Exhibit 10.2
TIME WARNER TELECOM HOLDINGS INC.
$200,000,000 of 9¼% SENIOR NOTES DUE
2014
PURCHASE AGREEMENT
February 3, 2005
February 3, 2005
Morgan Stanley & Co. Incorporated
Lehman Brothers Inc.
Wachovia Capital Markets, LLC
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c/o
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Morgan Stanley
& Co. Incorporated
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Dear Sirs and Mesdames:
Time Warner Telecom Holdings Inc., a
Delaware corporation (the “ Company ”), proposes
to issue and sell to the several purchasers named in Schedule I
hereto (the “ Initial Purchasers ”) $200,000,000
principal amount of its Senior Notes due 2014 (the “
Securities ”) to be issued pursuant to the provisions
of an Indenture dated as of the Closing Date (as defined in Section
4 hereof) (the “ Indenture ”) among the Company,
Time Warner Telecom Inc., the parent of the Company (“ TWT
Inc. ”), certain subsidiaries of the Company and TWT Inc.
listed in Schedule II hereto (collectively, the “
Subsidiary Guarantors ” and together with TWT Inc.,
the “ Guarantors ”) and Wells Fargo Bank,
National Association (the “ Trustee ”). The
obligations of the Company under the Securities and the Indenture
will be unconditionally guaranteed on a senior unsecured basis by
the Guarantors pursuant to the terms of the Indenture (the “
Guarantees ”).
The Securities will be offered
without being registered under the Securities Act of 1933, as
amended (the “ Securities Act ”), to qualified
institutional buyers in compliance with the exemption from
registration provided by Rule 144A under the Securities Act and in
offshore transactions in reliance on Regulation S under the
Securities Act (“ Regulation S ”).
The Initial Purchasers and their
direct and indirect transferees will be entitled to the benefits of
a Registration Rights Agreement dated the Closing Date among the
Company, the Guarantors and the Initial Purchasers (the “
Registration Rights Agreement ”).
In connection with the sale of the
Securities, the Company and the Guarantors have prepared a
preliminary offering memorandum (the “ Preliminary
Memorandum ”) and will prepare a final offering
memorandum (the “ Final Memorandum ” and, with
the Preliminary Memorandum, each a “ Memorandum
”) including or incorporating by reference descriptions of
the terms of the Securities, the terms of the offerings and a
description of the Company and the Guarantors. As used herein, the
term “Memorandum” shall include in each case the
documents incorporated by reference therein. The terms “
supplement ”, “ amendment ” and
“ amend ” as used herein with respect to a
Memorandum shall include all documents deemed to be incorporated by
reference in the Preliminary Memorandum or Final Memorandum that
are filed subsequent to the date of such Memorandum with the
Securities and Exchange Commission (the “ Commission
”) pursuant to the Securities Exchange Act of 1934, as
amended (the “ Exchange Act” ).
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1. Representations and
Warranties . Each of the Company and the Guarantors, jointly
and severally, represents and warrants to, and agrees with, you
that:
(a) (i) Each document, if any, filed
or to be filed pursuant to the Exchange Act and incorporated by
reference in either Memorandum complied or will comply when so
filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder and
(ii) the Preliminary Memorandum does not contain and the Final
Memorandum, in the form used by the Initial Purchasers to confirm
sales and on the Closing Date, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this paragraph
do not apply to statements or omissions in either Memorandum based
upon information relating to any Initial Purchaser furnished to the
Company in writing by such Initial Purchaser through you expressly
for use therein.
(b) Each of the Company and TWT Inc.
has been duly incorporated, is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its
property and to conduct its business as described in each
Memorandum and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on TWT Inc. and its subsidiaries, taken as a whole. For the
purpose of this Agreement, the term “subsidiary” refers
to all direct and indirect subsidiaries.
(c) Each subsidiary of TWT Inc.
