EXHIBIT 10.18
iPCS, INC.
iPCS EQUIPMENT, INC.
iPCS WIRELESS, INC.
$300,000,000
300,000 Units Consisting of
14% Senior Discount Notes due 2010
and Warrants to Purchase 2,982,699 Shares of Common Stock
PURCHASE AGREEMENT
June 29, 2000
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
TD SECURITIES (USA) INC.
$300,000,000
iPCS, INC.
iPCS EQUIPMENT, INC.
iPCS WIRELESS, INC.
300,000 Units Consisting of
14% Senior Discount Notes due 2010
and Warrants to Purchase 2,982,699 Shares of Common Stock
PURCHASE AGREEMENT
June 29, 2000
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
TD SECURITIES (USA) INC.
c/▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
iPCS, Inc., a Delaware corporation (the "Company"), proposes to issue
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and sell to ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation ("DLJ") and TD
Securities (USA) Inc. (each, an "Initial Purchaser" and collectively, the
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"Initial Purchasers") 300,000 units (the "Units"), each consisting of $1,000 in
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aggregate principal amount at maturity of the Company's 14% Senior Discount
Notes due 2010 (the "Initial Notes"), and one warrant (a "Warrant," and all such
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warrants being hereinafter referred to, collectively, as the "Warrants") to
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purchase 9.94233 shares of the Company's common stock, par value $0.01 per share
("Common Stock"), subject to the terms and conditions set forth herein. The
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Initial Notes are to be issued pursuant to the provisions of an indenture (the
"Indenture"), to be dated as of the Closing Date (as defined below), among the
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Company, the Guarantors
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(as defined below) and the trustee under the Indenture, as trustee (the
"Trustee"). The Initial Notes and the Exchange Notes (as defined below) issuable
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in exchange therefor are collectively referred to herein as the "Notes." The
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Notes will be guaranteed (the "Guarantees") by iPCS Equipment, Inc., a Delaware
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corporation ("Equipment"), iPCS Wireless, Inc., a Delaware corporation
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("Wireless"), and by future subsidiaries of the Company that become Restricted
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Subsidiaries (as defined in the Indenture) other than Foreign Subsidiaries (as
defined in the Indenture) (each of Wireless, Equipment and such future
subsidiaries is referred to as a "Guarantor" and collectively as the
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"Guarantors"). The Warrants will be issued pursuant to a warrant agreement (the
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"Warrant Agreement"), to be dated as of the Closing Date, between the Company
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and the warrant agent under the Warrant Agreement, as warrant agent (the
"Warrant Agent"). The shares of Common Stock issuable upon exercise of the
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Warrants are referred to herein, collectively, as the "Warrant Shares." The
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Units, the Notes, the Guarantees and the Warrants are referred to herein,
collectively, as the "Securities." Capitalized terms used but not defined
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herein shall have the meanings given to such terms in the Indenture or Warrant
Agreement, as applicable.
In addition, Wireless, as borrower, and the Company and Equipment, as
guarantors, expect to enter into a credit agreement (the "Credit Agreement")
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with several lending institutions that from time to time will be parties thereto
(the "Lenders"), Toronto Dominion (Texas), Inc., as administrative agent, and
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General Electric Capital Corporation, as syndication agent. The Credit
Agreement will provide for senior credit facilities in an aggregate amount of at
least $140,000,000 (the debt financing being provided to the Company under the
Credit Agreement being hereinafter referred to as the "Senior Financing"). The
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Company also expects to enter into an investment agreement (the "Investment
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Agreement") with Blackstone Capital Partners III Merchant Banking Fund L.P.
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and/or affiliated funds to provide for the purchase and sale of shares of Series
A-1 and Series A-2 Convertible Preferred Stock, par value $0.01 per share (the
"Convertible Preferred Stock"), of the Company for an aggregate purchase price
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of up to $120.0 million (the financing to be provided to the Company under the
Investment Agreement being hereinafter referred to as the "Equity Financing").
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1. Offering Memorandum. The Units will be offered and sold to the
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Initial Purchasers pursuant to one or more exemptions from the registration
requirements under the Securities Act of 1933, as amended (the "Act"). The
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Company and the Guarantors have prepared a preliminary offering memorandum,
dated June 29, 2000 (the "Preliminary Offering Memorandum") and a final offering
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memorandum, to be dated, if practicable by the exercise of the Company's and the
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Guarantors' reasonable best efforts to prepare such final offering memorandum,
no later than July 7, 2000, and, in any event, no later than July 10, 2000 (the
"Offering Memorandum"), relating to the Units.
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Upon original issuance thereof, and until such time as the same is no
longer required pursuant to the Indenture and the Warrant Agreement, the Initial
Notes and the Warrants (and, as to both the Initial Notes and the Warrants, all
securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear a legend in substantially the following form,
together with such other legends as may be set forth in the Indenture or Warrant
Agreement, as applicable:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE
NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER:
(1) REPRESENTS THAT (i) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE ACT)(A "QIB"), (ii) IT HAS ACQUIRED
THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE ACT OR (iii) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE ACT) (AN "IAI"),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (i) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (ii) TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (iii) IN AN OFFSHORE TRANSACTION
MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE ACT, (iv) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE ACT, (v) TO
AN IAI THAT, PRIOR TO
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SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF
THIS SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE)
AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT
OF NOTES LESS THAN $250,000, OR ANY WARRANTS OR WARRANT SHARES, AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE ACT, (vi) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE ACT (AND BASED UPON AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (vii) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY OTHER APPLICABLE JURISDICTION AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY
OR AN INTEREST ▇▇▇▇▇▇ IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE
THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE ACT. THE
INDENTURE AND THE WARRANT AGREEMENT CONTAIN PROVISIONS REQUIRING THE
TRUSTEE OR THE WARRANT AGENT TO REFUSE TO REGISTER ANY TRANSFER OF THESE
SECURITIES IN VIOLATION OF THE FOREGOING."
2. Agreements to Sell and Purchase. On the basis of the
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representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained herein, the Company and the
Guarantors agree to issue and sell to the Initial Purchasers, and each Initial
Purchaser severally, and not jointly, agrees to purchase from the Company and
the Guarantors the number of Units set forth opposite the name of such Initial
Purchaser in Schedule A hereto at a purchase price equal to $489.99805 per Unit
(the "Purchase Price").
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3. Terms of Offering. The Initial Purchasers have advised the
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Company that the Initial Purchasers will make offers (the "Exempt Resales") of
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the Units purchased hereunder on the terms set forth in the Offering Memorandum,
as amended or supplemented, solely to (i) persons whom the Initial Purchaser
reasonably believe to be "qualified institutional buyers" as defined in Rule
144A under the Act ("QIBs") and (ii) persons permitted to purchase Units in
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offshore transactions in reliance upon Regulation S under the Act (each, a
"Regulation S Purchaser") (such persons specified in clauses (i) and (ii) being
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referred to herein as the "Eligible Purchasers"). The Initial Purchasers will
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offer the Units to Eligible Purchasers initially at a price equal to $507.77 per
Unit. Such price may be changed at any time without notice.
