and the
Offering Memorandum (including, without
limitation, financial statements) and
all amendments and supplements thereto
required pursuant hereto, (ii) the
preparation (including, without limitation,
duplication costs) and delivery of
all agreements, correspondence and all
other documents prepared and delivered in
connection herewith and with the Exempt
Resales, (iii) the issuance, transfer
and delivery of the Notes and Guarantees
endorsed thereon to the Initial
Purchasers, (iv) the qualification or
registration of the Notes for offer and
sale under the securities or Blue Sky laws
of the several states (including,
without limitation, the cost of printing
and mailing a preliminary and final
Blue Sky Memorandum and the reasonable fees
and disbursements of counsel for the
Initial Purchasers relating thereto), (v)
furnishing such copies of the
Preliminary Offering Memorandum and the
Offering Memorandum, and all amendments
and supplements thereto, as may be
requested for use in connection with Exempt
Resales, (vi) the preparation of
certificates for the Notes (including, without
limitation, printing and engraving thereof)
and the New Notes (as applicable),
(vii) the fees, disbursements and expenses
of the counsel and accountants to the
Company and the Guarantors, (viii) all
expenses and listing fees in connection
with the application for quotation of the
Securities in the National Association
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of Securities Dealers Automated Quotation
System ("PORTAL"), (ix) all fees and
expenses (including fees and expenses of
counsel) of the Company in connection
with the approval of the Notes by DTC for
"book-entry" transfer, (x) rating the
Notes and the New Notes (as applicable) by
rating agencies, (xi) the reasonable
fees and expenses of the Trustee and its
counsel, (xii) the performance by the
Company of its other obligations under this
Agreement and the other Operative
Documents and (xiii) "roadshow" travel and
other expenses incurred in connection
with the marketing and sale of the Notes
upon presentation of reasonably
satisfactory documentation.
(g) To use the proceeds from the sale of the Notes in the
manner
described in the Offering Memorandum under
the caption "Use of Proceeds."
(h) Not to voluntarily claim, and to resist actively any attempts
to
claim, the benefit of any usury laws
against the holders of any Notes.
(i) To do and perform all things required to be done and
performed
under this Agreement by them prior to or
after the Closing Date and to satisfy
all conditions precedent on their part to
the delivery of the Notes.
(j) Not to sell, offer for sale or solicit offers to buy or
otherwise
negotiate in respect of any security (as
defined in the Securities Act) that
could be integrated with the sale of the
Notes in a manner that would require
the registration under the Securities Act
of the sale to the Initial Purchasers
or the Eligible Purchasers of the Notes or
to take any other action that would
result in the Exempt Resales not being
exempt from registration under the
Securities Act and not to allow any of
their respective "affiliates" (as defined
in Rule 144A under the Act) to do any of
the foregoing.
(k) For so long as any of the Notes remain outstanding and are
"restricted securities" within the meaning
of Rule 144(a)(3) under the
Securities Act and are not able to be sold
in their entirety under Rule 144
under the Securities Act (or any successor
provision) and during any period in
which the Company and the Guarantor are not
subject to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), to make
available to any holder or beneficial owner
of Notes in connection with any sale
thereof and any prospective purchaser of
such Notes from such holder or
beneficial owner, the information (the
"ADDITIONAL ISSUER Information") required
by Rule 144A(d)(4) under the Securities
Act.
(l) To cause the Exchange Offer to be made in the appropriate form
to
permit registered New Notes and the
Exchange Guarantees to be offered in
exchange for the Notes and the Guarantees
thereof and to comply with all
applicable federal and state securities
laws in connection with the Exchange
Offer.
(m) To comply with all of its agreements set forth in the
Registration
Rights Agreement and all agreements set
forth in the representation letters of
the Company to DTC relating to the approval
of the Notes by DTC for "book-entry"
transfer.