(other than the Company) has been duly incorporated or, in the case
of partnerships or limited liability companies, duly organized, is
validly existing as a corporation, a partnership or a limited
liability company, as the case may be, in good standing under the
laws of the jurisdiction of its incorporation or organization, has
the corporate power or power as a partnership or limited liability
company, as applicable and authority to own its property and to
conduct its business as described in each Memorandum and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership
or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on TWT Inc. and its
subsidiaries, taken as a whole; all of the issued shares of capital
stock of each subsidiary of TWT Inc. that is a corporation have
been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by TWT Inc. and
the Company, free and clear of any security interest, mortgage,
pledge, lien, encumbrance or claim (collectively, “
Liens ”), except for the Liens expressly permitted
under the Indenture (“ Permitted Liens ”), and
all of the partnership interests and membership interests in each
subsidiary of TWT Inc. that is a partnership or a limited liability
company, as the case may be, are owned directly or indirectly by
TWT Inc. and the Company, free and clear of all Liens, except for
Permitted Liens.
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(d) This Agreement has been duly
authorized, executed and delivered by the Company and the
Guarantors.
(e) The Securities have been duly
authorized by the Company and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to
and paid for by the Initial Purchasers in accordance with the terms
of this Agreement, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency or similar laws affecting
creditors’ rights generally and general principles of equity,
and will be entitled to the benefits of the Indenture and the
Registration Rights Agreement.
(f) The Guarantees have been duly
authorized by each of the Guarantors and, when executed and
delivered by each Guarantor, will be valid and binding obligations
of such Guarantor, enforceable in accordance with their terms,
subject to applicable bankruptcy, insolvency or similar laws
affecting creditors’ rights generally and general principles
of equity, and will be entitled to the benefits of the Indenture
and the Registration Rights Agreement.
(g) The Indenture has been duly
authorized and, when executed and delivered by the Company and each
Guarantor, will be a valid and binding agreement of the Company and
each Guarantor, enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency or similar laws affecting
creditors’ rights generally and general principles of
equity.
(h) The Registration Rights
Agreement has been duly authorized and, when executed and delivered
by the Company and each Guarantor, will be a valid and binding
agreement of the Company and each Guarantor, enforceable in
accordance with its terms, subject to applicable bankruptcy,
insolvency or similar laws affecting creditors’ rights
generally and general principles of equity and except as rights to
indemnification and contribution under the Registration Rights
Agreement may be limited under applicable law.
(i) The execution and delivery by
the Company and each Guarantor of, and the performance by the
Company and each Guarantor of its obligations under, this
Agreement, the Indenture, the Registration Rights Agreement, the
Securities (in the case of the Company), and the Guarantees (in the
case of the Guarantors) will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of
TWT Inc. or any of its subsidiaries or any agreement or other
instrument binding upon TWT Inc. or any of its subsidiaries that is
material to TWT Inc. and its subsidiaries, taken as a whole
(including, without limitation, all agreements and indentures
listed as Exhibits to TWT Inc.’s Annual Report on Form 10-K
for its fiscal year ended December 31, 2003), or any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over TWT Inc. or any of its subsidiaries, and no
consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the
performance by the Company or each Guarantor of its obligations
under this Agreement, the Indenture, the Registration Rights
Agreement, the Securities (in the case of the Company) or the
Guarantees (in the case of the Guarantors), except (1) such as may
be
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required by the securities or Blue
Sky laws of the various states in connection with the offer and
sale of the Securities, (2) by Federal and state securities laws
with respect to the Company’s and each Guarantor’s
obligations under the Registration Rights Agreement, (3) as set
forth in the Memorandum (4) such other consents and approvals as
shall have been obtained on or prior to the date of this Agreement
and (5) regulatory approvals required in connection with the
provision of Guarantees by certain Subsidiary Guarantors. The
Company has filed with the Commission all exhibits required to be
filed pursuant to Item 601 of Regulation S-K.
(j) There has not occurred any
material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise,
or in the earnings, business or operations of TWT Inc. and its
subsidiaries, taken as a whole, from that set forth in the
Memorandum.
