Exhibit 10.2
EXECUTION COPY
$450,000,000
TRITEL PCS, INC.
10 3/8% Senior Subordinated Notes due 2011
PURCHASE AGREEMENT
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January 19, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Banc of America Securities LLC
TD Securities (USA) Inc.
c/▇ ▇▇▇▇▇▇ Brothers Inc.
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
Tritel PCS, Inc., a Delaware corporation (the "Company"), proposes,
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upon the terms and considerations set forth herein, to issue and sell to you, as
the initial purchasers (the "Initial Purchasers"), $450,000,000 in aggregate
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principal amount of its 10 3/8% senior subordinated notes due 2011 (the "Notes"
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and, together with the Exchange Notes (as defined below), the "Securities"). The
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Notes will (i) have terms and provisions which are summarized in the Offering
Memorandum (as defined below in Section 1) dated as of the date hereof and (ii)
are to be issued pursuant to an Indenture (the "Indenture") to be entered into
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among the Company, the Guarantors (as defined below) and Firstar Bank, N.A., as
trustee (the "Trustee"). The Company's obligations under the Notes, including
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the due and punctual payment of interest on the Notes, will be unconditionally
guaranteed by Tritel, Inc., the parent of the Company, and by Tritel
Communications, Inc. and Tritel Finance, Inc., two of the subsidiaries of the
Company, and in the future, by certain other subsidiaries of the Company that
incur indebtedness (together, the "Guarantors"). This is to confirm the
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agreement concerning the purchase of the Notes from the Company by the Initial
Purchasers. Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Offering Memorandum.
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1. Preliminary Offering Memorandum and Offering Memorandum. 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,
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dated January 12, 2001 (the "Preliminary Offering Memorandum") and a final
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offering memorandum, dated January 19, 2001 (the "Offering Memorandum" and,
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together with the Preliminary Offering Memorandum, the "Offering Documents"),
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relating to the Company and the Notes. Any references herein to the Offering
Documents shall be deemed to include all amendments and supplements thereto. The
Company and each of the Guarantors hereby confirms that it has authorized the
use of the Offering Documents in connection with the offering and resale of the
Notes by the Initial Purchasers.
The Company proposes to issue and sell to the Initial Purchasers
$450,000,000 principal amount of its Notes.
It is understood and acknowledged that upon original issuance thereof,
and until such time as the same is no longer required under the applicable
requirements of the Securities Act, the Notes (and all securities issued in
exchange therefor, in substitution thereof) shall bear the following legend:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR
ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A 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, (D) PURSUANT TO OFFERS AND SALES THAT
OCCUR OUTSIDE THE
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UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT,
(E) TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED
INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM
PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION
IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE.
Each Security evidencing a Global Security offered and sold to QIBs
(as defined below) pursuant to Rule 144A shall bear a legend in substantially
the following form:
EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE
SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS
OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
Each Definitive Security (as defined in the Indenture) shall bear the
following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS
SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS.
The Initial Purchasers have advised the Company that they will make
offers (the "Exempt Resales") of the Notes purchased by them hereunder on the
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terms set forth in the Offering Memorandum, solely to (i) persons (each, a "144A
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Purchaser") whom they reasonably believe to be "qualified institutional buyers"
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as defined in Rule 144A under the Securities Act ("QIBs") and (ii) outside the
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United States to certain persons in offshore transactions in reliance on
Regulation S under the Securities Act ("Regulations") specified in clauses (i)
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and (ii) being referred to herein as the "Eligible Purchasers". The Initial
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Purchasers will offer the Notes to Eligible Purchasers initially at a price
equal to 100% of the principal amount thereof. Such price may be changed at any
time without notice.