(n) To effect the inclusion of the Notes in PORTAL and to
obtain
approval of the Notes by DTC for
"book-entry" transfer.
(o) During a period of five years following the Closing Date, (i)
to
deliver without charge to the Initial
Purchasers, as they may reasonably
request, promptly upon their becoming
available, copies of all reports or other
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publicly available information that the
Company or any Guarantors shall mail to
their securityholders, (ii) to notify the
Initial Purchasers, promptly upon
their becoming available, of all filings of
reports, financial statements and
proxy or information statements filed by
the Company or any Guarantors with the
Commission or any national securities
exchange, and (iii) to notify the Initial
Purchasers, promptly upon their becoming
available, of such other information
concerning the Company, any Guarantors or
any of their subsidiaries, including
without limitation press releases, that
they may make available to their
securityholders; and in the case of (ii)
and (iii) hereof make available
promptly to the Initial Purchasers copies
of the same without charge.
(p) Not to take, directly or indirectly, any action designed to,
or
that might reasonably be expected to, cause
or result in stabilization or
manipulation of the price of any security
of the Company to facilitate the sale
or resale of the Notes. Except as permitted
by the Securities Act, the Company
will not distribute any (i) preliminary
offering memorandum, including, without
limitation, the Preliminary Offering
Memorandum, (ii) offering memorandum,
including, without limitation, the Offering
Memorandum, or (iii) other offering
material in connection with the offering
and sale of the Notes.
(q) To take all reasonable action necessary to enable Investor
Services, Inc. (Moody's) and Standard &
Poor's Ratings Services to provide their
respective initial credit ratings on the
Notes.
(r) To use its best efforts to do and perform all things required
or
necessary to be done and performed under
this Agreement prior to the Closing
Date and to satisfy all conditions
precedent to the delivery of the Notes.
(s) To comply with the agreements in the Indentures, the
Registration
Rights Agreement and each other Operative
Document.
(t) To use its best efforts to do and perform all things necessary
to
perfect, to the extent permitted by law, a
first priority security interest in
the Collateral (as such term is defined in
the Security Agreement).
(u) To deposit into the Escrow Account the Offering Proceeds and
to
comply with all of its agreements set forth
in the Escrow and Security
Agreement.
(v) To represent the Notes sold in reliance on Regulation S
upon
issuance by Temporary Regulation S Global
Notes that may not be exchanged for
definitive securities until the expiration
of the 40-day distribution compliance
period referred to in Rule 903(b)(3) of the
Act and only upon certification of
beneficial ownership of such Initial Notes
(as defined in the Registration
Rights Agreement) by non-U.S. persons or
U.S. persons who purchased such Initial
Notes in transactions that were exempt from
the registration requirements of the
Act.
(w) During the period from the date hereof until 90 days after
the
Closing Date, not to offer, sell, contract
to sell or otherwise dispose of any
debt securities of the Company or warrants
to purchase debt securities of the
Company substantially similar to the Notes
(other than (i) the Notes, (ii) the
Guarantees and (iii) intercompany debt
between the Company and its affiliates
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permitted by the Indentures to be incurred)
or to announce any intention to do
any of the foregoing, without the prior
written consent of Bear Stearns, on
behalf of the Initial Purchasers.
5. Representations and Warranties of the Company. The Company
represents and warrants to the Initial
Purchasers that:
(a) Any reference to the Preliminary Offering Memorandum or the
Offering Memorandum shall be deemed to
refer to and include any Additional
Issuer Information (as defined in Section
4(l)) and so deemed to be included in
the Preliminary Offering Memorandum or the
Offering Memorandum furnished by the
Company prior to the completion of the
distribution of the Notes. The
Preliminary Offering Memorandum as of its
date does not, and the Offering
Memorandum as of its date and as of the
Closing Date does not and will 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 necessary in order 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 shall not apply to
statements in or omissions from the
Preliminary Offering Memorandum and the
Offering Memorandum (or any supplement
or amendment thereto) made in reliance upon
and in conformity with information
relating to any Initial Purchaser furnished
to the Company in writing by any
Initial Purchaser 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 Securities Act, has been issued.