(k) There are no legal or
governmental proceedings pending or, to the knowledge of the
Company, threatened to which TWT Inc. or any of its subsidiaries is
a party or to which any of the properties of TWT Inc. or any of its
subsidiaries is subject other than proceedings accurately described
in all material respects in each Memorandum and proceedings that
would not have a material adverse effect on TWT Inc. and its
subsidiaries, taken as a whole, or on the power or ability of the
Company or the Guarantors to perform their obligations under this
Agreement, the Indenture, the Registration Rights Agreement, the
Securities (in the case of the Company) or the Guarantees (in the
case of the Guarantors) or to consummate the transactions
contemplated by the Memorandum.
(l) TWT Inc. and its subsidiaries
(i) are in compliance with any and all applicable foreign, federal,
state and local laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“
Environmental Laws ”), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly
or in the aggregate, have a material adverse effect on TWT Inc. and
its subsidiaries, taken as a whole.
(m) 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 permit, license or approval, 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 on TWT Inc. and its subsidiaries, taken as a
whole.
(n) Neither the Company nor any
Guarantor is, and after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as
described in the Memorandum neither the Company nor any Guarantor
will be required to register
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as, an “investment
company” as such term is defined in the Investment Company
Act of 1940, as amended.
(o) Neither the Company, any
Guarantor nor any affiliate (as defined in Rule 501(b) of
Regulation D under the Securities Act, an “Affiliate”)
of the Company or any Guarantor has directly, or through any agent,
(i) sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as defined in the
Securities Act) which is or will be integrated with the sale of the
Securities in a manner that would require the registration under
the Securities Act of the Securities or (ii) engaged in any form of
general solicitation or general advertising in connection with the
offering of the Securities (as those terms are used in Regulation D
under the Securities Act), or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act;
provided , however , that, in each case, no such
representation or warranty is made by the Company or any Guarantor
with respect to any actions taken by the Initial
Purchasers.
(p) None of the Company, any
Guarantor, their Affiliates or any person acting on its or their
behalf has engaged or will engage in any directed selling efforts
(within the meaning of Regulation S) with respect to the Securities
and the Company, each Guarantor and their Affiliates and any person
acting on its or their behalf have complied and will comply with
the offering restrictions requirement of Regulation S, except no
representation, warranty or agreement is made by the Company or any
Guarantor in this paragraph with respect to the Initial
Purchasers.
(q) Assuming that the
representations and warranties of the Initial Purchasers in Section
7 are true, correct and complete and assuming compliance by the
Initial Purchasers with their covenants in Section 7, it is not
necessary in connection with the offer, sale and delivery of the
Securities to the Initial Purchasers in the manner contemplated by
this Agreement to register the Securities or the Guarantees under
the Securities Act or to qualify the Indenture under the Trust
Indenture Act of 1939, as amended.
(r) The Securities and the
Guarantees satisfy the requirements set forth in Rule 144A(d)(3)
under the Securities Act.
(s) The Securities and the
Guarantees conform in all material respects to the description
thereof contained in the Memorandum under the heading
“Description of Notes.”
(t) Subsequent to the respective
dates as of which information is given in the Memorandum, (i) TWT
Inc. and its subsidiaries have not incurred any material liability
or obligation, direct or contingent, nor entered into any material
transaction not in the ordinary course of business; (ii) TWT Inc.
and its subsidiaries have not purchased any of its outstanding
capital stock, nor has TWT Inc. or the Company declared, paid or
otherwise made any dividend or distribution of any kind on its
capital stock other than ordinary and customary dividends; and
(iii) there has not been any material change in the capital stock,
short-term debt or long-term debt of TWT Inc. and its subsidiaries,
taken as a whole, except in each case as set forth or described in
the Memorandum.
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(u) TWT Inc. and its subsidiaries
have good and marketable title in fee simple to all real property
and good marketable title to all personal property owned by them,
in each case free and clear of all liens, encumbrances and defects
except for Permitted Liens or such as are described in the
Memorandum or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be
made of such property by TWT Inc. and its subsidiaries or such as
do not, singly or in the aggregate, have or could not result in a
material adverse effect on TWT Inc. and its subsidiaries, taken as
a whole; and any real property and buildings held under lease by
TWT Inc. and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as do not
interfere with the use made and proposed to be made of such
property and buildings by TWT Inc. and its subsidiaries or such as
do not, singly or in the aggregate, have or could not result in a
material adverse effect on TWT Inc. and its subsidiaries, taken as
a whole, in each case except as described in the
Memorandum.