Holders (including subsequent transferees) of the Units will have the
registration rights set forth in the registration rights agreement (the "Notes
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Registration Rights Agreement"), to be dated the Closing Date, in substantially
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the form of Exhibit A hereto, and the registration rights agreement (the
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"Warrant Registration Rights Agreement") to be dated as of the Closing Date,
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substantially in the form of Exhibit B hereto, for so long as such Initial
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Notes, Warrants or Warrant Shares constitute "Transfer Restricted Securities"
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(as defined in the Notes Registration Rights Agreement and the Warrant
Registration Rights Agreement, as applicable). Pursuant to the Notes
Registration Rights Agreement and the Warrant Registration Rights Agreement, (i)
the Company and the Guarantors will agree to file with the Securities and
Exchange Commission (the "Commission") under the circumstances set forth
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therein, (x) a registration statement under the Act (the "Exchange Offer
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Registration Statement") relating to the Company's 14% Senior Discount Notes due
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2010 (the "Exchange Notes"), to be offered in exchange for the Initial Notes
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(such offer to exchange being referred to as the "Exchange Offer") and the
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Guarantees thereof and (y) a shelf registration statement pursuant to Rule 415
under the Act (the "Notes Shelf Registration Statement" and, together with the
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Exchange Offer Registration Statement, the "Notes Registration Statements")
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relating to the resale by certain holders of the Initial Notes and to use their
respective reasonable best efforts to cause such Notes Registration Statements
to be declared and remain effective and usable for the periods specified in the
Notes Registration Rights Agreement and to consummate the Exchange Offer and
(ii) the Company will agree to file with the Commission under the circumstances
set forth therein a registration statement pursuant to Rule 415 under the Act
(the "Warrant Shelf Registration Statement") relating to the resale of the
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Warrants, the issuance of shares of Common Stock upon exercise of the Warrants
and the resale of the Warrant Shares and to use its reasonable best efforts to
cause such Warrant Shelf Registration Statement to be declared and remain
effective and usable for the periods specified in
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the Warrant Registration Rights Agreement. This Agreement, the Indenture, the
Notes, the Guarantees, the Warrants, the Warrant Agreement, the Notes
Registration Rights Agreement and the Warrant Registration Rights Agreement are
hereinafter sometimes referred to collectively as the "Operative Documents."
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4. Delivery and Payment.
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(a) Delivery of, and payment of the Purchase Price for, the
Units shall be made at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
(Illinois), ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, or such other location as
may be mutually acceptable. Such delivery and payment shall be made at 9:00 a.m.
New York City time, on July 12, 2000, or at such other time on the same date or
such other date as shall be agreed upon by the Initial Purchasers and the
Company in writing. The time and date of such delivery and the payment for the
Units are herein called the "Closing Date."
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(b) One or more of the Initial Notes in definitive global form
and one or more of the Warrants in definitive global form, in each case
registered in the name of Cede & Co., as nominee of the Depository Trust Company
("DTC"), having, in the case of the Initial Notes, an aggregate principal amount
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corresponding to the aggregate principal amount of the Initial Notes
(collectively, the "Global Note") and representing, in the case of the Warrants,
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the right to purchase the number of Warrant Shares corresponding to the
aggregate number of Warrant Shares (collectively, the "Global Warrant"), shall
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be delivered by the Company to the Initial Purchasers (or as the Initial
Purchasers direct) in each case with any transfer taxes thereon duly paid by the
Company against payment by the Initial Purchasers of the Purchase Price thereof
by wire transfer in same day funds to the order of the Company. The Global Note
and the Global Warrant shall be made available to the Initial Purchasers for
inspection not later than 9:30 a.m., New York City time, on the business day
immediately preceding the Closing Date.
5. Agreements of the Company and the Guarantors. Each of the
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Company and the Guarantors hereby 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 Securities for offering or
sale in any jurisdiction designated by the Initial Purchasers pursuant to
Section 5(e) hereof, or the initiation
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of any proceeding by any state securities commission or any other federal or
state regulatory authority for such purpose and (ii) of the happening of any
event during the period referred to in Section 5(c) below that makes any
statement of a material fact made in the Preliminary Offering Memorandum or the
Offering Memorandum untrue or that requires any additions to or changes in the
Preliminary Offering Memorandum or the Offering Memorandum in order to make the
statements therein not misleading. The Company and the Guarantors shall use
their best efforts to prevent the issuance of any stop order or order suspending
the qualification or exemption of any Securities under any state securities or
Blue Sky laws and, if at any time any state securities commission or other
federal or state regulatory authority shall issue an order suspending the
qualification or exemption of any Securities under any state securities or Blue
Sky laws, the Company and the Guarantors shall use their best efforts to obtain
the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish the Initial Purchasers and those persons
identified by the Initial Purchasers to the Company 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 for the
time period specified in Section 5(c). Subject to the Initial Purchasers'
compliance with its representations and warranties and agreements set forth in
Section 7 hereof, 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) During such period as in the opinion of counsel for the
Initial Purchasers an Offering Memorandum is required by law to be delivered in
connection with Exempt Resales by the Initial Purchasers and in connection with
market-making activities of the Initial Purchasers for so long as any Securities
are outstanding, (i) not to make any amendment or supplement to the Offering
Memorandum of which the Initial Purchasers shall not previously have been
advised or to which the Initial Purchasers shall reasonably object after being
so advised and (ii) to prepare promptly upon the Initial Purchasers' reasonable
request, any amendment or supplement to the Offering Memorandum which may be
necessary or advisable in connection with such Exempt Resales or such market-
making activities.
(d) If, during the period referred to in Section 5(c) above, any
event shall occur or condition shall exist as a result of which, in the opinion
of counsel to the Initial Purchasers, it becomes necessary to amend or
supplement the
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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, not misleading, or if, in the opinion of counsel to the Initial
Purchasers, it is necessary to amend or supplement the Offering Memorandum to
comply with any applicable law, forthwith to prepare an appropriate amendment or
supplement to such 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 so that such Offering Memorandum will comply
with applicable law, and to furnish to the Initial Purchasers and such other
persons as the Initial Purchasers may designate such number of copies thereof as
the Initial Purchasers may reasonably request.
(e) Prior to the sale of all Securities pursuant to Exempt
Resales as contemplated hereby, to cooperate with the Initial Purchasers and
counsel to the Initial Purchasers in connection with the registration or
qualification of the Securities for offer and sale to the Initial Purchasers and
pursuant to Exempt Resales under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers may request and to continue such
registration or qualification in effect so long as required for Exempt Resales
and to file such consents to service of process or other documents as may be
necessary in order to effect such registration or qualification; provided,
however, that neither the Company nor any Guarantor shall be required in
connection therewith to qualify as a foreign corporation in any jurisdiction in
which it is not now so qualified or to take any action that would subject it to
general consent to service of process or taxation other than as to matters and
transactions relating to the Preliminary Offering Memorandum, the Offering
Memorandum or Exempt Resales in any jurisdiction in which it is not now so
subject.
(f) So long as any Securities are outstanding and the Indenture
or the Warrant Agreement so requires, (i) to make generally available as soon as
practicable after the end of each fiscal year to the record holders of the
Securities a financial report of the Company and its subsidiaries on a
consolidated basis (and a similar financial report of all unconsolidated
subsidiaries, if any), all such financial reports to include a consolidated
balance sheet, a consolidated statement of operations, a consolidated statement
of cash flows and a consolidated statement of shareholders' equity as of the end
of and for such fiscal year, together with comparable information as of the end
of and for the preceding year, certified by the Company's independent public
accountants and (ii) to make generally available as soon as practicable after
the end of each quarterly period (except for the last quarterly period of each
fiscal year) to such holders, a consolidated balance sheet, a consolidated
statement of operations and a consolidated statement of cash flows (and
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similar financial reports of all unconsolidated subsidiaries, if any) as of the
end of and for such period, and for the period from the beginning of such year
to the close of such quarterly period, together with comparable information for
the corresponding periods of the preceding year.
(g) So long as any Securities are outstanding, to furnish to the
Initial Purchasers, upon request, as soon as available copies of all reports or
other communications furnished by the Company or any of the Guarantors to its
security holders or furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company or any of
the Guarantors is listed and such other publicly available information
concerning the Company and/or its subsidiaries as the Initial Purchasers may
reasonably request.
(h) So long as any of the Securities remain outstanding and
during any period in which the Company and the Guarantors are not subject to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), to, upon request, make available to any holder of such
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Securities in connection with any sale thereof and any prospective purchaser of
such Securities from such holder, the information ("Rule 144A Information")
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required by Rule 144A(d)(4) under the Act.