(b) As of the date hereof, and after giving effect to the
Reorganization, Holdings has, and will
have, no subsidiaries other than the
Guarantors.
(c) The Company is, and upon the consummation of the
Reorganization,
Holdings and the Guarantors will (i) be
duly organized, validly existing as a
corporation in good standing under the laws
of its respective jurisdiction of
incorporation, (ii) have all requisite
corporate power and authority to carry on
its business as it is currently being
conducted and as described in the Offering
Memorandum and to own, lease and operate
its properties, and (iii) be duly
qualified and in good standing as a foreign
corporation, 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, with
respect to clauses (i) (as it relates to
good standing) and (iii), where the
failure to be so qualified or in good
standing does not and would not reasonably
be expected to (x) individually or in the
aggregate, result in a material
adverse effect on the properties, business,
results of operations, condition
(financial or otherwise), affairs or
prospects of the Company and, following the
Reorganization, Holdings or any of the
Guarantors, taken as a whole (y)
interfere with or adversely affect the
issuance or sale of the Notes pursuant
hereto or (z) in any manner draw into
question the validity of this Agreement or
any other Operative Document or the
transactions described in the Offering
Memorandum under the caption "Use of
Proceeds" (any of the events set forth in
clauses (x), (y) or (z), a "MATERIAL
ADVERSE EFFECT").
(d) All of the outstanding shares of capital stock of Holdings and
the
Guarantors have been duly authorized,
validly issued, and are fully paid and
nonassessable and were not issued in
violation of any preemptive or similar
rights. At September 30, 2004 the Company
had the actual and pro forma
capitalization as set forth in the Offering
Memorandum under the caption
"Capitalization" (subject in each case to
the assumptions set forth under such
caption).
9
<PAGE>
(e) When the Notes are issued and delivered pursuant to this
Agreement,
no Note will be of the same class (within
the meaning of Rule 144A under the
Securities Act) as securities of the
Company that are listed on a national
securities exchange registered under
Section 6 of the Exchange Act or that are
quoted in a U.S. automated inter-dealer
quotation system.
(f) The Company has all requisite corporate power and authority
to
execute, deliver and perform its
obligations under this Agreement and each of
the other Operative Documents and the
Company has all requisite corporate power
and authority to consummate the
transactions contemplated hereby and thereby,
including, without limitation, the
corporate power and authority to issue, sell
and deliver the Notes, and the Company has
the corporate power to effect the Use
of Proceeds as described herein and in the
Offering Memorandum.
(g) This Agreement has been duly and validly authorized, executed
and
delivered by the Company and is the legal,
valid and binding agreement of the
Company, enforceable against the Company in
accordance with its terms, subject
to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or
similar laws affecting the rights of
creditors generally and subject to general
principles of equity, and except insofar as
indemnification and contribution
provisions may be limited by applicable law
or equitable principles.
(h) The Indentures have been duly and validly authorized by the
Company
and, when duly executed and delivered by
the Company, will be legal, valid and
binding obligations of the Company,
enforceable against the Company in
accordance with their respective terms,
subject to applicable bankruptcy,
insolvency, fraudulent conveyance,
reorganization or similar laws affecting the
rights of creditors generally and subject
to general principles of equity, and
except insofar as indemnification and
contribution provisions may be limited by
applicable law or equitable principles. On
the Closing Date, the Indentures will
conform in all material respects to the
requirements of the Trust Indenture Act
of 1939, as amended (the "TRUST INDENTURE
ACT"), and the rules and regulations
of the Commission applicable to an
indenture which is qualified thereunder. The
Offering Memorandum contains summaries of
the terms of the Indentures, which are
accurate in all material respects.