(v) Except as set forth in the
Memorandum, TWT Inc. and its subsidiaries own or possess, or can
acquire on reasonable terms, all 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, currently employed by them in connection with the
business now operated by them, except where the failure to own or
possess or to have the right to acquire any of the foregoing,
singly or in the aggregate, does not have a material adverse effect
on TWT Inc. and its subsidiaries, taken as a whole, and neither TWT
Inc. nor any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with
respect to any of the foregoing which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
have a material adverse effect on TWT Inc. and its subsidiaries,
taken as a whole.
(w) No labor dispute with the
employees of TWT Inc. or any of its subsidiaries exists, except as
described in the Memorandum, or, to the knowledge of the Company,
is imminent, except for disputes that do not or would not have a
material adverse effect on TWT Inc. and its subsidiaries taken as a
whole; and the Company is not aware of any existing, threatened or
imminent labor disturbance by the employees of any of its principal
suppliers or contractors that could have a material adverse effect
on TWT Inc. and its subsidiaries, taken as a whole.
(x) TWT Inc. and its subsidiaries
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 TWT Inc. nor any of its subsidiaries 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 as may be necessary to continue its
business at a cost that would not have a material adverse effect on
TWT Inc. and its subsidiaries, taken as a whole, except as
described in the Memorandum.
(y) TWT Inc. and its subsidiaries
possess all permits, licenses, rights of way, approvals, consents
and other authorizations issued by the appropriate federal, state,
local or foreign regulatory agencies or bodies (including the
Federal Communications
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Commission (the “ FCC
”), the public utilities commission, or any equivalent body,
of each state in which TWT Inc. and its subsidiaries do business
and any other relevant state or local governmental department,
commission, board, bureau, agency, court or other authority thereof
(the “ Local Authorities ”)) required for the
conduct of the telecommunications business now operated by TWT Inc.
and its subsidiaries (collectively, the “ Governmental
Licenses ”), except where the failure to possess any such
Governmental Licenses would not, singly or in the aggregate, have a
material adverse effect on TWT Inc. and its subsidiaries, taken as
a whole; TWT Inc. and its subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except
where the failure so to comply would not, singly or in the
aggregate, have a material adverse effect on TWT Inc. and its
subsidiaries, taken as a whole; all of the Governmental Licenses
are valid and in full force and effect, except where the invalidity
of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not, singly or in the
aggregate, have a material adverse effect on TWT Inc. and its
subsidiaries, taken as a whole; there is no outstanding adverse
judgment, decree or order that has been issued by the FCC or any of
the Local Authorities against TWT Inc. or any of its subsidiaries
and which, singly or in the aggregate, would have a material
adverse effect on TWT Inc. and its subsidiaries, taken as a whole;
and neither TWT Inc. nor any of its subsidiaries has received any
notice of or is aware of proceedings relating to the revocation or
modification of any such Governmental Licenses or, except as set
forth in the Memorandum, that would otherwise affect the operations
of TWT Inc. or its subsidiaries and which, singly or in the
aggregate, would have a material adverse effect on TWT Inc. and its
subsidiaries, taken as a whole.
(z) TWT Inc. and each of its
subsidiaries 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.
2. Agreements to Sell and
Purchase . The Company hereby agrees to sell to the several
Initial Purchasers, and each Initial Purchaser, upon the basis of
the representations and warranties herein contained, but subject to
the conditions hereinafter stated, agrees, severally and not
jointly, to purchase from the Company the respective principal
amount of Securities set forth in Schedule I hereto opposite its
name at a purchase price of 98.50% of the principal amount thereof
(the “ Purchase Price ”).