(i) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of the obligations of the Company
and the Guarantors under this Agreement, including: (i) the fees, disbursements
and expenses of counsel to the Company and the Guarantors and accountants of the
Company and the Guarantors in connection with the sale and delivery of the
Securities to the Initial Purchasers and pursuant to Exempt Resales, and all
other fees and expenses in connection with the preparation, printing, filing and
distribution of the Preliminary Offering Memorandum, the Offering Memorandum and
all amendments and supplements to any of the foregoing (including financial
statements), including the mailing and delivering of copies thereof to the
Initial Purchasers and persons designated by it in the quantities specified
herein, (ii) all costs and expenses related to the transfer and delivery of the
Securities to the Initial Purchasers and pursuant to Exempt Resales, including
any transfer or other taxes payable thereon, (iii) all costs of printing or
producing this Agreement, the other Operative Documents and any other agreements
or documents in connection with the offering, purchase, sale or delivery of the
Securities, (iv) all expenses in connection with the registration or
qualification of the Securities and the Guarantees for offer and sale under the
securities or Blue Sky laws of the several states and all costs of
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printing or producing any preliminary and supplemental Blue Sky memoranda in
connection therewith (including the filing fees and fees and disbursements of
counsel for the Initial Purchasers in connection with such registration or
qualification and memoranda relating thereto), (v) the cost of printing
certificates representing the Securities, if applicable, (vi) all expenses and
fees in connection with the application for quotation of the Units, Initial
Notes and the Warrants in the National Association of Securities Dealers, Inc.
("NASD") Automated Quotation System - PORTAL ("PORTAL"), (vii) the fees and
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expenses of the Trustee and the Trustee's counsel in connection with the
Indenture, the Notes and the Guarantees, (viii) the fees and expenses of the
Warrant Agent and the Warrant Agent's counsel in connection with the Warrant
Agreement and the Warrants, (ix) the costs and charges of any transfer agent,
registrar and/or depositary (including DTC), (x) any fees charged by rating
agencies for the rating of the Securities, (xi) all costs and expenses of the
Exchange Offer, any Notes Registration Statement and any Warrant Shelf
Registration Statement, as set forth in the Notes Registration Rights Agreement
and the Warrant Registration Rights Agreement, and (xii) all other costs and
expenses incident to the performance of the obligations of the Company and the
Guarantors hereunder for which provision is not otherwise made in this Section.
(j) In accordance with the Warrant Agreement, to cause any
Warrant Shares, upon issuance, to be listed on the principal securities
exchanges, automated quotation systems or other markets within the United States
of America, if any, on which other shares of Common Stock are then listed and to
maintain any such listings of Warrant Shares for so long as such Warrant Shares
are outstanding and such other shares of Common Stock are then listed.
(k) To use its best efforts to effect the inclusion of the
Units, Initial Notes and Warrants on PORTAL and to maintain the listing of the
Units, Initial Notes and Warrants on PORTAL for so long as the Units, Initial
Notes and Warrants are outstanding.
(l) To obtain the approval of DTC for "book-entry" transfer of
the Notes and the Warrants as Units and as separate securities, and to comply
with all of its agreements set forth in the representation letters of the
Company and the Guarantors to DTC relating to the approval of the Notes and the
Warrants as Units and as separate securities by DTC for "book-entry" transfer.
(m) During the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell, contract to
sell or otherwise transfer or dispose of any securities of the Company or any
Guarantor or
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any warrants, rights or options to purchase or otherwise acquire securities of
the Company or any Guarantor substantially similar to any of the Securities
(other than (i) the Units, (ii) the Notes and the Guarantees, (iii) the
Warrants, (iv) the debt securities to be issued on connection with the Bank
Financing, (v) the equity securities to be issued in connection with the Equity
Financing, (vi) the warrants to be issued to Sprint pursuant to the Sprint
Agreements (as defined herein), (vii) the securities to be issued in connection
with reorganization to form a holding company structure as described in the
Offering Memorandum and (viii) commercial paper issued in the ordinary course of
business), without the prior written consent of the Initial Purchasers.
(n) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act) that
would be integrated with the sale of the Securities to the Initial Purchasers or
pursuant to Exempt Resales in a manner that would require the registration of
any such sale of Securities under the Act.
(o) Not to voluntarily claim, and to actively resist any
attempts to claim, the benefit of any usury laws against the holders of any
Securities.
(p) To cause the Exchange Offer to be made in the appropriate
form to permit Exchange Notes and guarantees thereof by the Guarantors
registered pursuant to the Act to be offered in exchange for the Initial Notes
and the Guarantees and to comply with all applicable federal and state
securities laws in connection with the Exchange Offer.
(q) To comply with all of its agreements set forth in the
Warrant Agreement.
(r) To comply with all of its agreements set forth in the
Warrant Registration Rights Agreement.
(s) To comply with all of its agreements set forth in the Notes
Registration Rights Agreement.
(t) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by it prior
to the Closing Date and to satisfy all conditions precedent to the delivery of
the Units.
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6. Representations, Warranties and Agreements of the Company and the
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Guarantors. As of the date hereof, each of the Company and the Guarantors,
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jointly and severally, represents and warrants to, and agrees 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 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.
(b) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and at the Closing Date will have the
corporate 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 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 so qualified would not have a
material adverse effect on the business, prospects, financial condition or
results of operations of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect").
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(c) At the Closing Date all outstanding shares of capital stock
of the Company will have been duly authorized and validly issued and will be
fully paid, nonassessable and not subject to any preemptive or similar rights.
The authorized capital stock of the Company conforms to the description thereof
contained in the Offering Memorandum.
(d) Equipment and Wireless are the only subsidiaries, direct or
indirect, of the Company. All of the outstanding shares of capital stock of
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each of the Company's subsidiaries have been duly authorized and validly issued
and are fully paid and nonassessable, and 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"), except as expressly provided under the Credit Agreement and the Sprint
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PCS Management Agreement.
(e) This Agreement has been duly authorized, executed and
delivered by the Company and each of the Guarantors. This Agreement conforms to
the description hereof contained in the Offering Memorandum.
(f) The Warrant Agreement has been duly authorized by the
Company and, on the Closing Date, will have been validly executed and delivered
by the Company. When the Warrant Agreement has been validly executed and
delivered by the Company and the Warrant Agent, the Warrant Agreement will be a
valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(g) The Warrants have been duly authorized by the Company and,
on the Closing Date, will have been validly executed and delivered by the
Company. When the Warrants have been executed and countersigned in accordance
with the provisions of the Warrant Agreement and delivered to and paid for by
the Initial Purchasers as part of a Unit, the holders of the Warrants will be
entitled to the benefits of the Warrant Agreement and the Warrants will be valid
and binding obligations of the Company enforceable against the Company in
accordance with their terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability. On the
Closing Date, the Warrants will conform to the description thereof contained in
the Offering Memorandum.
(h) The Warrant Shares have been duly and validly authorized for
issuance by the Company and, when issued pursuant to the terms of the Warrants
and the Warrant Agreement, will be validly issued, fully paid, nonassessable and
not subject to any preemptive or similar rights.
14
(i) The 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 Indenture has
been validly executed and delivered by the Company and each of the Guarantors,
the 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 (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability. On the Closing Date, the
Indenture will conform in all material respects to the requirements of the Trust
Indenture Act of 1939, as amended (the "TIA" or "Trust Indenture Act"), and the
--- -------------------
rules and regulations of the Commission applicable to an indenture which is
qualified thereunder.
(j) The Initial Notes have been duly authorized and, on the
Closing Date, will have been validly executed and delivered by the Company. When
the Initial Notes have been issued, 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 as part of a
Unit, the holders of the Initial Notes will be entitled to the benefits of the
Indenture and the Initial Notes will be valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms except
as (i) the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability. On the Closing Date, the Initial
Notes will conform to the description thereof contained in the Offering
Memorandum.
(k) The Exchange Notes have been duly authorized by the Company.
When the Exchange Notes are issued, executed and authenticated in accordance
with the terms of the Exchange Offer and the Indenture, the Exchange Notes will
be entitled to the benefits of the Indenture and will be the valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(ii) rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability. When the Exchange
Notes are issued, authenticated and delivered, the Exchange Notes will conform
to the description thereof contained in the Offering Memorandum.