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Holders (including subsequent transferees) of the Notes will have the
registration rights set forth in the exchange and registration rights agreement
(the "Exchange and Registration Rights Agreement", to be dated the Closing Date
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(as defined in Section 4 herein), in substantially the form of Exhibit A hereto,
for so long as such Notes constitute "Transfer Restricted Securities" (as
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defined in the Exchange and Registration Rights Agreement). Pursuant to the
Exchange and Registration Rights Agreement, the Company will agree to file with
the Securities and Exchange Commission (the "Commission") under the
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circumstances set forth therein, a registration statement under the Securities
Act (the "Registration Statement") or under certain circumstances, a shelf
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registration statement pursuant to Rule 415 under the Securities Act (the "Shelf
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Registration Statement") relating to the Company's Notes, to be offered in
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exchange for the Notes (the "Exchange Notes").
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2. Representations, Warranties and Agreements of the Company. The
Company and each of the Guarantors represent and warrant to, and agree with, the
several Initial Purchasers on and as of the date hereof and the Closing Date
that:
(a) Each of the Offering Documents, as of its respective date, did
not, and on the Closing Date the Offering Memorandum will not, contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that the Company and each of the Guarantors make no
representation or warranty as to information contained in or omitted from
the Offering Documents in reliance upon and in conformity with written
information relating to the Initial Purchasers furnished to the Company by
or on behalf of any Initial Purchaser specifically for use therein (the
"Initial Purchasers' Information").
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(b) Each of the Offering Documents, as of its respective date,
contains all of the information that, if requested by a prospective
purchaser of the Notes, would be required to be provided to such
prospective purchaser pursuant to Rule 144A(d)(4) under the Securities Act.
(c) The Offering Documents with respect to the Notes have been
prepared by the Company and each of the Guarantors for use by the Initial
Purchasers in connection with the Exempt Resales. No order or decree
preventing the use of the Offering Documents, or any order asserting that
the transactions contemplated by this Agreement are subject to the
registration requirements of the Securities Act, has been issued and no
proceeding for that purpose has commenced or is pending or, to the
knowledge of the Company or any of the Guarantors, is contemplated.
(d) Assuming the accuracy of the representations and warranties of
the Initial Purchasers contained in Section 3 and their compliance with the
agreements set forth therein, it is not necessary, in connection with the
issuance and sale of the Notes to the Initial Purchasers and the offer,
resale and delivery of the Notes by the Initial Purchasers in the
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manner contemplated by this Agreement and the Offering Memorandum, to
register the Notes under the Securities Act or to qualify the Indenture
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
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Act").
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(e) Except as set forth in Exhibit B hereto, Tritel, Inc. and the
Company have no subsidiaries and hold no minority interest in any entity.
Tritel, Inc., the Company and the Company's subsidiaries have been duly
incorporated or formed and are validly existing as corporations, limited
liability companies or limited partnerships in good standing under the laws
of their respective jurisdictions of incorporation or formation, are duly
qualified to do business and are in good standing as foreign corporations,
limited liability companies or limited partnerships in each jurisdiction in
which their respective ownership or lease of property or the conduct of
their respective businesses requires such qualification, and have all power
and authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged, except where the failure
to so qualify or have such power or authority could not, singularly or in
the aggregate, be reasonably expected to have a material adverse effect on
the condition (financial or otherwise), results of operations, business or
business prospects of Tritel, Inc., the Company and the Company's
subsidiaries taken as a whole (a "Material Adverse Effect").
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(f) As of the Closing Date, all of the outstanding shares of capital
stock of the Company have been duly and validly authorized and issued and
are fully paid and non-assessable; and the capital stock of the Company
conforms in all material respects to the description thereof set forth in
Exhibit C attached hereto. All of the outstanding shares of capital stock
of Tritel, Inc. and each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and,
except as set forth on Exhibit C hereto, are owned directly or indirectly
by the Company or TeleCorp PCS, Inc., in the case of Tritel, Inc., free and
clear of any lien, charge, encumbrance, security interest, restriction upon
voting or transfer or any other claim of any third party, other than liens,
charges, encumbrances and security interests created by the Credit
Agreement dated as of March 31, 1999, among Tritel, Inc., the Company, the
lenders identified therein, Toronto Dominion (Texas), Inc., as
administrative agent for the lenders and the financial institutions
signatory thereto, as lenders. The table under the heading "Capitalization"
in the Offering Memorandum accurately sets forth the Company's
capitalization as of September 30, 2000, and as of September 30, 2000, as
adjusted for the sale of the Notes and the recapitalization of Tritel, Inc.