(i) The Registration Rights Agreement has been duly and validly
authorized by the Company, and, when duly
executed and delivered by the Company,
will be the legal, valid and binding
obligation of the Company, enforceable
against it in accordance with its terms,
subject to applicable bankruptcy,
insolvency, fraudulent conveyance,
reorganization or similar laws affecting the
rights of creditors generally and subject
to general principles of equity, and
except insofar as indemnification and
contribution provisions may be limited by
applicable law or equitable principles. The
Offering Memorandum contains a
summary of the terms of the Registration
Rights Agreement, which is accurate in
all material respects.
(j) The Security Agreement has been duly and validly authorized by
the
Company, and when duly executed and
delivered by the Company, will create a
legal, valid and binding obligation of the
Company, enforceable against it in
accordance with its terms, subject to
applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or
similar laws affecting the rights of
10
<PAGE>
creditors generally and subject to general
principles of equity, and except
insofar as indemnification and contribution
provisions may be limited by
applicable law or equitable principles. The
Offering Memorandum contains a
summary of the terms of the Security
Agreement, which is accurate in all
material respects.
(k) The Notes have been duly and validly authorized by the Company
for
issuance and sale to the Initial Purchasers
pursuant to this Agreement and, when
issued and authenticated in accordance with
the terms of the Indentures and
delivered against payment therefor in
accordance with the terms hereof and
thereof, will be the legal, valid and
binding obligations of the Company,
enforceable against it in accordance with
their terms and entitled to the
benefits of the Indentures, subject to
applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or
similar laws affecting the rights of
creditors generally and subject to general
principles of equity. The Offering
Memorandum contains summaries of the terms
of the Notes, which are accurate in
all material respects.
(l) The New Notes have been duly authorized by the Company and,
when
the New Notes are issued, executed and
authenticated in accordance with the
terms of the Exchange Offer and the
Indentures and delivered against payment
therefor in accordance with the terms
thereof, the New Notes will be entitled to
the benefits of the Indentures and will be
the valid and legally binding
obligations of the Company or Holdings
enforceable against them in accordance
with their terms, subject to applicable
bankruptcy, insolvency, fraudulent
conveyance, reorganization or similar laws
affecting the rights of creditors
generally and subject to general principles
of equity. The offering Memorandum
contains a summary of the terms of the New
Notes which is accurate in all
material respects.
(m) The Exchange Guarantees, upon the consummation of the
Reorganization, will be duly authorized by
the Guarantors, and when the Exchange
Guarantees are issued, executed and
authenticated in accordance with the terms
of the Exchange Offer and the Indentures
and delivered in accordance with the
terms thereof, the Exchange Guarantees will
be entitled to the benefits of the
Indentures and will be the valid and
legally binding obligations of the
Guarantors enforceable against them in
accordance with their terms, subject to
applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or
similar laws affecting the rights of
creditors generally and subject to general
principles of equity. The offering
Memorandum contains a summary of the terms of
the Exchange Guarantees which is accurate
in all material respects.
(n) Each of the
Registration Rights Agreement, Security Agreement and
Pledge Agreement and Collateral Trust
Agreement, upon the consummation of the
Reorganization and when duly executed and
delivered by Holdings and the
Guarantors, will be the legal, valid and
binding obligations of Holdings and the
Guarantors, enforceable against each of
them in accordance with its terms,
subject to applicable bankruptcy,
insolvency, fraudulent conveyance,
reorganization or similar laws affecting
the rights of creditors generally and
subject to general principles of equity,
and except insofar as indemnification
and contribution provisions may be limited
by applicable law or equitable
principles.
(o) The Indentures, upon the consummation of the Reorganization
and
when the Indentures and supplemental
indentures thereto are duly executed and
delivered by Holdings and the Guarantors,
will be legal, valid and binding
obligations of Holdings and the Guarantors,
enforceable against the them in
11
<PAGE>
accordance with their terms, subject to
applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or
similar laws affecting the rights of
creditors generally and subject to general
principles of equity, and except
insofar as indemnification and contribution
provisions may be limited by
applicable law or equitable principles.