15
(l) The Guarantee to be endorsed on the Initial 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
Initial Notes have been issued, executed and authenticated in accordance with
the Indenture and delivered to and paid for by the Initial Purchasers in
accordance with the terms of this Agreement as part of the Unit, the Guarantee
of each Guarantor endorsed thereon will be entitled to the benefits of the
Indenture and will be the valid and binding obligation of such Guarantor,
enforceable against such Guarantor in accordance with its terms except as (i)
the enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration and
the availability of equitable remedies may be limited by equitable principles of
general applicability. On the Closing Date, the Guarantees to be endorsed on the
Initial Notes will conform to the description thereof contained in the Offering
Memorandum.
(m) The 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 the Indenture, the Guarantee of each Guarantor endorsed
thereon will be entitled to the benefits of the Indenture and will be the valid
and binding obligation of such Guarantor, enforceable against such Guarantor in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability. When
the Exchange Notes are issued, authenticated and delivered, the Guarantees to be
endorsed on the Exchange Notes will conform to the description thereof in the
Offering Memorandum.
(n) The Notes 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 Notes Registration Rights Agreement has been duly executed
and delivered, the Notes 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 (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
16
On the Closing Date, the Notes Registration Rights Agreement will conform to the
description thereof contained in the Offering Memorandum.
(o) The Warrant Registration Rights Agreement has been duly
authorized by the Company and, on the Closing Date, will have been duly executed
and delivered by the Company. When the Warrant Registration Rights Agreement has
been duly executed and delivered, the Warrant Registration Rights Agreement will
be a valid and binding agreement of the Company, enforceable against the Company
in accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability. On the
Closing Date, the Warrant Registration Rights Agreement will conform to the
description thereof contained in the Offering Memorandum.
(p) Each of the Company and the Guarantors has duly and validly
authorized the issuance of the Initial Notes, the Guarantees and the Warrants as
Units.
(q) The Units conform to the description thereof contained in
the Offering Memorandum.
(r) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or in default in the performance
of any obligation, agreement, covenant or condition contained in any indenture,
loan agreement, mortgage, lease or other agreement or instrument that is
material to the Company and its subsidiaries, taken as a whole, to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries or their respective property is bound.
(s) The execution, delivery and performance of this Agreement
and the other Operative Documents by the Company and each of the Guarantors,
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),
(ii) conflict with or constitute a breach of any of the terms or provisions of,
or a default under, the charter or by-laws of the Company or any of its
subsidiaries or any indenture, loan agreement, mortgage, lease or other
agreement or
17
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, 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.
(t) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is or could be a
party or to which any of their respective property is or could be subject, which
could reasonably be expected to result, singly or in the aggregate, in a
Material Adverse Effect.
(u) Neither the Company nor any of its subsidiaries 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.
(v) 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.
(w) Each of the Company and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, 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
18
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
its subsidiaries 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 its subsidiaries;
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.
(x) The accountants that have certified the financial statements
and supporting schedules included in the Preliminary Offering Memorandum and the
Offering Memorandum are independent public accountants with respect to the
Company and the Guarantors, as required by the Act and the Exchange Act. The
historical financial statements, together with related schedules and notes, set
forth in the Preliminary Offering Memorandum and the Offering Memorandum comply
as to form in all material respects with the requirements applicable to
registration statements on Form S-1 under the Act.
(y) The historical financial statements, together with related
schedules and notes forming part of the Offering Memorandum (and any amendment
or supplement thereto), present fairly 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 at the respective
dates or for the respective periods to which they apply; such 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
prepared on a basis consistent with such financial statements and the books and
records of the Company.
19
(z) There are no contracts, agreements or understandings between
the Company or any Guarantor and any person granting such person the right (i)
to require the Company or such Guarantor to file a registration statement under
the Act with respect to any securities of the Company or such Guarantor except
as described in the Offering Memorandum or (ii) to require the Company or such
Guarantor to include such securities with the Notes and Guarantees registered
pursuant to any Notes Registration Statement or the Warrants or Warrant Shares
registered pursuant to any Warrant Shelf Registration Statement.
(aa) Neither the Company nor any of its subsidiaries nor any
agent thereof acting on the behalf of them has taken, and none of them will
take, any action that might cause this Agreement or the issuance or sale of the
Securities to 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.
(bb) None of the Company or any of 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 Offering Memorandum, will be, an
"investment company" as such term is defined in the Investment Company Act of
1940, as amended.
(cc) 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, any
securities of the Company or any Guarantor or (ii) has indicated to the Company
or any Guarantor that it is considering (a) the downgrading, suspension, or
withdrawal of, or any review for a possible change that does not indicate the
direction of the possible change in, any rating so assigned or (b) any change in
the outlook for any rating of the Company, any Guarantor or any securities of
the Company or any Guarantor.
(dd) 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 or any
development involving a prospective material adverse change in the condition,
financial or otherwise, or the earnings, business, management or operations of
the
20
Company and its subsidiaries, taken as a whole, (ii) there has not been any
material adverse change or any development involving a prospective material
adverse change in the capital stock or in the long-term debt of the Company or
any of its subsidiaries and (iii) neither the Company nor any of its
subsidiaries has incurred any material liability or obligation, direct or
contingent.
(ee) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its date, contains all the information specified in, and
meeting the requirements of, Rule 144A(d)(4) under the Act.
(ff) When the Securities are issued and delivered pursuant to
this Agreement, none of the Securities will be of the same class (within the
meaning of Rule 144A under the Act) as any security of the Company or the
Guarantors that is listed on a national securities exchange registered under
Section 6 of the Exchange Act or that is quoted in a United States automated
inter-dealer quotation system.
(gg) 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, including, but
not limited to, articles, notices or other communications published in any
newspaper, magazine, or similar medium or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. No securities of the same class as any of
the Securities have been issued and sold by the Company within the six-month
period immediately prior to the date hereof.
(hh) Prior to the effectiveness of any Notes Registration
Statement, the Indenture is not required to be qualified under the TIA.
(ii) 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 not to under the Act ("Regulation S") with
------------
respect to any of the Securities.
(jj) None of the Company or the Guarantors shall have taken or
omitted to take any action that shall have resulted in the Securities offered
21
and sold in reliance on Regulation S not to have been offered and sold only in
offshore transactions.
(kk) 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.
(ll) No registration under the Act of the Securities is required
for the sale of the Securities to the Initial Purchasers as contemplated hereby
or for the Exempt Resales assuming the accuracy of the Initial Purchasers'
representations and warranties and agreements set forth in Section 7 hereof.
(mm) 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, customers or suppliers of the Company or any of its
subsidiaries on the other hand, which is required by the Act to be described in
a registration statement on Form S-1 under the Act which is not so described in
the Offering Memorandum.
(nn) All indebtedness of the Company and the Guarantors or their
respective predecessors that will be repaid with the proceeds of the issuance
and sale of the Units was incurred, and the indebtedness represented by the
Initial Notes is being incurred, for proper purposes and in good faith and each
of the Company and the Guarantors or their respective predecessors was, at the
time of the incurrence of such indebtedness that will be repaid with the
proceeds of the issuance and sale of the Units, and will be on the Closing Date
(after giving effect to the application of the proceeds from the issuance of the
Units) solvent, and had at the time of the incurrence of such indebtedness that
will be repaid with the proceeds of the issuance and sale of the Units and will
have on the Closing Date (after giving effect to the application of the proceeds
from the issuance of the Units) sufficient capital for carrying on their
respective business and were, at the time of the incurrence of such indebtedness
that will be repaid with the proceeds of the issuance and sale of the Units, and
will be on the Closing Date (after giving effect to the application of the
proceeds from the issuance of the Units) able to pay their respective debts as
they mature.
(oo) The Company has provided the Initial Purchasers and counsel
for the Initial Purchasers true and correct copies of each and every agreement
(or, if an agreement has not been reduced to writing, a written enumeration of
the terms of such agreement) between and among the Company and any Related Party
(as such term is defined below), on the one hand, and Sprint PCS and any Related
22
Party on the other, including in each case any amendments and addenda thereto
and restatements thereof, as in effect on the date hereof (collectively, the
"Sprint Agreements"); and such other documents as may be necessary to interpret
-----------------
such agreements and to assess the impact thereof on the business and financial
condition of the Company. For purposes of this subparagraph and the immediately
following subparagraph, "Related Party" shall have the meaning given to such
-------------
term in the Schedule of Definitions incorporated by reference in that certain
Sprint PCS Management Agreement executed by the Company and Sprint PCS as of
January 22, 1999 (the "Sprint PCS Management Agreement").
