EXHIBIT 2.4
$650,000,000
▇▇▇▇▇▇ COMMUNICATIONS CORPORATION
8-7/8% SENIOR NOTES DUE 2013
PURCHASE AGREEMENT
September 12, 2003
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇ Communications Corporation, an Oklahoma corporation (the
"COMPANY"), proposes to issue and sell (the "OFFERING") to the several Initial
Purchasers named in Schedule I hereto (the "INITIAL PURCHASERS"), for whom you
(the "REPRESENTATIVES") are acting as representatives, $650,000,000 in aggregate
principal amount of its 8-7/8% Senior Notes due 2013 (the "NOTES") pursuant to
the terms of an indenture (the "INDENTURE"), to be dated as of September 26,
2003, between the Company and The Bank of Oklahoma, as trustee (the "TRUSTEE").
Capitalized terms used but not defined herein shall have the meanings specified
therefor in the Offering Memorandum (as defined below).
The Notes will be offered and sold to the Initial Purchasers pursuant
to an exemption from the registration requirements under the Securities Act of
1933, as amended (the "SECURITIES ACT"). The Company has prepared a preliminary
offering memorandum, dated September 8, 2003 (the "PRELIMINARY OFFERING
MEMORANDUM") and will prepare a final offering memorandum, to be dated September
12, 2003 (the "OFFERING MEMORANDUM," and, together with the Preliminary Offering
Memorandum, the "OFFERING DOCUMENTS"), relating to the Company and the Notes.
The Initial Purchasers may make offers of the Notes purchased hereunder
on the terms set forth in the Offering Memorandum, as amended or supplemented,
solely to (i) persons whom you reasonably believe to be "qualified institutional
buyers" as defined in Rule 144A under the
Securities Act ("QUALIFIED INSTITUTIONAL BUYERS") and (ii) outside the United
States to persons other than U.S. Persons in offshore transactions meeting the
requirements of Regulation S under the Securities Act ("REGULATION S") (such
persons specified in clauses (i) and (ii) being referred to herein as the
"ELIGIBLE PURCHASERS"). As used herein, the terms "offshore transaction,"
"United States" and "U.S. person" have the respective meanings given to them in
Regulation S. The Initial Purchasers represent that they intend initially to
offer the Notes to Eligible Purchasers at the price specified on the cover page
of the Offering Memorandum. Thereafter, the offering price may be changed at any
time without notice.
Holders (including subsequent transferees) of the Notes will have the
registration rights set forth in the registration rights agreement (the
"REGISTRATION RIGHTS AGREEMENT"), to be dated as of September 26, 2003, between
the Company and the Representatives on behalf of the Initial Purchasers, for so
long as such Notes constitute Transfer Restricted Securities (as defined in the
Registration Rights Agreement). Pursuant to the Registration Rights Agreement,
the Company will agree to file with the Securities and Exchange Commission (the
"COMMISSION") under the circumstances set forth therein (i) a registration
statement under the Securities Act (the "EXCHANGE OFFER REGISTRATION STATEMENT")
relating to the Company's 8-7/8% Senior Notes due 2013 (the "EXCHANGE NOTES") to
be offered in exchange for the Notes (such offer to exchange being referred to
collectively as the "EXCHANGE OFFER") and (ii) if required by the terms of the
Registration Rights Agreement, a shelf registration statement pursuant to Rule
415 under the Securities Act (the "SHELF REGISTRATION STATEMENT") relating to
the resale by certain holders of the Notes, and to use their best efforts to
cause such Registration Statements to be declared effective. This Agreement, the
Notes, the Exchange Notes, the Indenture and the Registration Rights Agreement
are hereinafter referred to collectively as the "OPERATIVE DOCUMENTS". This is
to confirm the agreements concerning the purchase of the Notes from the Company
by the Initial Purchasers.
SECTION 1. Representations, Warranties and Agreements of the Company.
The Company represents and warrants to, and agree with the Initial Purchasers
that, as of the date hereof:
(a) Subject to compliance by the Initial Purchasers with the
representations and warranties set forth in Section 2 hereof and with
the procedures set forth in Section 7 hereof, it is not necessary in
connection with the offer, sale and delivery of the Notes to the
Initial Purchasers and to each Eligible Purchaser in the manner
contemplated by this Agreement and the Offering Memorandum to register
the Notes under the Securities Act or, until such time as the Exchange
Notes are issued pursuant to an effective registration statement, to
qualify the Indenture under the Trust Indenture Act of ▇▇▇▇ (▇▇▇ "▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇," which term, as used herein, includes the rules and
regulations of the Commission promulgated thereunder).
(b) The Company has not, directly or indirectly, solicited any
offer to buy or offered to sell, or will, directly or indirectly,
solicit any offer to buy or offer to sell, in the United States or to
any United States citizen or resident, any security which is or would
be integrated with the sale of the Notes in a manner that would require
the Notes and to be registered under the Securities Act. None of the
Company, their respective affiliates
2
(as such term is defined in Rule 501 under the Securities Act (each, an
"AFFILIATE")), or any person acting on any of their behalf (other than
the Initial Purchasers, as to whom the Company makes no representation
or warranty) has engaged or will engage, in connection with the
offering of the Notes, in any form of general solicitation or general
advertising within the meaning of Rule 502 under the Securities Act.
With respect to those Notes sold in reliance upon Regulation S, (i)
none of the Company and its respective Affiliates or any person acting
on any of their behalf (other than the Initial Purchasers, as to whom
the Company makes no representation or warranty) has engaged or will
engage in any directed selling efforts within the meaning of Regulation
S and (ii) the Company and its respective Affiliates and any person
acting on any of their behalf (other than the Initial Purchasers, as to
whom the Company makes no representation or warranty) has complied and
will comply with the offering restrictions set forth in Regulation S.
The Company is a "reporting issuer" as defined in Rule 902 under the
Securities Act.
(c) The Notes are eligible for resale pursuant to Rule 144A
and will not be, at the Closing Date, of the same class as securities
listed on a national securities exchange registered under Section 6 of
the Exchange Act or quoted in a U.S. automated interdealer quotation
system.
(d) The Preliminary Offering Memorandum as of its date did
not, and the Offering Memorandum at the date hereof, does not, and at
the Closing Date (as defined herein), will not, contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the representations
and warranties set forth in this Section 1(d) do not apply to
statements or omissions in the Offering Documents based upon
information furnished to the Company in writing by or on behalf of the
Initial Purchasers expressly for use therein. No order preventing the
use of any of the Offering Documents, or any amendment or supplement
thereto, or any order asserting that any of the transactions
contemplated by this Agreement are subject to the registration
requirements of the Securities Act of 1933 or any state securities or
blue sky laws has been issued.
(e) This Agreement has been duly authorized, executed and
delivered by the Company and (assuming the due authorization, execution
and delivery thereof by the other parties thereto) constitutes the
legal, valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, except where (i) the
enforceability hereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
now or hereafter in effect relating to rights of creditors and other
obligees generally, (ii) the remedy of specific performance and other
forms of equitable relief may be subject to certain equitable defenses
and principles and to the discretion of the court before which the
proceedings may be brought and (iii) rights to indemnity and
contribution hereunder may be limited by applicable law and public
policy.
3
(f) The Registration Rights Agreement has been duly authorized
by the Company and when duly executed and delivered by the Company
(assuming due execution and delivery by the Initial Purchasers), will
constitute a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except
where (i) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws now or hereafter in effect relating to rights of creditors
and other obligees generally, (ii) the remedy of specific performance
and other forms of equitable relief may be subject to certain equitable
defenses and principles and to the discretion of the court before which
the proceedings may be brought and (iii) rights to indemnity and
contribution thereunder may be limited by applicable law and public
policy. Pursuant to the Registration Rights Agreement, the Company will
agree to file with the Commission, under the circumstances set forth
therein, (i) an Exchange Offer Registration Statement and (ii) to the
extent required by the Registration Rights Agreement, a Shelf
Registration Statement, and in each case, to use its best efforts to
cause such registration statements to be declared effective as soon as
practicable and in any event by the date specified in the Registration
Rights Agreement.
(g) The Notes to be purchased by the Initial Purchasers from
the Company are in the form contemplated by the Indenture, have been
duly authorized for issuance and sale pursuant to this Agreement and
the Indenture and, at the Closing Date, will have been duly executed by
the Company and, when authenticated in the manner provided for in the
Indenture and delivered against payment of the purchase price therefor,
will constitute valid and binding agreements of the Company,
enforceable in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights
and remedies of creditors or by general equitable principles and will
be entitled to the benefits of the Indenture. The Exchange Notes have
been duly and validly authorized for issuance by the Company, and when
issued and authenticated in accordance with the terms of the Indenture,
and issued against surrender of the Notes as contemplated by the
Registration Rights Agreement and the Exchange Offer, will constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium, or similar laws relating to or affecting enforcement of the
rights and remedies of creditors or by general principles of equity and
will be entitled to the benefits of the Indenture.