after the merger of Tritel, Inc. and TeleCorp Wireless, Inc. into two
wholly-owned subsidiaries of TeleCorp PCS, Inc.
(g) Each of the Company and the Guarantors has full right, power and
authority to execute and deliver this Agreement, the Indenture, the
Exchange and Registration Rights Agreement and the Notes (in the case of
the Company only) (collectively, the "Transaction Documents") and to
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perform its obligations hereunder and thereunder; and all corporate actions
required to be taken for the due and proper authorization, execution and
delivery of
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each of the Transaction Documents and the consummation of the transactions
contemplated thereby has been duly and validly taken.
(h) This Agreement has been duly authorized, executed and delivered
by the Company and each of the Guarantors and constitutes a valid and
legally binding agreement of the Company and each of the Guarantors.
(i) The Exchange and Registration Rights Agreement has been duly
authorized by the Company and each of the Guarantors and, when duly
executed and delivered in accordance with its terms by each of the parties
thereto, will constitute a valid and legally binding agreement of the
Company and each of the Guarantors enforceable against the Company and each
of the Guarantors in accordance with its terms, except to the extent that
such enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law).
(j) The Indenture has been duly authorized by the Company and each of
the Guarantors and, when duly executed and delivered in accordance with its
terms by each of the parties thereto, will constitute a valid and legally
binding agreement of the Company and each of the Guarantors enforceable
against the Company and each of the Guarantors in accordance with its
terms, except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally and
by general equitable principles (whether considered in a proceeding in
equity or at law). On the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act and the
rules and regulations of the Commission applicable to an indenture which is
qualified thereunder.
(k) The Notes have been duly authorized by the Company and each of
the Guarantors and, when duly executed, authenticated, issued and delivered
as provided in the Indenture and paid for as provided herein, will be duly
and validly issued and outstanding and will constitute valid and legally
binding obligations of the Company, as issuer, and each of the Guarantors,
as guarantor, entitled to the benefits of the Indenture and enforceable
against the Company as issuer, and each of the Guarantors, as guarantor, in
accordance with their terms, except to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether considered in
a proceeding in equity or at law).
(l) The Exchange Notes that may be issued in exchange for the Notes
pursuant to the Exchange and Registration Rights Agreement have been duly
authorized by the Company, and, when duly executed, authenticated, issued
and delivered as provided in the Indenture
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to the holders of Notes who acquire such Exchange Notes pursuant to the
exchange offer contemplated by the Exchange and Registration Rights
Agreement, will be duly and validly issued and outstanding, and will
constitute valid and binding obligations of the Company and each of the
Guarantors entitled to the benefits of the Indenture and enforceable in
accordance with their terms, except to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether considered in
a proceeding in equity or at law).
(m) Each Transaction Document and each other document described in
the Offering Memorandum conforms in all material respects to the
description thereof contained in the Offering Memorandum.