-------------------------------
(pp) At the Closing Date, the Company will have provided the
Initial Purchasers and counsel for the Initial Purchasers a true and correct
copy of a Consent and Agreement among Sprint Spectrum L.P. and its applicable
Related Party, the Company, the administrative agent and the syndication agent
for the lenders under the Credit Agreement, including any amendments thereto and
restatements thereof, as in effect on the date thereof (the "Consent and
-----------
Agreement"); and such other documents as may be necessary to interpret such
---------
Consent and Agreement and to assess the impact thereof on the business and
financial condition of the Company.
(qq) At the Closing Date, the Company will have provided the
Initial Purchasers and counsel for the Initial Purchasers true and correct
copies of each and every agreement, instrument or other document, including
without limitation the Credit Agreement, that is or may be required for
borrowing by the Company under the Senior Financing (or, if an agreement
relating to the Senior Financing has not been reduced to writing, a written
enumeration of the terms of such agreement), including in each case any
amendments thereto and restatements thereof, as in effect on the date thereof
(collectively, the "Bank Financing Agreements"); and such other documents as may
-------------------------
be necessary to interpret such agreements, instruments or other documents and to
assess the impact thereof on the business and financial condition of the
Company.
(rr) At the Closing Date, each of the Bank Financing Agreements,
including the Consent and Agreement, (A) will have been duly authorized,
executed and delivered by, (B) constitute the valid and binding obligation of,
and (C) will be enforceable in accordance with their respective terms against,
the Company and its affiliates, to the extent each is a party thereto.
23
(ss) At the Closing Date, the Company will have provided the
Initial Purchasers and counsel for the Initial Purchasers true and correct
copies of each and every agreement, instrument or other document that is or may
be required for the Company to receive the proceeds of the Series A-1
Convertible Preferred Stock portion of the Equity Financing (or, if an agreement
relating to the Equity Financing has not been reduced to writing, a written
enumeration of the terms of such agreement), including in each case any
amendments thereto and restatements thereof, as in effect on the date thereof
(collectively, the "Equity Financing Agreements"); and such other documents as
---------------------------
may be necessary to interpret such agreements, instruments or other documents
and to assess the impact thereof on the business and financial condition of the
Company.
(tt) At the Closing Date, each of the Equity Financing Agreements
(A) will have been duly authorized, executed and delivered by, (B) constitute
the valid and binding obligation of, and (C) will be enforceable in accordance
with their respective terms against, the Company and its affiliates, to the
extent each is a party thereto.
(uu) The execution, delivery and performance of the Sprint
Agreements, the Bank Financing Agreements and the Equity Financing Agreements by
the Company and any of its affiliates that are a party thereto, the compliance
by the Company and such affiliates with all the provisions thereof and the
consummation of the transactions contemplated thereby do not (A) require any
consent, approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as have already been
obtained), (B) conflict with or constitute a breach of any of the terms or
provisions of, or a default under (or an event which with notice or lapse of
time, or both, would constitute a breach of or a default under), the certificate
of incorporation or by-laws 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, (C) 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 or (D) result in
the suspension, termination or revocation of any Authorization of the Company or
any of its subsidiaries or any other impairment of the rights of the holder of
any such Authorization.
24
(ww) Each of the Sprint Agreements (including, without
limitation, the Sprint PCS Management Agreement), the Consent and Agreement, the
Bank Financing Agreements and the Equity Financing Agreements (collectively, the
"PCS Agreements"), will be, and the PCS Agreements viewed as a whole will be,
--------------
consistent with the terms and conditions of the License (as such term is defined
in the Sprint PCS Management Agreement) and not otherwise contrary to Federal
Communications Commission policies, rules and regulations or other applicable
law, rules or regulations.
(xx) All agreements relating to the exchange of membership
interests in Illinois PCS, LLC for Common Stock and pursuant to which Illinois
PCS, LLC is to be merged with and into iPCS Wireless, Inc. (the "Plan of
-------
Reorganization") have been duly authorized, executed and delivered by the
--------------
parties thereto and each of them constitutes the legal, valid and binding
obligations of such parties, and, at the Closing Date, the transactions
contemplated by the Plan of Reorganization shall have been consummated in all
respects in accordance with the terms of the Plan of Reorganization.
(yy) Each certificate signed by any officer of the Company or any
Guarantor and delivered to the Initial Purchasers or counsel for the Initial
Purchasers shall be deemed to be a representation and warranty by the Company or
such Guarantor to the Initial Purchasers as to the matters covered thereby.
The Company acknowledges that the Initial Purchasers and, for purposes
of the opinions to be delivered to the Initial Purchasers pursuant to Section 9
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.
7. Initial Purchasers' Representations and Warranties. Each of the
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Initial Purchasers, severally and not jointly, represents and warrants to, and
agrees with, the Company and the Guarantors:
(a) Such Initial Purchaser is either a QIB or an Accredited
Institution, in either case, with such knowledge and experience in financial and
business matters as is necessary in order to evaluate the merits and risks of an
investment in the Securities.
25
(b) Such Initial Purchaser (A) is not acquiring the Securities
with a view to any distribution thereof or with any present intention of
offering or selling any of the Securities in a transaction that would violate
the Act or the securities laws of any state of the United States or any other
applicable jurisdiction and (B) will be reoffering and reselling the Securities
only to (y) QIBs in reliance on the exemption from the registration requirements
of the Act provided by Rule 144A and (z) in offshore transactions in reliance
upon Regulation S under the Act.
(c) Such Initial Purchaser agrees that no form of general
solicitation or general advertising (within the meaning of Regulation D under
the Act) has been or will be used by such Initial Purchaser or any of its
representatives in connection with the offer and sale of the Securities pursuant
hereto, including, but not limited to, articles, notices or other communications
published in any newspaper, magazine or similar medium or broadcast over
television or radio, or any seminar or meeting whose attendees have been invited
by any general solicitation or general advertising.
(d) Such Initial Purchaser agrees that, in connection with
Exempt Resales, such Initial Purchaser will solicit offers to buy the Securities
only from, and will offer to sell the Securities only to, Eligible Purchasers.
Each Initial Purchaser further agrees that it will offer to sell the Securities
only to, and will solicit offers to buy the Securities only from (A) Eligible
Purchasers that the Initial Purchasers reasonably believes are QIBs and (B)
Regulation S Purchasers, in each case, that agree that (x) the Securities
purchased by them may be resold, pledged or otherwise transferred within the
time period referred to under Rule 144(k) (taking into account the provisions of
Rule 144(d) under the Act, if applicable) under the Act, as in effect on the
date of the transfer of such Securities, only (I) to the Company or any of its
subsidiaries, (II) to a person whom the seller reasonably believes is a QIB
purchasing for its own account or for the account of a QIB in a transaction
meeting the requirements of Rule 144A under the Act, (III) in an offshore
transaction (as defined in Rule 902 under the Act) meeting the requirements of
Rule 904 of the Act, (IV) in a transaction meeting the requirements of Rule 144
under the Act, (V) to an Accredited Institution that, prior to such transfer,
furnishes the Trustee a signed letter containing certain representations and
agreements relating to the registration of transfer of such Securities and, if
such transfer is in respect of an aggregate principal amount of Initial Notes
less than $250,000 or any Units, Warrants or Warrant Shares, an opinion of
counsel acceptable to the Company that such transfer is in compliance with the
Act, (VI) in accordance with another exemption from the registration
requirements of the Act (and based upon an opinion
26
of counsel acceptable to the Company) or (VII) pursuant to an effective
registration statement and, in each case, in accordance with the applicable
securities laws of any state of the United States or any other applicable
jurisdiction and (y) they will deliver to each person to whom such Securities or
an interest therein is transferred a notice substantially to the effect of the
foregoing.
(e) Such Initial Purchaser and its affiliates or any person
acting on its or their behalf have not engaged or will not engage in any
directed selling efforts within the meaning of Regulation S with respect to the
Securities.