(h) The Indenture has been duly authorized by the Company and,
when duly executed by the proper officers of the Company (assuming due
execution and delivery by the Trustee) and delivered by the Company,
will constitute a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and general equitable principles
(whether considered in a proceeding in equity or at law); no
qualification of the Indenture under the Trust Indenture Act of 1939,
as amended (the "TRUST INDENTURE ACT"), is required in connection with
the rules and regulations of the
4
Commission, and the Indenture, when executed and delivered, will
conform in all material respects to the description thereof contained
in the Offering Memorandum.
(i) The Notes, the Exchange Notes and the Indenture will
conform in all material respects to the respective statements relating
thereto contained in the Offering Memorandum.
(j) KPMG LLP, who have expressed their opinions with respect
to the audited financial statements (which term as used in this
Agreement includes the related notes thereto) of each of the Company
and American Cellular Corporation included or incorporated by reference
in the Offering Memorandum, are independent public accountants with
respect to each of the Company and American Cellular Corporation within
the meaning of Regulation S-X under the Exchange Act.
(k) The financial statements, together with the related notes,
included in or incorporated by reference the Offering Memorandum
present fairly the consolidated financial position of each of the
Company and its subsidiaries and American Cellular Corporation and its
subsidiaries, as the case may be, as of and at the dates indicated and
the results of their operations and cash flows for the periods
specified. Such financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis throughout the periods involved, except as may be expressly
stated in the related notes thereto. The financial data set forth in
the Offering Memorandum under the captions "Summary - Summary
Historical, Pro Forma and as Adjusted Consolidated Financial and Other
Data" and "Selected Consolidated Financial and Other Data" fairly
present the information set forth therein on a basis consistent with
that of the audited and unaudited financial statements contained in the
Offering Memorandum. The pro forma consolidated condensed financial
statements of the Company and its subsidiaries and the related notes
thereto incorporated by reference elsewhere in the Offering Memorandum
present fairly the information contained therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to
pro forma financial statements and have been properly presented on the
bases described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate
to give effect to the transactions and circumstances referred to
therein.
(l) Subsequent to the respective dates as of which information
is given in the Offering Memorandum, (i) there has been no material
adverse change, or any development that could reasonably be expected to
result in a material adverse change, in the condition, financial or
otherwise, or in the earnings, business, operations or prospects,
whether or not arising from transactions in the ordinary course of
business, of the Company and each of its subsidiaries (as such term is
defined in Section 14) (each a "SUBSIDIARY"), considered as one entity
(any such change is called a "MATERIAL ADVERSE CHANGE"); (ii) other
than the Notes, neither the Company nor any of its Subsidiaries,
considered as one entity, have incurred any material liability or
obligation, indirect, direct or contingent, not in the ordinary course
of business nor entered into any material transaction or agreement not
in the ordinary course of business; and (iii) there has been
5
no dividend or distribution of any kind declared, paid or made by the
Company or, except for dividends paid to the Company or other
subsidiaries, any other Subsidiaries on any class of capital stock or
repurchase or redemption by the Company or any other Subsidiary of any
class of capital stock.
(m) The Company and each Subsidiary has been duly organized
and is validly existing as a corporation or limited liability company,
as the case may be, in good standing under the laws of their respective
jurisdictions of organization, is duly qualified to do business and are
in good standing as foreign corporations in each jurisdiction in which
its respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, except where the
failure to be so qualified would not reasonably be expected to have a
Material Adverse Change, and each has all power and authority necessary
to own or hold its respective properties and to conduct the businesses
in which it is engaged, except where the failure to have such power and
authority would not reasonably be expected to have a Material Adverse
Change; the Subsidiaries listed on Schedule II hereto (collectively,
the "SIGNIFICANT SUBSIDIARIES")) are the only "significant
subsidiaries," as such term is defined in Rule 405 of the rules and
regulations of the Commission under the Securities Act, on a pro forma
basis to give effect to the restructuring of American Cellular
Corporation.
(n) The Company has an authorized capitalization as set forth
in the Offering Memorandum (and on the Closing Date will have the
authorized capitalization so set forth in the Offering Memorandum as of
that date) and all of the issued shares of capital stock of the Company
have been duly authorized and validly issued, are fully paid and
non-assessable and conform, in all material respects, to the
description thereof contained in the Offering Memorandum. All of the
issued shares of capital stock or limited liability company interests,
as the case may be, of each subsidiary of the Company have been duly
authorized and validly issued and are fully paid and non-assessable and
are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims, other than liens,
encumbrances, equities or claims contemplated by the credit facility to
be entered into on the Closing Date by ▇▇▇▇▇▇ Operating Co., L.L.C. and
the lenders named therein (the "SENIOR CREDIT FACILITY") or otherwise
described in the Offering Memorandum.
(o) Neither the Company nor any Subsidiary is in violation of
its charter or by-laws or is in default (or, with the giving of notice
or lapse of time, would be in default) ("DEFAULT") under any indenture,
mortgage, loan or credit agreement, note, contract, franchise, lease or
other instrument to which the Company or any Subsidiary, is a party or
by which it or any of them may be bound, or to which any of the
property or assets of the Company or any Subsidiary, is subject,
including the Senior Credit Facility (each, an "EXISTING INSTRUMENT"),
except for such Defaults as would not, individually or in the
aggregate, result in a Material Adverse Change. The execution, delivery
and performance of this Agreement, the Registration Rights Agreement
and the Indenture by the Company, as the case may be, and the issuance
and delivery of the Notes or the Exchange Notes, and consummation of
the transactions contemplated hereby and thereby and by the Offering
Memorandum have been duly authorized by all necessary corporate
6
action and will not result in any violation of the provisions of the
charter or by-laws of the Company or any Subsidiary, (ii) will not
conflict with or constitute a breach of, or Default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Subsidiary pursuant to, or,
except for the consent required under Section 5(j) hereof, require the
consent of any other party to, any Existing Instrument, except for such
conflicts, breaches, Defaults, liens, charges or encumbrances as would
not, individually or in the aggregate, result in a Material Adverse
Change and (iii) will not result in any violation of any law,
administrative regulation or administrative or court decree applicable
to the Company or any Subsidiary.
(p) No consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental or
regulatory authority or agency, is required for the Company's
execution, delivery and performance of this Agreement, the Registration
Rights Agreement, or the Indenture, or the issuance and delivery of the
Notes or the Exchange Notes, or consummation of the transactions
contemplated hereby and thereby and by the Offering Memorandum, except
such as have been obtained or made by the Company and are in full force
and effect under the Securities Act, applicable state securities or
blue sky laws and except such as may be required by federal and state
securities laws with respect to the Company's obligations under the
Registration Rights Agreement.
(q) There are no legal or governmental actions, suits or
proceedings pending or, to the best of knowledge of the Company,
threatened against or affecting the Company or any Subsidiary which, if
determined adversely to the Company or such Subsidiary, could
reasonably be expected to result in a Material Adverse Change or
adversely affect the consummation of the transactions contemplated by
this Agreement. No labor dispute with employees retained to provide
services to the Company or any of its subsidiaries that could result in
a Material Adverse Change exists or, to the best knowledge of the
Company, is threatened or imminent.
(r) The Company and the Subsidiaries own or possess sufficient
trademarks, trade names, patent rights, copyrights, licenses,
approvals, trade secrets and other similar rights (collectively,
"INTELLECTUAL PROPERTY RIGHTS") reasonably necessary to conduct their
businesses as now conducted; and the expected expiration of any of such
Intellectual Property Rights would not result in a Material Adverse
Change. Neither the Company nor any Subsidiary has received any notice
of infringement or conflict with asserted Intellectual Property Rights
of others, which infringement or conflict, if the subject of an
unfavorable decision, would result in a Material Adverse Change.
(s) The Company and the Subsidiaries possess such valid and
current certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct their respective businesses, and neither the
Company nor any Subsidiary has received any notice of proceedings
relating to the revocation or modification of, or non-compliance with,
any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, could result in a Material Adverse Change.
7
(t) The Company and each Subsidiary have good title to all the
properties and assets reflected as owned in the financial statements
referred to in paragraph (k) above, in each case free and clear of any
security interests, mortgages, liens, encumbrances, equities, claims
and other defects, except as would not reasonably be expected to result
in a Material Adverse Change. The real property, improvements,
equipment and personal property held under lease by the Company and
each Subsidiary are held under valid and enforceable leases, except as
would not reasonably be expected to result in a Material Adverse
Change.
(u) There are no material contracts or other documents that
would be required to be described in a prospectus included in a
registration statement on Form S-1 under the Securities Act or the
rules and regulations of the Commission thereunder relating to the
registration of the Notes that have not been described in the Offering
Memorandum.