After giving effect to the
Reorganization, the Indentures will conform
in all material respects to the
requirements of the Trust Indenture Act of
1939, as amended (the "Trust
Indenture Act"), and the rules and
regulations of the Commission applicable to
an indenture which is qualified
thereunder.
(p) The statistical, industry-related and market-related data
included
in the Offering Memorandum are based on or
are derived from sources (whether
internal or external) which the Company
believes to be reliable and accurate in
all material respects and such data agree
with the sources (whether internal or
external) from which they are derived.
(q) The Company is not and, after giving effect to the Offering and
the
transactions described in the Offering
Memorandum, Operative Documents and the
Reorganization, will not be, (A) in
violation of its certificate of
incorporation or bylaws, (B) in default in
the performance of any bond,
debenture, note, indenture, mortgage, deed
of trust or other agreement or
instrument to which it is a party or by
which it is bound or to which any of its
properties is subject, or (C) in violation
of any local, state or federal law,
statute, ordinance, rule, regulation,
requirement, judgment or court decree
(including, without limitation, the
Communications Act of 1934 (the
"COMMUNICATIONS ACT") and the rules and
regulations of the Federal
Communications Commission (the "FCC"), and
environmental laws, statutes,
ordinances, rules regulations, judgments or
court decrees) applicable to the
Company or any of its assets or properties
(whether owned or leased) other than,
in the case of clauses (B) and (C), any
default or violation that (x) would not
reasonably be expected to have a Material
Adverse Effect or (y) which is
disclosed in the Offering Memorandum. There
exists no condition that, with
notice, the passage of time or otherwise,
would constitute a default under any
such document or instrument, except as
disclosed in the Offering Memorandum.
(r) None of (A) the execution, delivery or performance by the
Company
of this Agreement or any of the other
Operative Documents to which it is a
party, (B) the issuance and sale of the
Notes and, following the Reorganization,
the issuance of the Guarantees and (C) the
consummation by the Company and,
following the Reorganization, Holdings of
the transactions described in the
Offering Memorandum under the caption "Use
of Proceeds," violates, conflicts
with or constitutes a breach of any of the
terms or provisions of, or after
giving effect to the Reorganization will
violate, conflict with or constitute a
breach of any of the terms or provisions
of, or a default under (or an event
that with notice or the lapse of time, or
both, would constitute a default), or
require consent under, or result in the
imposition of a lien or encumbrance on
any properties of the Company, Holdings or
the Guarantors, or an acceleration of
any indebtedness of the Company, Holdings
or the Guarantors under (i) the
charter or bylaws of the Company, Holdings
or the Guarantors, (ii) any bond,
debenture, note, indenture, mortgage, deed
of trust or other agreement or
instrument to which the Company, Holdings
or the Guarantors is a party, or by
which any of them or their property is or
may be bound, (iii) any statute, rule
or regulation applicable to the Company,
Holdings or the Guarantors or any of
their assets or properties or (iv) any
judgment, order or decree of any court or
governmental agency or authority having
jurisdiction over the Company, Holdings
or the Guarantors or any of their assets or
properties, other than, in the case
of clause (ii) above, any default or
violation that (a) would not reasonably be
12
<PAGE>
expected to have a Material Adverse Effect
or (b) which is disclosed in the
Offering Memorandum. No consent, approval,
authorization or order of, or filing,
registration, qualification, license or
permit of or with, (A) any court or
governmental agency, body or administrative
agency or (B) any other person is
required for (i) the execution, delivery
and performance by the Company,
Holdings or the Guarantors of this
Agreement or any of the other Operative
Documents to which they are a party or (ii)
the issuance and sale of the Notes
and the transactions contemplated hereby
and thereby, except such as have been
or will be obtained and made (x) in
connection with the court proceedings
relating to the Reorganization, (y)
otherwise on or prior to the Closing Date or
(z), in the case of the Registration Rights
Agreement, will be obtained and made
under the Securities Act, the Trust
Indenture Act, and state securities or Blue
Sky laws and regulations.