The Company and each Guarantor
hereby agree that, without the prior written consent of Morgan
Stanley & Co. Incorporated on behalf of the Initial Purchasers,
it will not, during the period beginning on the date hereof and
continuing to and including the Closing Date, offer, sell, contract
to sell or otherwise dispose of any debt of the Company or any of
the Guarantors or warrants to purchase debt of the Company or any
of the Guarantors substantially similar to the Securities (other
than the sale of the Securities under this Agreement.)
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3. Terms of Offering . You
have advised the Company and the Guarantors that the Initial
Purchasers will make an offering of the Securities purchased by the
Initial Purchasers hereunder on the terms to be set forth in this
Agreement and the Memorandum, as soon as practicable after this
Agreement is entered into as in your judgment is
advisable.
4. Payment and Delivery.
Payment for the Securities shall be made to the Company in Federal
or other funds immediately available in New York City against
delivery of such Securities for the respective accounts of the
several Initial Purchasers at 10:00 a.m., New York City time, on
February 9, 2005. The time and date of such payment are hereinafter
referred to as the “ Closing Date .”
Certificates for the Securities
shall be in definitive form or global form, as specified by Morgan
Stanley & Co. Incorporated, and registered in such names and in
such denominations as Morgan Stanley & Co. Incorporated shall
request in writing not later than one full business day prior to
the Closing Date. The certificates evidencing the Securities shall
be delivered to you on the Closing Date for the respective accounts
of the several Initial Purchasers, with any transfer taxes payable
in connection with the transfer of the Securities to the Initial
Purchasers duly paid, against payment of the Purchase Price
therefor.
5. Conditions to the Initial
Purchasers’ Obligations. The several obligations of the
Initial Purchasers to purchase and pay for the Securities on the
Closing Date are subject to the following conditions:
(a) Subsequent to the execution and
delivery of this Agreement and prior to the Closing
Date:
(i) there shall not have occurred
any downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a possible
change that does not indicate the direction of the possible change,
in the rating accorded any of TWT Inc.’s or the
Company’s securities by any “nationally recognized
statistical rating organization,” as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred
any change, or any development involving a prospective change, in
the condition, financial or otherwise, or in the earnings, business
or operations of TWT Inc. and its subsidiaries, taken as a whole,
from that set forth in the Memorandum (exclusive of any amendments
or supplements thereto subsequent to the date of this Agreement)
that, in your judgment, is material and adverse and that makes it,
in your judgment, impracticable to market the Securities on the
terms and in the manner contemplated in the Memorandum.
(b) The Initial Purchasers shall
have received on the Closing Date (i) a certificate, dated the
Closing Date and signed by an executive officer of the Company, to
the effect set forth in Section 5(a)(i) and to the effect that the
representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and the
Company has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied
hereunder on or before the
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Closing Date; and (ii) a
certificate, dated the Closing Date and signed by an executive
officer of each Guarantor, to the effect set forth in Section
5(a)(i) and to the effect that the representations and warranties
of such Guarantor contained in this Agreement are true and correct
as of the Closing Date and such Guarantor has complied with all of
the agreements and satisfied all of the conditions on its part to
be performed or satisfied hereunder on or before the Closing
Date.
The officer signing and delivering
such certificate may rely upon the best of his or her knowledge as
to proceedings threatened.
(c) The Initial Purchasers shall
have received on the Closing Date an opinion of Faegre & Benson
LLP, outside counsel for the Company and the Guarantors, dated the
Closing Date, to the effect that:
(i) Each of the Company and TWT Inc.