(v) No relationship, direct or indirect, exists between or
among the Company or any subsidiary of the Company on the one hand, and
the directors, officers, stockholders, customers or suppliers of the
Company or their respective subsidiaries on the other hand, that would
be required to be described or included in a prospectus included in a
registration statement on Form S-1 under the Securities Act or the
rules and regulations of the Commission thereunder relating to the
registration of the Notes except as described or contemplated in the
Offering Memorandum.
(w) The Company and each Subsidiary, as applicable, have filed
all necessary federal, state and foreign income and franchise tax
returns and have paid all taxes required to be paid by any of them as
reflected on such returns, and, if due and payable, any related or
similar assessment, fine or penalty levied against any of them. The
Company has made adequate charges, accruals and reserves, if any, in
the applicable financial statements referred to in paragraph (k) above
in respect of all federal, state and foreign income and franchise taxes
for all periods as to which the tax liability of the Company or any of
its consolidated subsidiaries has not been finally determined.
(x) The Company has been advised of the rules and requirements
under the Investment Company Act of 1940, as amended (the "INVESTMENT
COMPANY ACT"). The Company is not , nor after receipt of payment for
the Notes will be, an "investment company" within the meaning of
Investment Company Act, and the Company will conduct its respective
business in a manner so that it will not become subject to the
Investment Company Act.
(y) The Company and each Subsidiary is insured by recognized,
financially sound institutions with policies in such amounts and with
such deductibles and covering such risks as are generally deemed
adequate and customary for their businesses including, but not limited
to, policies covering real and personal property owned or leased by the
Company and the Subsidiaries against theft, damage, destruction, acts
of vandalism and earthquakes.
8
(z) The Company has not taken nor will take, directly or
indirectly, any action designed to or that might be reasonably expected
to cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Notes.
(aa) The Company is, and immediately after the Closing Date
will be, Solvent. As used herein, the term "Solvent" means, with
respect to the Company on a particular date, that on such date (i) the
fair market value of the assets of the Company, as applicable, is
greater than the total amount of liabilities (including contingent
liabilities) of the Company, as applicable, (ii) the present fair
salable value of the assets of the Company is greater than the amount
that will be required to pay the probable liabilities of the Company,
as applicable, on its debts as they become absolute and matured, (iii)
the Company is able to realize upon its assets and pay its debts and
other liabilities, including contingent obligations, as they mature and
(iv) the Company does not have unreasonably small capital.
(bb) The Company maintains a system of accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(cc) Neither the Company nor any Subsidiary has violated any
safety or similar law applicable to its business, nor any federal or
state law relating to discrimination in the hiring, promotion or pay of
employees nor any applicable federal or state wages and hours laws,
except for violations that, individually or in the aggregate, would not
result in a Material Adverse Change. The Company is in compliance in
all material respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred with respect to
any "pension plan" (as defined in ERISA) except for such events that,
individually or in the aggregate, would not result in a Material
Adverse Change; the Company has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to termination
of, or withdrawal from, any "pension plan" or (ii) Sections 412 or 4971
of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the "CODE"); and
each "pension plan" for which the Company would have any liability that
is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and to the best of knowledge of the
Company, nothing has occurred, whether by action or by failure to act,
which would cause the loss of such qualification.
9
(dd) All licenses and authorizations issued by the Federal
Communications Commission ("FCC") and state authorities governing
telecommunications matters (the "LICENSES") required for the operation
of the business of the Company and the Subsidiaries, are in full force
and effect. All fees due and payable to governmental authorities
pursuant to the rules governing Licenses have been paid. No event has
occurred with respect to the Licenses held by the Company or the
Subsidiaries which, with the giving of notice or the lapse of time or
both, would constitute grounds for revocation of any Licenses. Each of
the Company and the Subsidiaries is in compliance in all material
respects with the terms of the Licenses, as applicable, and there is no
condition, event or occurrence existing, nor is there any proceeding
being conducted of which the Company or any Subsidiary has received
notice, nor, to the best knowledge of the Company, is there any
proceeding threatened, by any governmental authority, which would cause
the termination, suspension, cancellation or nonrenewal of any of the
Licenses, or the imposition of any penalty or fine (that is material to
the Company and the Subsidiaries, taken as a whole) by any regulatory
authority. No registrations, filings, applications, notices, transfers,
consents, approvals, audits, qualifications, waivers or other action of
any kind is required by virtue of the execution, delivery and
performance of this Agreement, except where the failure to have made
such notification or to have obtained such consent would not result in
a Material Adverse Change, and the issuance and delivery of the Notes,
to avoid the loss of any such License, permit, consent, concession or
other authorization or any asset, property or right pursuant to the
terms thereof, or the violation or breach of any applicable law
thereto.
(ee) Upon application of the net proceeds of the Offering as
set forth in the Final Memorandum, all amounts outstanding under the
terms of the Amended, Restated and Consolidated Credit Agreement dated
as of January 18, 2000, as amended, between and among ▇▇▇▇▇▇ Operating
Co., L.L.C., Bank of America, N.A., as administrative agent, First
Union National Bank and PNC Bank, National Association, as
co-documentation agents, and the lenders thereto, (the "EXISTING CREDIT
FACILITY") shall have been fully repaid.
The Company understands that the Initial Purchasers and, for purposes
of the opinions to be delivered to you pursuant to Section 5 hereof, counsel to
the Company and counsel to the Initial Purchasers, will rely upon the accuracy
and truth of the foregoing representations and hereby consents to such reliance.
SECTION 2. Purchase, Sale and Delivery of the Notes.
(a) The Notes. The Company agrees to issue and sell to the
several Initial Purchasers, severally and not jointly, all of the Notes
upon the terms herein set forth. On the basis of the representations,
warranties and agreements herein contained, and upon the terms but
subject to the conditions herein set forth, each Initial Purchaser
agrees, severally and not jointly, to purchase from the Company the
aggregate principal amount of Notes set forth opposite its name on
Schedule I, at a purchase price of 98.125% of the principal amount
thereof payable on the Closing Date.
10
(b) The Closing Date. Delivery of certificates for the Notes
in definitive form to be purchased by the Initial Purchasers and
payment therefor shall be made at the offices of Weil, Gotshal & ▇▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (or such other place as
may be agreed to by the Company and the Initial Purchasers) at 9:00
a.m. New York City time, on September 26, 2003 or such other time and
date as the Initial Purchasers shall designate by notice to the Company
(the time and date of such closing are called the "CLOSING DATE"). The
Company hereby acknowledges that circumstances under which the Initial
Purchasers may provide notice to postpone the Closing Date as
originally scheduled include, but are in no way limited to, any
determination by the Company or the Initial Purchasers to recirculate
to investors copies of an amended or supplemented Offering Memorandum
or a delay as contemplated by the provisions of Section 3(b).
(c) Delivery of the Notes. The Company shall deliver, or cause
to be delivered, to ▇▇▇▇▇▇ Brothers Inc. for the accounts of the
several Initial Purchasers certificates for the Notes at the Closing
Date against the irrevocable release of a wire transfer of immediately
available funds for the amount of the purchase price therefor. The
certificates for the Notes shall be in such denominations and
registered in the name of Cede & Co., as nominee of The Depository
Trust Company ("DTC"), and shall be made available for inspection on
the business day preceding the Closing Date at a location in New York
City, as the Initial Purchasers may designate. Time shall be of the
essence, and delivery at the time and place specified in this Agreement
is a further condition to the obligations of the Initial Purchasers.
(d) Delivery of Offering Memorandum to the Initial Purchasers.
Prior to the Closing Date, the Company shall deliver or cause to be
delivered copies of the Offering Memorandum in such quantities, at such
time or times and at such places as the Initial Purchasers shall
reasonably request.
(e) Initial Purchasers as Qualified Institutional Buyers. Each
Initial Purchaser severally and not jointly represents and warrants to,
and agrees with, the Company that it is a Qualified Institutional Buyer
and an "accredited investor" within the meaning of Rule 501 under the
Securities Act (an "ACCREDITED INVESTOR").
SECTION 3. Additional Covenants. The Company further covenants and
agrees with each Initial Purchaser as follows:
(a) Initial Purchasers' Review of Proposed Amendments and
Supplements. Prior to amending or supplementing the Offering
Memorandum, the Company shall furnish to the Initial Purchasers for
review a copy of each such proposed amendment or supplement, and the
Company shall not use any such proposed amendment or supplement to
which the Initial Purchasers reasonably object.