(s) There
is (A) no action, suit, or proceeding before or by any court,
arbitrator or governmental agency, body or
official, domestic or foreign, now or
after giving effect to the Reorganization
pending or, to the knowledge of the
Company, threatened or contemplated to
which the Company, Holdings or any
Guarantor is a party or to which the
business or property of the Company,
Holdings or any Guarantor, is or may be
subject, (B) no statute, rule,
regulation or order that has been enacted,
adopted or issued by any governmental
agency or that has been proposed by any
governmental body and (C) no injunction,
restraining order or order of any nature by
a federal or state court or foreign
court of competent jurisdiction to which
the Company, Holdings or any Guarantor
is or may be subject or after giving effect
to the Reorganization will or may be
subject or to which the business, assets or
property of the Company, Holdings or
any Guarantor is or may be subject or after
giving effect to the Reorganization
will or may be subject, that, in the case
of clauses (A), (B) and (C) above, (x)
is required to be disclosed in the
Preliminary Offering Memorandum and the
Offering Memorandum and that is not so
disclosed, or (y) would reasonably be
expected to, individually or in aggregate,
result in a Material Adverse Effect
or challenge in any respect or seek to
delay or prevent the issuance and sale of
the Notes or the Reorganization.
(t) No action has been taken and no statute, rule, regulation or
order
has been enacted, adopted or issued by any
governmental agency that prevents the
issuance of the Notes or the Guarantees or
prevents or suspends the use of the
Offering Memorandum; no injunction,
restraining order or order of any kind by a
federal or state court of competent
jurisdiction has been issued that prevents
the issuance of the Notes or Guarantees or
prevents or suspends the sale of the
Notes or Guarantees in any jurisdiction
referred to in Section 4(e) hereof or
that could adversely affect the
consummation of the transactions contemplated by
this Agreement or the Offering Memorandum;
and every request of any securities
authority or agency of any jurisdiction for
additional information has been
complied with in all material respects.
(u) There is not, nor after giving effect to the Reorganization
with
respect to Holdings or any Guarantor will
there be, (A) any significant unfair
labor practice complaint pending against
the Company, Holdings or any Guarantor
nor, to the knowledge of the Company,
threatened against any of them, before the
National Labor Relations Board, any state
or local labor relations board or any
foreign labor relations board, and no
significant grievance or significant
arbitration proceeding arising out of or
under any collective bargaining
agreement is so pending against the
Company, Holdings or any Guarantor nor, to
the knowledge of the Company, threatened
against any of them, (B) any
significant strike, labor dispute, slowdown
or stoppage pending against the
13
<PAGE>
Company, Holdings or any Guarantor nor, to
the knowledge of the Company,
threatened against any of them, nor (C) to
the knowledge of the Company, any
union representation question existing with
respect to the employees of the
Company, Holdings or any Guarantor that, in
the cases of clauses (A), (B) or (C)
above, would reasonably be expected to
result in a Material Adverse Effect. To
the knowledge of the Company, no collective
bargaining organizing activities are
taking place with respect to the Company,
Holdings or any Guarantor. None of the
Company, Holdings or any Guarantor has
violated (x) any federal, state or local
law or foreign law relating to
discrimination in hiring, promotion or pay of
employees, (y) any applicable wage or hour
laws or (z) any provision of the
Employee Retirement Income Security Act of
1974, as amended, and the regulations
and published interpretations thereunder
(collectively, "ERISA"), which in the
case of clause (x), (y) or (z) above would
reasonably be expected to result in a
Material Adverse Effect.
(v) Except as disclosed in the Offering