(f) The Securities offered and sold by such Initial Purchaser
pursuant hereto in reliance on Regulation S have been and will be offered and
sold only in offshore transactions.
(g) The sale of the Securities offered and sold by such Initial
Purchaser pursuant hereto in reliance on Regulation S is not part of a plan or
scheme to evade the registration provisions of the Act.
(h) Such Initial Purchaser agrees that it has not offered or
sold and will not offer or sell the Securities in the United States or to, or
for the benefit or account of, a U.S. Person (other than a distributor), in each
case, as defined in Rule 902 under the Act (i) as part of its distribution at
any time and (ii) otherwise until 40 days after the later of the commencement of
the offering of the Units pursuant hereto and the Closing Date, other than in
accordance with Regulation S of the Act or another exemption from the
registration requirements of the Act. Such Initial Purchaser agrees that, during
such 40-day restricted period, it will not cause any advertisement with respect
to the Securities (including any "tombstone" advertisement) to be published in
any newspaper or periodical or posted in any public place and will not issue any
circular relating to the Securities, except such advertisements as permitted by
and include the statements required by Regulation S.
(i) Such Initial Purchaser agrees that, at or prior to
confirmation of a sale of Securities by it to any distributor, dealer or person
receiving a selling concession, fee or other remuneration during the 40-day
restricted period referred to in Rule 903(c)(3) under the Act, it will send to
such distributor, dealer or person receiving a selling concession, fee or other
remuneration a confirmation or notice to substantially the following effect:
"The securities covered hereby have not been registered under the
U.S. Securities Act of 1933, as amended (the "Securities
----------
27
Act"), and may not be offered and sold within the United States
---
or to, or for the account or benefit of, U.S. persons (i) as part
of your distribution at any time or (ii) otherwise until 40 days
after the later of the commencement of the Offering and the
Closing Date, except in either case in accordance with Regulation
S under the Securities Act (or Rule 144A or to Accredited
Institutions in transactions that are exempt from the
registration requirements of the Securities Act), and in
connection with any subsequent sale by you of the Securities
covered hereby in reliance on Regulation S during the period
referred to above to any distributor, dealer or person receiving
a selling concession, fee or other remuneration, you must deliver
a notice to substantially the foregoing effect. Terms used above
have the meanings assigned to them in Regulation S."
(j) Such Initial Purchaser agrees that the Securities offered
and sold in reliance on Regulation S will be represented upon issuance by global
securities that may not be exchanged for definitive securities until the
expiration of the 40-day restricted period referred to in Rule 903(e)(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.
Such Initial Purchaser acknowledges that the Company and the
Guarantors and, for purposes of the opinions to be delivered to each Initial
Purchaser pursuant to Section 9 hereof, counsel to the Company and the
Guarantors and counsel to the Initial Purchaser will rely upon the accuracy and
truth of the foregoing representations and such Initial Purchaser hereby
consents to such reliance.
8. Indemnification.
---------------
(a) The Company and each Guarantor agree, jointly and severally,
to indemnify and hold harmless each Initial Purchaser, its directors, its
officers and each person, if any, who controls such Initial Purchaser within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and judgments
(including, without limitation, any legal or other expenses incurred in
connection with investigating or defending any matter, including any action,
that could give rise to
28
any such losses, claims, damages, liabilities or judgments) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Offering Memorandum (or any amendment or supplement thereto), the Preliminary
Offering Memorandum or any Rule 144A Information provided by the Company or any
Guarantor to any holder or prospective purchaser of Securities pursuant to
Section 5(h) or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or judgments are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to the
Initial Purchaser furnished in writing to the Company by such Initial Purchaser
(and not with respect to the information provided by any other Initial
Purchaser); provided, however, that the foregoing indemnity agreement with
respect to any Preliminary Offering Memorandum shall not inure to the benefit of
any Initial Purchaser who failed to deliver a Final Offering Memorandum, as then
amended or supplemented, (so long as the Final Offering Memorandum and any
amendment or supplement thereto was provided by the Company to the several
Initial Purchasers in the requisite quantity and on a timely basis to permit
proper delivery on or prior to the Closing Date) to the person asserting any
losses, claims, damages, liabilities or judgements caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Offering Memorandum, or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, if such material misstatement or
omission or alleged material misstatement or omission was cured in the Final
Offering Memorandum, as so amended or supplemented.
(b) Each Initial Purchaser, severally and not jointly, agrees to
indemnify and hold harmless the Company and the Guarantors, and their respective
directors and officers and each person, if any, who controls (within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act) the Company or the
Guarantors, to the same extent as the foregoing indemnity from the Company and
the Guarantors to the Initial Purchasers but only with reference to information
relating to the Initial Purchaser furnished in writing to the Company by the
Initial Purchaser (and not with respect to the information provided by any other
Initial Purchaser) expressly for use in the Preliminary Offering Memorandum or
the Offering Memorandum.
(c) In case any action shall be commenced involving any person
in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b)
(the "indemnified party"), the indemnified party shall promptly notify the
-----------------
person
29
against whom such indemnity may be sought (the "indemnifying party") in writing
------------------
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), the Initial Purchasers shall not be required to
assume the defense of such action pursuant to this Section 8(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
the Initial Purchasers). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by DLJ, in the case of the parties indemnified pursuant to Section
8(a), and by the Company, in the case of parties indemnified pursuant to Section
8(b). The indemnifying party shall indemnify and hold harmless the indemnified
party from and against any and all losses, claims, damages, liabilities and
judgments by reason of any settlement of any action (i) effected with its
written consent or (ii) effected without its written consent if the settlement
is entered into more than twenty business days after the indemnifying party
shall have received a request from the indemnified party for reimbursement for
the fees and expenses of counsel (in any case where such fees and expenses are
at the expense of the indemnifying party) and, prior to the date of such
settlement, the indemnifying party shall have failed to comply with such
reimbursement request. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened
action in respect of which the indemnified party is or
30
could have been a party and indemnity or contribution may be or could have been
sought hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this
Section 8 is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Initial Purchasers on the
other hand from the offering of the Units or (ii) if the allocation provided by
clause 8(d)(i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
8(d)(i) above but also the relative fault of the Company and the Guarantors, on
the one hand, and the Initial Purchasers, on the other hand, in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Guarantors, on the one hand and the Initial Purchasers, on the other hand, shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Units (after underwriting discounts and commissions, but before
deducting expenses) received by the Company, and the total discounts and
commissions received by the Initial Purchasers bear to the total price to
investors of the Units. The relative fault of the Company and the Guarantors, on
the one hand, and the Initial Purchasers, on the other hand, shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or the Guarantors,
on the one hand, or the Initial Purchasers, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company, the Guarantors and the Initial Purchasers agree that
it would not be just and equitable if contribution pursuant to this Section 8(d)
were determined by pro rata allocation (even if the Initial Purchasers were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding
31
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 8, the Initial
Purchasers shall not be required to contribute any amount in excess of the
amount by which the total discounts and commissions received by such Initial
Purchasers exceeds the amount of any damages which the Initial Purchasers has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Initial Purchasers' obligations to contribute pursuant to
this Section 8(d) are several in proportion to the respective number of Units
purchased by each of the Initial Purchasers hereunder and not joint.
(e) The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
9. Conditions of Initial Purchasers' Obligations. The obligations
---------------------------------------------
of the Initial Purchaser to purchase the Units under this Agreement are subject
to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and
the Guarantors contained in this Agreement that are qualified as to "Material
Adverse Effect" or other measure of materiality shall be true and correct, and
all of the representations and warranties of the Company and the Guarantors that
are not so qualified shall be true and correct in all material respects, on the
Closing Date with the same force and effect as if made on and as of the Closing
Date.