(b) Amendments and Supplements to the Offering Memorandum and
Other Securities Act Matters. If, prior to the completion of the
placement of the Notes by the Initial Purchasers with the Eligible
Purchasers, any event shall occur or condition exist as
11
a result of which it is necessary to amend or supplement the Offering
Memorandum in order to make the statements therein, in the light of the
circumstances when the Offering Memorandum is delivered to a purchaser,
not misleading, or if in the opinion of the Initial Purchasers or
counsel for the Initial Purchasers it is otherwise necessary to amend
or supplement the Offering Memorandum to comply with law, the Company
agrees to promptly prepare, and furnish at its own expense to the
Initial Purchasers, amendments or supplements to the Offering
Memorandum so that the statements in the Offering Memorandum as so
amended or supplemented will not, in the light of the circumstances
when the Offering Memorandum is delivered to a purchaser, be misleading
or so that the Offering Memorandum, as amended or supplemented, will
comply with law.
The Company hereby expressly acknowledges that the
indemnification and contribution provisions of Section 8 hereof are
specifically applicable and relate to each offering memorandum,
registration statement, prospectus, amendment or supplement referred to
in this Section 3.
(c) Copies of the Offering Memorandum. The Company agrees to
furnish the Initial Purchasers, without charge, as many copies of the
Offering Memorandum and any amendments and supplements thereto as they
shall have reasonably requested.
(d) Blue Sky Compliance. The Company shall cooperate with the
Initial Purchasers and counsel for the Initial Purchasers to qualify or
register the Notes for sale under (or obtain exemptions from the
application of) the Blue Sky or state securities laws of those
jurisdictions designated by the Initial Purchasers, shall comply with
such laws and shall continue such qualifications, registrations and
exemptions in effect so long as required for the distribution of the
Notes. The Company shall not be required to qualify as a foreign
corporation or to take any action that would subject it to general
service of process in any such jurisdiction where it is not presently
qualified or where it would be subject to taxation as a foreign
corporation. The Company will advise the Initial Purchasers promptly of
the suspension of the qualification or registration of (or any such
exemption relating to) the Notes for offering, sale or trading in any
jurisdiction or any initiation or threat of any proceeding for any such
purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, the Company shall use its
best efforts to obtain the withdrawal thereof at the earliest possible
moment.
(e) Use of Proceeds. The Company shall apply the net proceeds
from the sale of the Notes sold by it in the manner described under the
caption "Use of Proceeds" in the Offering Memorandum.
(f) DTC. The Company will cooperate with the Initial
Purchasers and use its best efforts to permit the Notes to be eligible
for clearance and settlement through the facilities of DTC.
(g) Additional Issuer Information. During any period in which
the Company is not subject to Section 13 or 15(d) of the Exchange Act,
for the benefit of holders and
12
beneficial owners from time to time of Notes, the Company shall
furnish, at its expense, upon request, to holders and beneficial owners
of Notes and prospective purchasers of Notes information ("ADDITIONAL
ISSUER INFORMATION") satisfying the requirements of subsection
(d)(4)(i) of Rule 144A.
(h) Future Reports to the Initial Purchasers. For a period of
three (3) years from the date of this Agreement, the Company will
furnish to the Representatives as soon as practicable after the end of
each fiscal year, copies of the Annual Report of the Company containing
the balance sheet of the Company as of the close of such fiscal year
and statements of income, stockholders' equity and cash flows for the
year then ended and the opinion thereon of the Company's independent
public or certified public accountants; (ii) as soon as practicable
after the filing thereof, copies of each proxy statement, Annual Report
on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K
or other report filed by the Company with the Commission, the NASD or
any securities exchange; and (iii) as soon as available, copies of any
report or communication of the Company mailed generally to holders of
its capital stock or debt securities (including the holders of the
Notes).
(i) No Integration. The Company agrees that it will not and
will cause its Affiliates not to make any offer or sale of securities
of the Company of any class if, as a result of the doctrine of
"integration" referred to in Rule 502 under the Securities Act, such
offer or sale would render invalid (for the purpose of (i) the sale of
the Notes by the Company to the Initial Purchasers, (ii) the resale of
the Notes by the Initial Purchasers to Eligible Purchasers or (iii) the
resale of the Notes by such Eligible Purchasers to others) the
exemption from the registration requirements of the Securities Act
provided by Section 4 thereof or by Rule 144A or by Regulation S
thereunder or otherwise.
(j) Legended Notes. Each certificate for a Note will bear the
legend contained in "Notice to Investors" in the Offering Memorandum
for the time period and upon the other terms stated in the Offering
Memorandum.
(k) PORTAL(R). The Company will use its best efforts to cause
the Notes to be eligible for the PORTAL(R) market.
(l) No Resales. During the period of two years after the
Closing Date, the Company will not, and will not permit any of its
"affiliates" (as defined in Rule 144 under the Act) to resell any of
the Notes that constitute "restricted securities" under Rule 144 that
have been reacquired by any of them.
▇▇▇▇▇▇ Brothers Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, may, in
their discretion, waive in writing the performance by the Company of any one or
more of the foregoing covenants or extend the time for their performance.
SECTION 4. Expenses. The Company agrees to pay (i) the costs incident
to the authorization, issuance, sale and delivery of the Notes and any taxes
payable in that connection; (ii) the costs incident to the preparation, printing
and distribution of the Preliminary Offering Memorandum and the Offering
Memorandum and any amendments and exhibits thereto; (iii) the
13
costs incident to the preparation, printing, authentication, issuance and
delivery of certificates for the Securities, including any stamp or transfer
taxes in connection with the original issuance and sale of the Securities; (iv)
the fees, disbursements and expenses of the Company and its counsel and
accountants; (v) all expenses and listing fees in connection with the
application for quotation of the Notes in PORTAL(R); (vi) all fees and expenses
(including fees and expenses of counsel) of the Company in connection with
approval of the Notes by DTC for "book-entry" transfer; (vii) the fees and
expenses of qualifying the Notes under the securities laws of the several
jurisdictions as provided in Section 5(a) and of preparing, printing and
distributing a Blue Sky Memorandum (including reasonable related fees and
expenses of counsel to the Initial Purchasers); (viii) any fees charged by
securities rating services for rating the Notes; (ix) the fees and expenses of
the Trustee and the Trustee's counsel in connection with the Indenture and the
Notes; and (x) all other costs and expenses incident to the performance of the
obligations of the Company under this Agreement; provided that, except as
provided in this Section 4 and in Section 6, the Initial Purchasers shall pay
their own costs and expenses, including the costs and expenses of their counsel,
any transfer taxes in connection with any resale of the Notes by the Initial
Purchasers subsequent to their initial purchase and resale of the Notes and the
expenses of advertising any offering of the Notes made by the Initial
Purchasers.
SECTION 5. Conditions of the Obligations of the Initial Purchasers. The
respective obligations of the Initial Purchasers hereunder are subject to the
accuracy, when made and on the Closing Date, of the representations and
warranties of the Company contained herein, to the performance by the Company of
its obligations hereunder, and to each of the following additional terms and
conditions.
(a) The Initial Purchasers shall not have discovered and
disclosed to the Company on or prior to the Closing Date that the
Offering Memorandum or any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of Weil, Gotshal &
▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, is material or omits to
state a fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements
therein not misleading.
(b) All of the representations and warranties of the Company
contained in this Agreement shall have been true and correct on the
date hereof and shall be true and correct on the Closing Date with the
same force and effect as if made on and as of the Closing Date. The
Company shall have performed or complied in all material respects with
all of the agreements contained herein and required to be performed or
complied with by them at or prior to the Closing Date.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the
Operative Documents, the Offering Documents, and all other legal
matters relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all material respects to
counsel for the Initial Purchasers, and the Company shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
14
(d) Each of the Initial Purchasers shall have received on the
Closing Date an opinion, in form and substance reasonably satisfactory
to the Initial Purchasers and counsel for the Initial Purchasers, dated
the Closing Date, from McAfee & ▇▇▇▇ A Professional Corporation,
special counsel for the Company substantially in the form attached
hereto as Exhibit 5(d), as the Initial Purchasers may reasonably
request.
(e) Each of the Initial Purchasers shall have received on the
Closing Date an opinion, in form and substance reasonably satisfactory
to the Initial Purchasers and counsel for the Initial Purchasers, dated
the Closing Date, from regulatory counsel for the Company substantially
in the form attached hereto as Exhibit 5(e), as the Initial Purchasers
may reasonably request.
(f) The Initial Purchasers shall have received from Weil,
Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion
or opinions, dated such Closing Date, with respect to the issuance and
sale of the Notes, the Offering Memorandum and other related matters as
the Initial Purchasers may reasonably require, and the Company shall
have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(g) On the Closing Date, the Company and the Trustee shall
have entered into the Indenture and the Initial Purchasers shall have
received counterparts, conformed as executed, thereof.
(h) On the Closing Date, the Company and the Initial
Purchasers shall have entered into the Registration Rights Agreement
and the Initial Purchasers shall have received counterparts, conformed
as executed, thereof.
(i) Concurrently with the closing of the Offering, all amounts
outstanding under the Existing Credit Facility shall be fully repaid.
(j) The Notes shall have been approved for trading in
PORTAL(R).