has been duly incorporated, and, based solely on a certificate of
good standing from the Secretary of State of the State of Delaware,
is a corporation validly existing and in good standing under the
laws of the State of Delaware, with full corporate power and
authority to conduct its business as described in the
Memorandum;
(ii) to such counsel’s
knowledge, (A) there are not any pending or threatened governmental
proceedings before any court or governmental agency or authority or
any arbitrator to which TWT Inc. or any of its subsidiaries is a
party or to which any of the properties of TWT Inc. or any of its
subsidiaries is subject of a character required to be disclosed in
the Memorandum which are not disclosed as required, and (B) there
is no contract, indenture, mortgage, loan agreement, note, lease or
other document of a character required to be described in the
Memorandum which is not described as required;
(iii) the Securities conform in all
material respects to the description thereof contained in the
Memorandum; the Securities have been duly authorized by the Company
and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Initial Purchasers in accordance with the terms of the Purchase
Agreement, will constitute legal, valid and binding obligations of
the Company, entitled to the benefits of the Indenture and the
Registration Rights Agreement, and enforceable against the Company
in accordance with their terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors’ rights generally and
general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealings, regardless of whether in a proceeding in equity or at
law);
(iv) the Guarantees conform in all
material respects to the description thereof contained in the
Memorandum; the Guarantees have been duly authorized by the
Guarantors and, when executed and authenticated in accordance with
the provisions of the Indenture and delivered to and paid for by
the Initial Purchasers in accordance with the terms of the Purchase
Agreement, will constitute legal, valid and binding obligations of
each Guarantor, entitled to the benefits of the
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Indenture and the Registration
Rights Agreement, and enforceable against the Guarantors in
accordance with their terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors’ rights generally and
general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealings, regardless of whether in a proceeding in equity or at
law);
(v) each of the Indenture and the
Registration Rights Agreement has been duly authorized, executed
and delivered by, and constitutes a legal, valid and binding
obligation of, the Company and each Guarantor, enforceable in
accordance with its terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors’ rights generally and
general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealings, regardless of whether in a proceeding in equity or at
law, and subject to rights to indemnification and contribution
under the Registration Rights Agreement as may be limited under
applicable law);
(vi) the Purchase Agreement has been
duly authorized, executed and delivered by the Company and each
Guarantor;
(vii) the execution and delivery by
the Company and each Guarantor of, and the performance by the
Company and each Guarantor of their obligations under, this
Agreement, the Indenture, the Registration Rights Agreement, the
Securities (in the case of the Company) and the Guarantees (in the
case of the Guarantors) will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of
TWT Inc. or its subsidiaries or, to such counsel’s knowledge,
any judgment, order or decree of any governmental body, agency or
court having jurisdiction over TWT Inc. or its subsidiaries, and no
consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the
performance by the Company and each Guarantor of their obligations
under this Agreement, the Indenture, the Registration Rights
Agreement, the Securities (in the case of the Company) or the
Guarantees (in the case of the Guarantors), except such as may be
required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Securities and by
Federal and state securities laws with respect to the
Company’s and the Guarantors’ obligations under the
Registration Rights Agreement and except for such as may be
required by the FCC or Local Authorities, as to which such counsel
expresses no opinion;
(viii) the statements made in the
Memorandum under the captions, “Description of Notes,”
“Description of Certain Indebtedness,” “Notice to
Investors” and “Certain Material United States Federal
Tax Considerations” in each case insofar as such statements
constitute summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called for with
respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein;
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(ix) neither the Company nor the
Guarantors are, and after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as
described in the Memorandum, will be required to register as, an
“investment company” as such term is defined in the
Investment Company Act of 1940, as amended;
(x) assuming (i) the accuracy of,
and compliance with, the representations, warranties and covenants
of the Company and each Guarantor in Sections 1 and 6 of this
Agreement and (ii) the accuracy of, and compliance with the
representations, warranties and covenants of each Initial Purchaser
in Section 7 of this Agreement, it is not necessary in connection
with the offer, sale and delivery of the Securities in the manner
contemplated by this Agreement and the Memorandum to register the
Securities or the Guarantees under the Securities Act or to qualify
the Indenture under the Trust Indenture Act of 1939, as amended, it
being understood that no opinion is expressed as to any subsequent
resale of any Securities;
(xi) to such counsel’s
knowledge, there are no statutes or regulations (other than
federal, state or local telecommunications statutes or regulations
as to which such counsel expresses no opinion) that are required to
be disclosed in the Memorandum that are not