(b) On or after the date hereof, (i) there shall not have
occurred any downgrading, suspension or withdrawal of, nor shall any notice have
been given of any potential or intended downgrading, suspension or withdrawal
of, or of any review (or of any potential or intended review) for a possible
change that does not indicate the direction of the possible change in, any
rating of the Company or any Guarantor or any securities of the Company or any
Guarantor (including, without limitation, the placing of any of the foregoing
ratings on credit watch with negative or developing implications or under review
with an uncertain direction) by
32
any "nationally recognized statistical rating organization" as such term is
defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have
occurred any change, nor shall any notice have been given of any potential or
intended change, in the outlook for any rating of the Company or any Guarantor
or any securities of the Company or any Guarantor by any such rating
organization and (iii) no such rating organization shall have given notice that
it has assigned (or is considering assigning) a lower rating to any of the
Securities than that on which the Units were marketed.
(c) 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 shall not have occurred any change or any development
involving a prospective change in the condition, financial or otherwise, or the
earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there shall not have been any change or any
development involving a prospective change in the capital stock or in the long-
term debt of the Company or any of its subsidiaries and (iii) neither the
Company nor any of its subsidiaries shall have incurred any liability or
obligation, direct or contingent, the effect of which, in any such case
described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market the
Securities on the terms and in the manner contemplated in the Offering
Memorandum.
(d) You shall have received on the Closing Date a certificate
dated the Closing Date, signed by the Chief Executive Officer and the Chief
Financial Officer of the Company and each of the Guarantors, confirming the
matters set forth in Sections 6(dd), 9(a) and 9(b) and stating that each of the
Company and the Guarantors has complied with all the agreements and satisfied
all of the conditions herein contained and required to be complied with or
satisfied on or prior to the Closing Date.
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Initial Purchasers), dated the Closing
Date, of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company and the Guarantors, to
the effect that:
(i) each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation and
has the corporate power and authority to
33
carry on its business as described in the Offering Memorandum and
to own, lease and operate its properties;
(ii) each of the Company and its subsidiaries is duly
qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction that is listed on
a schedule to such opinion;
(iii) all the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are
fully paid, nonassessable and not subject to any preemptive or
similar rights;
(iv) all of the outstanding shares of capital stock of each
of the Company's subsidiaries have been duly authorized and
validly issued and are fully paid and nonassessable, and are
owned by the Company, free and clear of any Lien, except as
provided in the Credit Agreement;
(v) the Warrant Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its
terms except as (x) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (y) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability;
(vi) the Warrants have been duly authorized and, when
executed by the Company in accordance with the provisions of the
Warrant Agreement 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 its terms except as (x) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (y) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability;
34
(vii) the Warrant Shares have been duly and validly
authorized for issuance by the Company and, when issued pursuant
to the terms of the Warrants and the Warrant Agreement, will be
validly issued, fully paid, nonassessable and not subject to any
preemptive or similar rights;
(viii) the Indenture has been duly authorized, executed and
delivered by the Company and each Guarantor and is 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 (x) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (y) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability;
(ix) the Initial Notes have been duly authorized 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 entitled to the benefits of the Indenture and will be valid
and binding obligations of the Company, enforceable against the
Company in accordance with their terms except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (y)
rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability;
(x) the Guarantees have been duly authorized and, when
the Initial Notes are 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, the holders of the Guarantees endorsed thereon
will be entitled to the benefits of the Indenture and the
Guarantees will be valid and binding obligations of the
Guarantors, enforceable against each of the Guarantors in
accordance with their terms except as (x) the enforceability
thereof may be limited by bankruptcy,
35
insolvency or similar laws affecting creditors' rights generally
and (y) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability;
(xi) each of the Company and the Guarantors has duly and
validly authorized the issuance of the Initial Notes, the
Guarantees and Warrants as Units.
(xii) this Agreement has been duly authorized, executed and
delivered by the Company and the Guarantors;
(xiii) the Notes Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and the
Guarantors and is 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 (x) the
enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (y)
rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability;
(xiv) the Warrant Registration Rights Agreement has been
duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (y)
rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability;
(xv) the Exchange Notes have been duly authorized;
(xvi) the statements under the captions "The Sprint PCS
Agreements," "Description of Our Indebtedness," "The
Reorganization," "Regulation of the Wireless Industry,"
"Description of Units," "Description of Notes," "Description of
Warrants," "Description of Capital Stock" and "Certain
36
United States Federal Income Tax Considerations" in the Offering
Memorandum, insofar as such statements constitute a summary of
the legal matters, documents or proceedings referred to therein,
fairly present in all material respects such legal matters,
documents and proceedings;
(xvii) 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 as shall already have been obtained and
such as may be required under the securities or Blue Sky laws of
the various states), (ii) conflict with or constitute a breach of
any of the terms or provisions of, or a default under, the
charter or by-laws of the Company or any of its subsidiaries or
any indenture, loan agreement, mortgage, lease or other agreement
or instrument that is listed on an exhibit to such counsel's
opinion, which exhibit shall include the documents identified in
an officer's certificate delivered to the Initial Purchasers
certifying that such exhibit identifies all such documents (the
"Material Documents") that are 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, or (iv) result in the
imposition or creation of (or the obligation to create or impose)
a Lien under, any Material Document;
(xviii) each of the Bank Financing Agreements (A) has been
duly authorized, executed and delivered by, (B) constitutes the
valid and binding obligation of, and (C) is enforceable in
accordance with its terms against (except as (x) the
enforceability thereof may be limited by bankruptcy,
37
insolvency or similar laws affecting creditors' rights generally
and (y) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability), the Company and its affiliates, to the extent
each is a party thereto;
(xix) each of the Equity Financing Agreements (A) has been
duly authorized, executed and delivered by, (B) constitutes the
valid and binding obligation of, and (C) is enforceable in
accordance with its terms against (except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (y)
rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability),
the Company and its affiliates, to the extent each is a party
thereto;
(xx) the execution, delivery and performance of the Bank
Financing Agreements and the Equity Financing Agreements by the
Company and any of its affiliates that are a party thereto, the
compliance by the Company and such affiliates with all the
provisions thereof and the consummation of the transactions
contemplated thereby do not (A) require any consent, approval,
authorization or other order of, or qualification with, any court
or governmental body or agency (except such as have already been
obtained), (B) conflict with or constitute a breach of any of the
terms or provisions of, or a default under (or an event which
with notice or lapse of time, or both, would constitute a breach
of or a default under), the certificate of incorporation or by-
laws of the Company or any of its subsidiaries or any Material
Document, or (C) 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;
(xxi) none of the Company or the Guarantors is 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 be, an "investment company" as
38
such term is defined in the Investment Company Act of 1940, as
amended;
(xxii) the Indenture complies as to form in all material
respects with the requirements of the TIA, and the rules and
regulations of the Commission applicable to an indenture which is
qualified thereunder. 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 or in
connection with the Exempt Resales to qualify the Indenture under
the TIA.
(xxiii) no registration under the Act of the Securities is
required for the sale of the Securities to the Initial Purchasers
as contemplated by this Agreement or for the Exempt Resales
assuming that (i) each Initial Purchaser is a QIB or an
Accredited Institution, (ii) the accuracy of, and compliance
with, the Initial Purchasers' representations and agreements
contained in Section 7 of this Agreement, and (iii) the accuracy
of the representations of the Company and the Guarantors set
forth in the sections of this Agreement specified in such
opinion.
(xxiv) nothing has led such counsel to believe that, as of
the date of the Offering Memorandum or as of the Closing Date,
the Offering Memorandum, as amended or supplemented, if
applicable (except for the financial statements and other
financial data included therein, as to which such counsel need
not express any belief) contains any untrue statement of a
material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
The opinion referred to in clauses (xvi) (but only with respect to
"Description of Our Indebtedness") and (xxii) (but only with respect to the Bank
Financing Agreements) may be given in an opinion (satisfactory to you and
counsel for the Initial Purchasers), dated the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇,
counsel to the Company and the Guarantors. The opinion of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
described in Section 9(e) above and the opinion of ▇▇▇▇▇ ▇▇▇▇▇ shall be rendered
to you at the
39
request of the Company and the Guarantors and shall so state therein. In giving
such opinion with respect to the matters covered by Section 9(e)(xxiv), ▇▇▇▇▇,
▇▇▇▇▇ & ▇▇▇▇▇ may state that their opinion and belief are based upon their
participation in the preparation of the Offering Memorandum and any amendments
or supplements thereto and review and discussion of the contents thereof, but
are without independent check or verification except as specified.