(k) The Initial Purchasers shall have received from KPMG LLP a
letter, in form and substance satisfactory to the Initial Purchasers,
addressed to the Initial Purchasers and dated the date hereof (i)
confirming that they are certified independent public accountants with
respect to the Company under Rule 101 of the AICPA's Code of
Professional Conduct and its interpretations and rulings and (ii)
stating, as of the date hereof (or, with respect to matters involving
changes or developments since the respective dates as of which
specified financial information is given in the Offering Memorandum, as
of a date not more than five days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants'
"comfort letters" to underwriters in connection with registered public
offerings.
(l) With respect to the letter of KPMG LLP referred to in the
preceding paragraph and delivered to the Initial Purchasers
concurrently with the execution of this Agreement (the "INITIAL
LETTER"), the Company shall have furnished to the Initial
15
Purchasers a letter (the "BRING-DOWN LETTER") of such accountants,
addressed to the Initial Purchasers and dated such Closing Date (i)
stating, as of the date of the bring-down letter (or, with respect to
matters involving changes or developments since the respective dates as
of which specified financial information is given in the Offering
Memorandum, as of a date not more than five days prior to the date of
the bring-down letter), the conclusions and findings of such firm with
respect to the financial information and other matters covered by the
initial letter and (ii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(m) The Initial Purchasers shall have received (a) a
certificate from the Company, dated the Closing Date, signed by its
Chairman of the Board, President or a Vice President and its chief
financial officer stating that:
(i) the representations, warranties and agreements of the
Company in Section 1 are true and correct as of such Closing
Date; the Company has complied with all of its agreements
contained herein; and the conditions set forth in Sections
5(o) and 5(p) have been fulfilled; and
(ii) they have carefully examined the Preliminary Offering
Memorandum and the Offering Memorandum and, in their opinion
(A) the Preliminary Offering Memorandum and Offering
Memorandum, as of their respective dates, did not, and the
Offering Memorandum, as of the Closing Date, does not include
any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
(B) since the date of the Offering Memorandum, no event has
occurred which should have been set forth in a supplement or
amendment to Offering Memorandum.
(n) (i) None of the Company nor any Subsidiary shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Offering Memorandum any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, or (ii) since
such date there shall not have been any change in the capital stock or
long-term debt of the Company or any Subsidiary or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or
results of operations of the Company and any Subsidiary, otherwise than
as set forth or contemplated in the Offering Memorandum, the effect of
which, in any such case described in clause (i) or (ii), is, in the
sole judgment of the Initial Purchasers, so material and adverse as to
make it impracticable or inadvisable to proceed with the offering or
the delivery of the Notes being delivered on the Closing Date on the
terms and in the manner contemplated in the Offering Memorandum.
(o) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the
Company's Notes by any "nationally recognized statistical rating
organization", as that term is defined by the
16
Commission for purposes of Rule 436(g)(2) of the rules and regulations
of the Commission under the Securities Act and (ii) such organization
shall not have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the
Company's debt securities.
(p) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange, the Nasdaq
National Market or the American Stock Exchange or in the
over-the-counter market, or trading in any securities of the Company on
any exchange or in the over-the-counter market, has been suspended or
minimum prices shall have been established on any such exchange or such
market by the Commission, by such exchange or by any other regulatory
body or governmental authority having jurisdiction; (ii) a material
disruption in securities settlement, payment or clearance services in
the United States; (iii) a banking moratorium has been declared by
Federal or state authorities; (iv) any attack on, outbreak or
escalation of hostilities or act of terrorism involving the United
States, any declaration of war by Congress or any other national or
international calamity, crisis or emergency if, in the judgment of
▇▇▇▇▇▇ Brothers Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, the effect
of any such attack, outbreak, escalation, act, declaration, calamity,
crisis or emergency makes it impractical or inadvisable to proceed with
completion of the offering or sale of and payment for the Notes; or (v)
the occurrence of any other calamity, crisis (including without
limitation as a result of terrorist activities), or material adverse
change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in the
United States shall be such) as to make it, in the judgment of ▇▇▇▇▇▇
Brothers Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, impracticable or
inadvisable to proceed with the offering or delivery of the Notes being
delivered on the Closing Date or that, in the judgment of ▇▇▇▇▇▇
Brothers Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, would materially
and adversely affect the financial markets or the markets for the Notes
and other debt securities.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchasers.
SECTION 6. Reimbursement of Initial Purchasers' Expenses. If the
Company shall fail to tender the Notes for delivery to the Initial Purchasers by
reason of any failure, refusal or inability on the part of the Company to
perform any agreement on its part to be performed, or because any other
condition of the Initial Purchasers' obligations hereunder required to be
fulfilled by the Company is not fulfilled, the Company will reimburse the
Initial Purchasers for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the Initial Purchasers in connection with
this Agreement and the proposed purchase of the Notes, and upon demand the
Company shall pay the full amount thereof to the Initial Purchasers. If this
Agreement is terminated pursuant to Section 10 by reason of the default of one
or more Initial Purchasers, the Company shall not be obligated to reimburse any
defaulting Initial Purchaser on account of those expenses.
17
SECTION 7. Offer, Sale and Resale Procedures. Each of the Initial
Purchasers and the Company hereby establish and agree to observe the following
procedures in connection with the offer and sale of the Notes:
(a) Offers and sales of the Notes will be made only by the
Initial Purchasers or Affiliates thereof qualified to do so in the
jurisdictions in which such offers or sales are made. Each such offer
or sale shall only be made to persons whom the offeror or seller
reasonably believes to be qualified institutional buyers (as defined in
Rule 144A under the Securities Act) or non-U.S. persons outside the
United States to whom the offeror or seller reasonably believes offers
and sales of the Notes may be made in reliance upon Regulation S under
the Securities Act, upon the terms and conditions set forth in Section
7(d) hereof.
(b) The Notes will be offered by approaching prospective
Eligible Purchasers on an individual basis. No general solicitation or
general advertising (within the meaning of Rule 502 under the
Securities Act) will be used in the United States in connection with
the offering of the Notes.
(c) Upon original issuance by the Company, and until such time
as the same is no longer required under the applicable requirements of
the Securities Act, the Notes (and all securities issued in exchange
therefor or in substitution thereof, other than the Exchange Notes)
shall bear the following legend:
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR OTHER
SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IT IS ACQUIRING THIS
NOTE IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT, PRIOR TO (X) THE
DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY
RULE 144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION
THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF
ANY PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON WHICH THE COMPANY OR
ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAW (THE "RESALE RESTRICTION TERMINATION DATE"),
OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
18
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A INSIDE
THE UNITED STATES, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS
THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
(3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND;
PROVIDED THE COMPANY, THE TRUSTEE, AND THE REGISTRAR SHALL HAVE THE
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF
THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT."
(d) With respect to Notes sold in reliance on Regulation S,
each Initial Purchaser agrees that it has not offered or sold and will
not offer or sell the Notes 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 Securities 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 Notes pursuant
hereto and the Closing Date, other than in accordance with Regulation S
of the Securities Act or another exemption from the registration
requirements of the Securities Act. Such Initial Purchaser agrees that,
during such 40-day distribution compliance period, it will not cause
any advertisement with respect to the Notes (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
Notes, except such advertisements as are permitted by and include the
statements required by Regulation S. Each Initial Purchaser agrees
that, at or prior to confirmation of a sale of Notes by it to any
distributor, dealer or person receiving a selling concession, fee or
other remuneration during the distribution compliance period referred
to in Rule 903 under the Securities 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:
19
"The Notes covered hereby have not been registered under the
U.S. Securities Act of 1933, as amended (the "Securities 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 date
the Notes were first offered to persons other than "distributors" (as
defined in Regulation S) in reliance upon Regulation S and the Closing
Date, except in either case in accordance with Regulation S under the
Securities Act (or Rule 144A or in transactions that are exempt from
the registration requirements of the Securities Act), and in connection
with any subsequent sale by you of the Notes 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."
(e) Following the sale of the Notes by the Initial Purchasers
to Eligible Purchasers pursuant to the terms hereof, the Initial
Purchasers shall not be liable or responsible to the Company for any
losses, damages or liabilities suffered or incurred by the Company,
including any losses, damages or liabilities under the Securities Act,
arising from or relating to any resale or transfer of any Security.
SECTION 8. Indemnification and Contribution. (a) The Company, shall
jointly and severally, indemnify and hold harmless each Initial Purchaser, its
officers, employees and affiliates, and each person, if any, who controls any
Initial Purchaser within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of the Notes), to which that Initial
Purchaser, officer, employee, affiliate or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained (A) in any
Preliminary Offering Memorandum, the Offering Memorandum or in any amendment or
supplement thereto, (B) in any Blue Sky application or other document prepared
or executed by the Company (or based upon any written information furnished by
the Company) specifically for the purpose of qualifying any or all of the Notes
under the securities laws of any state or other jurisdiction (any such
Application, document or information being hereinafter called a "BLUE SKY
APPLICATION") or (C) in any materials or information provided to investors by,
or with the approval of, the Company in connection with the marketing of the
offering of the Notes ("MARKETING MATERIALS"), including any roadshow or
investor presentations made to investors by the Company (whether in person or
electronically), (ii) the omission or alleged omission to state in any
Preliminary Offering Memorandum, the Offering Memorandum or in any amendment or
supplement thereto, or in any Blue Sky Application or Marketing Materials, any
material fact required to be stated therein or necessary to make the statements
therein not misleading or (iii) any act or failure to act or any alleged act or
failure to act by any Initial Purchaser in connection with, or relating in any
manner to, the Notes or the offering contemplated hereby, and which is included
as part of or referred to in any loss, claim, damage, liability or action
arising out of or based upon matters covered by clause (i) or (ii) above
(provided that the Company shall not be liable under this clause (iii) to the
extent that it is determined in a final judgment by a court of
20
competent jurisdiction that such loss, claim, damage, liability or action
resulted directly from any such acts or failures to act undertaken or omitted to
be taken by such Initial Purchaser through its gross negligence or willful
misconduct), and shall reimburse each Initial Purchaser and each such officer,
employee, affiliate or controlling person promptly upon demand for any legal or
other expenses reasonably incurred by that Initial Purchaser, officer, employee,
affiliate or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Offering Memorandum, the Offering Memorandum or in any such amendment or
supplement, or in any Blue Sky Application or Marketing Materials in reliance
upon and in conformity with written information concerning such Initial
Purchaser furnished to the Company through the Representative by or on behalf of
any Initial Purchaser specifically for inclusion therein which information
consists solely of the information specified in Section 8(e); provided, further,
that with respect to any such untrue statement or omission made in the
Preliminary Offering Memorandum, the indemnity agreement contained in this
Section 8(b) shall not inure to the benefit of the Initial Purchasers from whom
the person asserting any such losses, claims, damages or liabilities purchased
the Notes concerned if, to the extent that such sale was an initial sale by the
Initial Purchasers and any such loss, claim, damage or liability of the Initial
Purchasers is a result of the fact that both (A) a copy of the Offering
Memorandum was not sent or given to such person at or prior to written
confirmation of the sale of such Notes to such person and (B) the untrue
statement or omission in the Preliminary Offering Memorandum was corrected in
the Offering Memorandum unless such failure to deliver the Offering Memorandum
was a result of noncompliance by the Company with Section 3(c) hereof. The
foregoing indemnity agreement is in addition to any liability which the Company
may otherwise have to any Initial Purchaser or to any officer, employee or
controlling person of that Initial Purchaser.
(b) Each Initial Purchaser, severally and not jointly, shall
indemnify and hold harmless the Company, their officers and employees,
each of their directors, and each person, if any, who controls the
Company within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Company, or any such director, officer or
controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any Preliminary
Offering Memorandum, the Offering Memorandum or in any amendment or
supplement thereto or (B) in any Blue Sky Application or (ii) the
omission or alleged omission to state in any Preliminary Offering
Memorandum, the Offering Memorandum or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
concerning such Initial Purchaser furnished to the Company through the
Representative by or on behalf of that Initial Purchaser specifically
for inclusion therein, which information consists solely of the
information specified in Section 8(e), and shall
21
reimburse the Company and any such director, officer or controlling
person for any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition
to any liability which any Initial Purchaser may otherwise have to the
Company or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 8 except to the extent it has been materially prejudiced
by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 8. If
any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that
it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not
be liable to the indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, any indemnified party shall have the
right to employ separate counsel in any such action and to 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 has been specifically authorized by the indemnifying party
in writing, or (ii) such 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 and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel or
(iii) the indemnifying party has failed to assume the defense of such
action and employ counsel reasonably satisfactory to the indemnified
party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel
at the expense of the indemnifying party, the indemnifying party shall
not, in connection with any one such 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 reasonable fees and expenses of more than one separate firm of
attorneys (in addition to one local counsel) at any time for all such
indemnified parties, which firm shall be designated in writing by (x)
▇▇▇▇▇▇ Brothers Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated if the
indemnified parties under this Section 8 consist of the Initial
Purchasers or any of their respective officers, employees or
controlling Persons or (y) by the Company, if the indemnified parties
under this Section 8 consist of any of the Company or any of their
respective directors, officers,
22
employees or controlling Persons. No indemnifying party shall (i)
without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim
or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding or (ii) be liable
for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if
settled with the consent of the indemnifying party or if there be a
final judgment of the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless any indemnified party from
and against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold harmless
an indemnified party under Section 8(a) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the
Company on the one hand and the Initial Purchasers on the other from
the offering of the Notes or (ii) if the allocation provided by clause
(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 (i) above but also the relative fault of the Company, on the one
hand, and the Initial Purchasers on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company
on the one hand and the Initial Purchasers on the other with respect to
such offering shall be deemed to be in the same proportion as the total
net proceeds from the offering of the Notes purchased under this
Agreement (before deducting expenses) received by the Company, on the
one hand, and the total purchase discounts and commissions received by
the Initial Purchasers with respect to the Notes purchased under this
Agreement, on the other hand, bear to the total gross proceeds from the
offering of the Notes under this Agreement, in each case as set forth
in this Agreement. The relative fault shall be determined by reference
to whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by the Company or the Initial Purchasers, the
intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Initial Purchasers agree that it would
not be just and equitable if contributions pursuant to this Section 8
were to be 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 into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability,
or action in respect thereof, referred to above in this Section 8 shall
be deemed to include, for purposes of this Section 8(d), any legal or
other
23
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(d), no Initial
Purchaser shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes purchased by it was
resold to Eligible Purchasers exceeds the amount of any damages which
such Initial Purchaser has otherwise paid or become liable to pay by
reason of any 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Initial Purchasers' obligations to contribute as
provided in this Section 8(d) are several in proportion to their
respective Purchase obligations and not joint.
(e) The Initial Purchasers severally confirm and the Company
acknowledges that the last sentence of the cover page of the Offering
Memorandum and the first sentence of paragraphs 5 and 6 under the
caption "Plan of Distribution" in the Offering Memorandum constitute
the only information concerning the Initial Purchasers furnished in
writing to the Company by or on behalf of the Initial Purchasers
specifically for inclusion in the Offering Memorandum.
SECTION 9. Defaulting Initial Purchasers.
If, on the Closing Date, any Initial Purchaser defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Initial Purchasers shall be obligated to purchase the Notes which
the defaulting Initial Purchaser agreed but failed to purchase on the Closing
Date in the respective proportions which the amount of the Notes set opposite
the name of each remaining non-defaulting Initial Purchaser in Schedule 1 hereto
bears to the total amount of Notes set opposite the names of all the remaining
non-defaulting Initial Purchasers in Schedule 1 hereto; provided, however, that
the remaining non-defaulting Initial Purchasers shall not be obligated to
purchase any of the Notes on the Closing Date if the total amount of the Notes
which the defaulting Initial Purchaser or Initial Purchasers agreed but failed
to purchase on such date exceeds 9.09% of the total amount of Notes to be
purchased on the Closing Date, and any remaining non-defaulting Initial
Purchaser shall not be obligated to purchase more than 110% of the amount of
Notes which it agreed to purchase on the Closing Date pursuant to the terms of
Section 3. If the foregoing maximums are exceeded, the remaining non-defaulting
Initial Purchasers, or those other Initial Purchasers satisfactory to the
Representative who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them, all of the
Notes to be purchased on the Closing Date. If the remaining Initial Purchasers
or other Initial Purchasers satisfactory to the Representative do not elect to
purchase the Notes which the defaulting Initial Purchaser or Initial Purchasers
agreed but failed to purchase on the Closing Date, this Agreement shall
terminate without liability on the part of any non-defaulting Initial Purchaser
or the Company, except that the Company will continue to be liable for the
payment of expenses to the extent set forth in Sections 4 and 6. As used in this
Agreement, the term "Initial Purchaser" includes, for all purposes of this
Agreement unless the context requires otherwise, any party not listed in
24
Schedule I hereto who, pursuant to this Section 9, purchases the Notes which a
defaulting Initial Purchaser agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Company for damages caused by its
default. If other Initial Purchasers are obligated or agree to purchase the
Notes of a defaulting or withdrawing Initial Purchaser, either the Initial
Purchaser or the Company may postpone the Closing Date for up to seven full
business days in order to effect any changes that in the opinion of counsel for
the Company or counsel for the Initial Purchasers may be necessary in the
Offering Memorandum or in any other document or arrangement.
SECTION 10. Termination. The obligations of the Initial Purchasers
hereunder may be terminated by the Representative by notice given to and
received by the Company prior to delivery of and payment for the Notes if, prior
to that time, any of the events described in Sections 5(n), 5(o) and 5(p) shall
have occurred or if the Initial Purchasers shall decline to purchase the Notes
for any reason permitted under this Agreement.