(f) The Initial Purchasers shall have received on the Closing
Date an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
(Illinois), counsel for the Initial Purchasers, in form and substance reasonably
satisfactory to the Initial Purchasers.
(g) The Initial Purchasers shall have received, at the time this
Agreement is executed and at the Closing Date, letters dated the date hereof or
the Closing Date, as the case may be, in form and substance satisfactory to the
Initial Purchasers from Deloitte & Touche LLP, independent public accountants,
containing the information and statements of the type ordinarily included in
accountants' "comfort letters" to the Initial Purchasers with respect to the
financial statements and certain financial information contained in the Offering
Memorandum.
(h) The Initial Notes and Warrants as Units shall have been
approved by the NASD for trading and duly listed in PORTAL.
(i) The Initial Purchasers shall have received a counterpart,
conformed as executed, of the Indenture which shall have been entered into by
the Company, the Guarantors and the Trustee.
(j) The Initial Purchasers shall have received a counterpart,
conformed as executed, of the Warrant Agreement which shall have been entered
into by the Company and the Warrant Agent.
(k) The Company and the Guarantors shall have executed the Notes
Registration Rights Agreement and the Initial Purchasers shall have received an
original copy thereof, duly executed by the Company and the Guarantors.
(l) The Company shall have executed the Warrant Registration
Rights Agreement and the Initial Purchasers shall have received an original copy
thereof, duly executed by the Company.
40
(m) The Company and its subsidiaries shall have entered into
Bank Financing Agreements on terms and conditions deemed satisfactory by the
Initial Purchasers, in their sole discretion, after giving due consideration to
the surrounding circumstances, the capital necessary to finance the Company's
business plan and such other factors as the Initial Purchasers shall deem
relevant.
(n) The Company shall have entered into Equity Financing
Agreements on terms and conditions deemed satisfactory by the Initial
Purchasers, in its sole discretion, after giving due consideration to the
surrounding circumstances, the capital necessary to finance the Company's
business plan and such other factors as the Initial Purchasers shall deem
relevant.
(o) The Company shall have received the proceeds from the
issuance of at least $50.0 million of equity pursuant to the Equity Financing
Agreements and shall have provided evidence thereof reasonably satisfactory to
the Initial Purchasers.
(p) The acquisition of network assets in Michigan as described
in the Offering Memorandum shall have been completed and the Company shall have
provided evidence thereof reasonably satisfactory to the Initial Purchasers.
(q) The Company shall have delivered evidence reasonably
satisfactory to the Initial Purchasers and counsel for the Initial Purchasers
that the transactions contemplated by the Plan of Reorganization have been
consummated in all respects in accordance with the terms of such Plan of
Reorganization.
(r) Neither the Company nor the Guarantors shall have failed at
or prior to the Closing Date to perform or comply with any of the agreements
herein contained in all material respects and required to be performed or
complied with by the Company or the Guarantors, as the case may be, at or prior
to the Closing Date.
10. Effectiveness of Agreement and Termination. This Agreement shall
------------------------------------------
become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the
Closing Date by the Initial Purchasers by written notice to the Company if any
of the following has occurred: (i) any outbreak or escalation of hostilities or
other national
41
or international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in the Initial
Purchasers' judgment, is material and adverse and, in the Initial Purchasers'
judgment, makes it impracticable to market the Securities on the terms and in
the manner contemplated in the Offering Memorandum, (ii) the suspension or
material limitation of trading in securities or other instruments on the New
York Stock Exchange, the American Stock Exchange, the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade or the
Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company or any Guarantor on any
exchange or in the over-the-counter market, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your opinion
materially and adversely affects, or will materially and adversely affect, the
business, prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole, (v) the declaration of a banking
moratorium by either federal or New York State authorities or (vi) the taking of
any action by any federal, state or local government or agency in respect of its
monetary or fiscal affairs which in your opinion has a material adverse effect
on the financial markets in the United States.
If on the Closing Date any one or more of the Initial Purchasers shall
fail or refuse to purchase the Units which it or they have agreed to purchase
hereunder on such date and the number of the Units which such defaulting Initial
Purchaser or Initial Purchasers, as the case may be, agreed but failed or
refused to purchase is not more than one-tenth of the number of Units to be
purchased on such date by all Initial Purchasers, each non-defaulting Initial
Purchaser shall be obligated severally, in the proportion which the number of
the Units set forth opposite its name in Schedule A bears to the number of the
Units which all the non-defaulting Initial Purchasers, as the case may be, have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Units which such defaulting Initial Purchaser or Initial Purchasers, as the
case may be agreed but failed or refused to purchase on such date; provided that
in no event shall the number of the Units which any Initial Purchaser has agreed
to purchase pursuant to Section 2 hereof be increased pursuant to this Section
10 by an amount in excess of one-ninth of such number of the Units without the
written consent of such Initial Purchaser. If on the Closing Date any Initial
Purchaser or Initial Purchasers shall fail or refuse to purchase the Units and
the number of the Units with respect to which such default occurs is more than
one-tenth of the aggregate number of the Units to be purchased by all Initial
Purchasers and arrangements satisfactory to the Initial Purchasers and the
Company for purchase of such Units are not made within 48 hours after such
default, this Agreement will
42
terminate without liability on the part of any non-defaulting Initial Purchaser
and the Company. In any such case which does not result in termination of this
Agreement, either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Offering Memorandum or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Initial Purchaser from liability in respect of any
default of any such Initial Purchaser under this Agreement.
11. Miscellaneous. Notices given pursuant to any provision of this
-------------
Agreement shall be addressed as follows: (i) if to the Company or any
Guarantor, to iPCS, Inc., ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: President, and (ii) if to the Initial Purchasers, c/▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Syndicate Department, or in any case to such other address as
the person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, the Guarantors and the Initial
Purchasers set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Securities, regardless of (i) any investigation, or statement as to the
results thereof, made by or on behalf of the Initial Purchasers, the officers or
directors of the Initial Purchasers, any person controlling the Initial
Purchasers, the Company, any Guarantor, the officers or directors of the Company
or any Guarantor, or any person controlling the Company or any Guarantor, (ii)
acceptance of the Securities and payment for them hereunder and (iii)
termination of this Agreement.
If for any reason the Securities are not delivered by or on behalf of
the Company as provided herein (other than as a result of any termination of
this Agreement pursuant to Section 10), the Company and each Guarantor, jointly
and severally, agree to reimburse the Initial Purchasers for all out-of-pocket
expenses (including the fees and disbursements of counsel) incurred by the
Initial Purchasers. Notwithstanding any termination of this Agreement, the
Company shall be liable for all expenses which it has agreed to pay pursuant to
Section 5(i) hereof. The Company and each Guarantor also agree, jointly and
severally, to reimburse the Initial Purchasers and their respective officers,
directors and each person, if any, who controls such Initial Purchaser within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act for any
and all fees and expenses (including without limitation the fees and expenses of
counsel) incurred by them in connection with enforcing their rights under this
Agreement (including without limitation its rights under Section 8).
43
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Guarantors,
the Initial Purchasers, the Initial Purchasers' directors and officers, any
controlling persons referred to herein, the directors of the Company and the
Guarantors and their respective successors and assigns, all as and to the extent
provided in this Agreement, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" shall
not include a purchaser of any of the Securities from the Initial Purchasers
merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
44
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Guarantors and the Initial Purchasers.
Very truly yours,
iPCS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief
Executive Officer
iPCS EQUIPMENT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief
Executive Officer
iPCS WIRELESS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief
Executive Officer
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
TD SECURITIES (USA) INC.
By: ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
45
Title: Senior Vice President
SCHEDULE A
Number
------
Initial Purchasers of Units
------------------ --------
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation............... 255,000
TD Securities (USA) Inc................... 45,000
-------
Total................................ 300,000
=======
S-1
EXHIBIT A
Form of Notes Registration Rights Agreement
EXHIBIT B
Form of Warrant Registration Rights Agreement