SECTION 11. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent
by mail, telex or facsimile transmission to:
(i) ▇▇▇▇▇▇ Brothers Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate
Department (Fax: ▇▇▇-▇▇▇-▇▇▇▇), with a copy, in the case of
any notice pursuant to Section 8(d), to the Director of
Litigation, Office of the General Counsel, ▇▇▇▇▇▇ Brothers
Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇;
(ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Global Capital
Markets Syndicate Desk (Fax: ▇▇▇-▇▇▇-▇▇▇▇), with a copy, in
the case of any notice pursuant to Section 8(d), to Director
of Litigation, Law Division, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇; and
(iii) with a copy to Weil, Gotshal & ▇▇▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇▇,
Esq. (Fax: ▇▇▇-▇▇▇-▇▇▇▇); and
(b) if to the Company, shall be delivered or sent by mail,
telex or facsimile transmission to:
(i) the address of the Company set forth in the
Offering Memorandum, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇,
Executive Vice President and Chief Financial Officer/▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Vice President and Senior Corporate Counsel (Fax:
405-529-8515),
25
(ii) with a copy to McAfee & ▇▇▇▇, A Professional
Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq. (Fax:
405-235-0439);
provided, however, that any notice to an Initial Purchaser pursuant to Section
8(b) shall be delivered or sent by mail, telex or facsimile transmission to such
Initial Purchaser at its address set forth in its acceptance telex to ▇▇▇▇▇▇
Brothers Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, which address will be
supplied to any other party hereto by ▇▇▇▇▇▇ Brothers Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company and
shall be entitled to act and rely upon any request, consent, notice or agreement
given or made on behalf of the Initial Purchasers by ▇▇▇▇▇▇ Brothers Inc. and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated.
SECTION 12. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Initial Purchasers, the
Company and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any Initial Purchaser within the meaning
of Section 15 of the Securities Act and (B) the indemnity agreement of the
Initial Purchasers contained in Section 8(b) of this Agreement shall be deemed
to be for the benefit of directors of the Company and any person controlling the
Company within the meaning of Section 15 of the Securities Act; provided,
however, that, subsequent to the date hereof and prior to the Closing Date, the
Representatives may assign, on a pro rata basis, up to an aggregate of 10% of
the aggregate principal amount of Notes purchased hereunder; and provided
further, that to the extent of any such assignment pursuant to this Section 12,
any such assignee pursuant to this Section 12 shall be deemed to have assumed
the obligations of an Initial Purchaser hereunder, shall be entitled to the
benefits of the representations, warranties, indemnities and agreements of the
Company set forth herein, and shall execute and deliver an Initial Purchaser
letter substantially in the form attached hereto as Annex A. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Section 12, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
SECTION 13. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the Initial Purchasers contained in
this Agreement or made by or on behalf on them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Notes shall remain
in full force and effect, regardless of any investigation made by or on behalf
of any of them or any person controlling any of them.
SECTION 14. Definition of the Terms "Business Day" and "Subsidiary".
For purposes of this Agreement, (a) "BUSINESS DAY" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "SUBSIDIARY" has the meaning set forth in Rule 405 of the rules
and regulations of the Commission under the Securities Act.
26
SECTION 15. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 16. Counterparts. This Agreement may be executed in two or more
counterparts and, if executed in two or more counterparts, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 17. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
27
If the foregoing correctly sets forth the agreement among the
Company and the Initial Purchasers under this Purchase Agreement, please
indicate your acceptance in the space provided for that purpose below.
Very truly yours,
▇▇▇▇▇▇ COMMUNICATIONS CORPORATION
By:
--------------------------------
Name:
Title:
S-1
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
By:
---------------------------------
Name:
Authorized Representative
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:
---------------------------------
Name:
Authorized Representative
For themselves and as representative of the
several Initial Purchasers named in
Schedule I hereto
S-1
SCHEDULE I
Initial Purchaser Principal Amount of Notes
----------------- -------------------------
▇▇▇▇▇▇ Brothers Inc. $257,292,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated 257,292,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc. 102,916,000
Rabo Securities USA, Inc. 32,500,000
Total $650,000,000
============
A-1
SCHEDULE II
Significant Subsidiaries
▇▇▇▇▇▇ Cellular Systems Inc.
▇▇▇▇▇▇ Operating Co., L.L.C.
▇▇▇▇▇▇/Sygnet Communications Company
▇▇▇▇▇▇ ▇▇ Company
American Cellular Corporation
American Cellular Wireless LLC
A-2
EXHIBIT 5(d)
Form of Opinion of McAfee & ▇▇▇▇
We have acted as counsel to the Company in connection with the
Purchase Agreement, pursuant to which the Initial Purchasers are purchasing
$650.0 million principal amount of the Company's 8?% Senior Notes due 2013 (the
"Notes"). This opinion is delivered to you at the request of the Company
pursuant to Section 5(e) of the
Purchase Agreement. Capitalized terms not
otherwise defined herein are defined as set forth in the
Purchase Agreement or
the Offering Memorandum.
In connection with the opinions hereinafter expressed, we have
(a) investigated such questions of law, (b) examined such corporate documents
and records of the Company and its subsidiaries, (c) examined such certificates
of public officials and (d) received such information from officers and
representatives of the Company and its subsidiaries as we have deemed necessary
and appropriate for this opinion, and we have examined the documents listed on
Schedule I attached hereto.
In rendering the opinions herein set forth, we have assumed
(a) with respect to each document executed and delivered by the Company the due
authorization, execution and delivery of each such document by any other party
thereto and that each such document is valid, binding and enforceable against
such other party, (b) the genuineness of all signatures except those of our
client, (c) the authenticity of all documents submitted to us as originals and
(d) the conformity to originals of documents submitted to us as copies. As to
various questions of fact material to our opinions, we have relied upon the
representations made in the
Purchase Agreement and upon a certificate of certain
officers of the Company, a copy of which certificate is attached hereto.
Based upon the foregoing and subject to the qualifications set
forth below, we are of the opinion that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Oklahoma.
(ii) The Company has corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Offering Memorandum and to enter
into and perform its obligations under the Operative
Documents.
(iii) The Company is in good standing in each
jurisdiction listed on Schedule I hereto, and has all power
and authority necessary to own or hold its properties and
conduct the businesses in which it is engaged.
(iv) All of the issued and outstanding shares of
capital stock of the Company have been duly authorized and
validly issued, are fully paid and non-assessable. All of the
shares of capital stock or limited liability company
B-1
interests, as the case may be, of each Subsidiary have been
duly authorized and validly issued, are fully paid and
non-assessable and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities
or claims.
(v) The
Purchase Agreement has been duly authorized,
executed and delivered by, and is a valid and binding
agreement of, the Company, enforceable against the Company in
accordance with its terms, except as rights to indemnification
thereunder may be limited by applicable law and except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
or affecting the rights and remedies of creditors or by
general equitable principles and except as rights to
indemnification may be limited under applicable law.
(vi) The Registration Rights Agreement has been duly
authorized, executed and delivered by, and is a valid and
binding agreement of, the Company, enforceable against the
Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
or affecting the rights and remedies of creditors or by
general equitable principles and except as rights to
indemnification under the Registration Rights Agreement may be
limited by applicable law.
(vii) The Indenture has been duly authorized,
executed and delivered by the Company and (assuming the due
authorization, execution and delivery thereof by the Trustee)
constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights and remedies
of creditors or by general principles of equity and except as
rights to indemnification may be limited under applicable law.
(viii) The Notes are in the form contemplated by the
Indenture, have been duly authorized by the Company for
issuance and sale pursuant to the
Purchase Agreement and the
Indenture and, when executed by the Company and authenticated
by the Trustee in the manner provided in the Indenture
(assuming the due authorization, execution and delivery of the
Indenture by the Trustee) and delivered against payment of the
purchase price therefor, will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization,
moratorium, or similar laws relating to or affecting
enforcement of the rights and remedies of creditors or by
general principles of equity and will be entitled to the
benefits of the Indenture.
(ix) The Exchange Notes have been duly and validly
authorized for issuance by the Company, and when issued and
authenticated in accordance with
B-2
the terms of the Indenture, the Registration Rights Agreement
and the Exchange Offer, will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization,
moratorium, or similar laws relating to or affecting
enforcement of the rights and remedies of creditors or by
general principles of equity and will be entitled to the
benefits of the Indenture.
(x) The Notes and the Indenture conform in all
material respects to the descriptions thereof contained in the
Offering Memorandum.
(xi) The statements in the Offering Memorandum under
the captions "Risk Factors--The restrictive covenants in our
debt instruments may limit our operating flexibility. Our
failure comply with these covenants could result in defaults
under our indenture and future debt instruments even though we
may be able to meet our debt service obligations," "--Your
right to receive payments on the notes will be effectively
subordinated to the rights of any of our existing and future
secured creditors," "--Because we are a holding company and
depend entirely on cash flow from our subsidiaries to meet our
obligations, your right to receive payment on the notes will
be effectively subordinated to our subsidiaries' obligations,"
"--We may not have the ability to raise the funds necessary to
finance the change of control offer required by the
indenture," "--If an active trading market does not develop
for these notes you may not be able to resell them,"
"Description of Capital Stock," "Description of Other
Indebtedness," "Description of the Notes," "Business--Legal
Proceedings," "Related Party Transactions," "Certain Material
United States Federal Tax Consequences", "Plan of
Distribution" and "Notice to Investors," insofar as such
statements constitute matters of law, summaries of legal
matters, the Company's charter or by-law provisions, documents
or legal proceedings, or legal conclusions, have been reviewed
by such counsel and fairly present and summarize, in all
material respects, the matters referred to therein.
(xii) No consent, approval, authorization or other
order of, or registration or filing with, any court or other
governmental or regulatory authority or agency, is required
for the execution, delivery and performance of the
Purchase
Agreement, the Registration Rights Agreement, or the Indenture
by the Company, as applicable, or the issuance and delivery of
the Notes or the Exchange Notes, or consummation of the
transactions contemplated hereby and thereby and by the
Offering Memorandum, except such as have been obtained or made
by the Company and are in full force and effect under the
Securities Act, applicable state securities or blue sky laws
and except such as may be required by federal and state
securities laws with respect to the Company's obligations
under the Registration Rights Agreement.
(xiii) The execution and delivery of the
Purchase
Agreement, the Registration Rights Agreement, the Notes, the
Exchange Notes and the Indenture
B-3
by the Company and the performance by the Company, as
applicable, of its respective obligations thereunder (other
than performance by the Company of its obligations under the
indemnification section of the Purchase Agreement, as to which
no opinion need be rendered) have been duly authorized by all
necessary corporate action on the part of the Company, as
applicable; (ii) will not result in any violation of the
provisions of the charter or by-laws of the Company; (iii)
will not conflict with, constitute a breach of, or Default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the
Company pursuant to, credit facilities or to the best of our
knowledge, any other material Existing Instrument; and (iv) to
the best of our knowledge, will not result in any violation of
any law, administrative regulation or administrative or court
decree applicable to the Company.
(xiv) Other than the contracts set forth on Schedule
III hereto (each a "Material Contract"), there are no material
contracts or other documents of which we are aware which would
have been required under the Securities Act to have been
described in a prospectus prepared as part of a registration
statement on Form S-1 which have not been described in the
Offering Memorandum.
(xv) The Company is not, and after receipt of payment
for the Notes and the use of proceeds therefrom, will not be,
an "investment company" within the meaning of the Investment
Company Act.
(xvi) Assuming the accuracy of the representations,
warranties and covenants of the Company and the Initial
Purchasers contained in the Purchase Agreement, no
registration of the Notes under the Securities Act, and no
qualification of an indenture under the Trust Indenture Act
with respect thereto, is required in connection with the
purchase of the Notes by the Initial Purchasers or the initial
resale of the Notes by the Initial Purchasers in the manner
contemplated by the Purchase Agreement and the Offering
Memorandum other than any registration or qualification that
may be required in connection with the Exchange Offer
contemplated by the Offering Memorandum or in connection with
the Registration Rights Agreement. We express no opinion,
however, as to when or under what circumstances any Initial
Notes initially sold by the Initial Purchasers may be
reoffered or resold.
(xvii) To the best of our knowledge, there are no
legal or governmental proceedings pending to which the Company
or any of the Significant Subsidiaries is a party or of which
any property or assets the Company or any of the Significant
Subsidiaries is the subject which, if determined adversely to
the Company or any of the Significant Subsidiaries, might
result in a Material Adverse Change with respect to (A) the
consolidated financial position, stockholders' equity, results
of operations, business or prospects of the Company and the
Significant Subsidiaries or (B) the power or ability of the
Company to perform its respective obligations under the
Purchase Agreement or the consummation of any of the
transactions contemplated thereby or in the Offering
B-4
Memorandum; and, to the best of our knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
In addition, we have participated in conferences with officers
and other representatives of the Company, representatives of the independent
public or certified public accountants for the Company and with representatives
of the Initial Purchasers at which the contents of the Offering Memorandum, and
any supplements or amendments thereto, and related matters were discussed and,
although we are not passing upon and do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the Offering
Memorandum (other than as specified above), and any supplements or amendments
thereto, on the basis of the foregoing, nothing has come to our attention which
would lead us to believe that either the Offering Memorandum, as of its date or
at the Closing Date, contained or contains an untrue statement of a material
fact or omitted 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 (it being understood that we need express no belief as to
the financial statements or other financial data derived therefrom, included in
the Offering Memorandum or any amendments or supplements thereto).
Very truly yours,
B-5
EXHIBIT 5(e)
Opinion of Regulatory Counsel
(i) The issue and sale of the Notes being delivered
on the date hereof by the Company and the compliance by the
Company with all of the provisions of the Purchase Agreement
and the consummation of the transactions contemplated thereby,
do not and will not result in any violation of the provisions
of (a) the Act or (b) to the best of our knowledge, any order
or decree of the Federal Communications Commission ("FCC").
The execution, delivery and performance of the Purchase
Agreement, the consummation of the transactions contemplated
thereby, and the issuance and delivery of the Notes do not
require any registration, filing, application, notice,
transfer, consent, approval, audit, qualification, waive or
other action of any kind by the FCC or any state authority
governing telecommunications matters (the "LICENSES") or the
violation or breach of any applicable law thereto, except for
such filings, consents or approval which, if not made or
obtained, would not result in a Material Adverse Change.
(ii) The statements contained in the Offering
Memorandum under "Risk Factors--Regulatory changes may impose
restrictions that adversely affect us or cause us to incur
significant unbudgeted costs in modifying our business plans
or operations," and "Business - Regulation," insofar as all
such statements constitute a summary of the legal matters,
documents or proceedings referred to therein, are accurate and
constitute a fair summary thereof.
(iii) All Licenses and authorizations issued by the
FCC and state authorities governing telecommunications matters
required for the operation of the business of the Company and
the Subsidiaries, as to the best of our knowledge, such
business is being operated, are in full force and effect,
except where the failure to have such License would not result
in a Material Adverse Change. There are no pending
modifications or amendments to the Licenses, or any revocation
proceedings pending with respect to any of the Licenses which,
if implemented or adversely decided, would result in a
Material Adverse Change. To the best of our knowledge, all
fees due and payable to governmental authorities pursuant to
the rules governing Licenses have been paid, except where the
failure to pay any such fees would not result in a Material
Adverse Change. To the best of our knowledge, no event has
occurred with respect to the Licenses which, with the giving
notice or the lapse of time or both, would constitute grounds
for the revocation of any Licenses. To the best of our
knowledge, each of the Company and the Subsidiaries is in
compliance in all material respects with the terms of the
Licenses, as applicable, and to the best of our knowledge,
there is no condition, event or occurrence existing, nor is
there any proceeding being conducted of which we have received
notice, nor, to the best of our knowledge, is there any
proceeding threatened, by any governmental authority, which
would cause the termination, suspension, cancellation or
nonrenewal of any of the Licenses, or the imposition of any
penalty or fine (that is material to the Company and the
Subsidiaries, taken as a whole) by any regulatory authority
C-1
Annex A
Form of Initial Purchaser Letter
[Initial Purchaser's Letterhead]
[Date]
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (xxx) xxx-xxxx
Attn: [ ]
Re: ▇▇▇▇▇▇ Communications Corporation 8?% Senior Notes due 2013
Ladies and Gentleman:
We refer to the Purchase Agreement, dated September 12, 2003. Pursuant to
Section 12 of the Purchase Agreement, we are pleased to confirm our agreement to
purchase $[ ] aggregate principal amount of Notes as described in the Purchase
Agreement. By executing this letter, we agree to be bound by the terms and the
conditions of the Purchase Agreement.
Our decision to purchase Notes is based on an independent investigation of the
Company and not on reliance upon any material furnished to us by ▇▇▇▇▇▇ Brothers
Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and Bear, ▇▇▇▇▇▇▇ & Co. Inc. as the
Representatives, or any of their respective subsidiaries or affiliates, which,
if so furnished, are hereby acknowledged by us to have been for informational
purposes only and without representation or warranty. We agree that allocations
will be made at the sole discretion of the Company and the Representatives.
Very truly yours,
---------------------------------
Institution:
Name:
Title
Telephone Number:
Fax Number:
Please return this form, by fax, to the attention of [ ], fax
(xxx) xxx-xxxx, no later than 5:00 PM
New York time on _____________, 2003.
D-1