(n) The execution, delivery and performance by the Company and each
of the Guarantors of each of the Transaction Documents to which each is a
party, the issuance, authentication, sale and delivery of the Notes and
compliance by the Company and each of the Guarantors with the terms thereof
and the consummation of the transactions contemplated by the Transaction
Documents (1) will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of Tritel, Inc., the Company or any of the Company's
subsidiaries (other than as provided by the Indenture) pursuant to, any
material indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which Tritel, Inc., the Company or any
of the Company's subsidiaries is a party or by which Tritel, Inc., the
Company or any of the Company's subsidiaries is bound or to which any of
the property or assets of Tritel, Inc., the Company or any of the Company's
subsidiaries is subject, nor will such actions result in any violation of
the provisions of the charter or by-laws of Tritel, Inc., the Company or
any of the Company's subsidiaries or any statute or any judgment, order,
decree, rule or regulation of any court or arbitrator or governmental
agency or body having jurisdiction over the Company or any of the
Guarantors or any of their properties or assets, except where such
conflict, breach, violation, default or lien, change or encumbrance would
not, singularly or in the aggregate, have a Material Adverse Effect; and
(2) no consent, approval, authorization or order of, or filing or
registration with, any such court or arbitrator or governmental agency or
body under any such statute, judgment, order, decree, rule or regulation is
required for the execution, delivery and performance by the Company and
each of the Guarantors of each of the Transaction Documents to which each
is a party, the issuance, authentication, sale and delivery of the Notes
and compliance by the Company and each of the Guarantors with the terms
thereof and the consummation of the transactions contemplated by the
Transaction Documents, except for such consents, approvals, authorizations,
filings, registrations or qualifications (i) which shall have been obtained
or made prior to the Closing Date, (ii) as may be required to be obtained
or made under the Securities Act and the rules and regulations promulgated
thereunder (the "Rules and Regulations") and applicable state securities
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laws as provided in the Exchange and Registration Rights Agreement, (iii)
the
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failure to obtain (A) could not reasonably be expected to have a Material
Adverse Effect or (B) would not materially and adversely affect the legal,
valid and binding obligations of the Company or any of the Guarantors under
the Transaction Documents or the ability of the Company or any of the
Guarantors to perform its obligations under any of the Transaction
Documents or (iv) which are otherwise not material in the context of the
sale of the Notes.
(o) To the best knowledge of the Company, KPMG LLP are independent
certified public accountants with respect to Tritel, Inc., the Company and
the Company's subsidiaries within the meaning of Rule 101 of the Code of
Professional Conduct of the American Institute of Certified Public
Accountants ("AICPA") and its interpretations and rulings thereunder. The
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historical financial statements (including the related notes) contained in
the Offering Memorandum comply in all material respects with the
requirements applicable to a registration statement on Form S-1 under the
Securities Act (except that disclosure of earnings per share and certain
supporting schedules are omitted); such financial statements have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods covered thereby and fairly
present the financial position of the entities purported to be covered
thereby at the respective dates indicated and the results of their
operations and their cash flows for the respective periods indicated; and
the financial information contained in the Offering Memorandum under the
headings "Summary--Summary Historical Consolidated Financial and Other
Data", "Capitalization", "Selected Historical Financial Information" and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" is derived from the accounting records of the entities covered
thereby and fairly presents the information purported to be shown thereby.
The other historical financial information and data included in the
Offering Memorandum are, in all material respects, fairly presented.
(p) There are no legal or governmental proceedings pending to which
Tritel, Inc., the Company or any of the Company's subsidiaries is a party
or of which any property or assets of Tritel, Inc., the Company or any of
the Company's subsidiaries is the subject, other than proceedings described
in the Offering Memorandum which (i) singularly or in the aggregate, if
determined adversely to Tritel, Inc., the Company or any of the Company's
subsidiaries, could reasonably be expected to have a Material Adverse
Effect or (ii) question the validity or enforceability of any of the
Transaction Documents or any action taken or to be taken pursuant thereto;
and to the best knowledge of the Company, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(q) To the best knowledge of the Company, no action has been taken
and no statute, rule, regulation or order has been enacted, adopted or
issued by any governmental agency or body which prevents the issuance of
the Notes or suspends the sale of the Notes in any jurisdiction; no
injunction, restraining order or order of any nature by any federal or
state court of competent jurisdiction has been issued with respect to
Tritel, Inc., the Company or any of the Company's subsidiaries which would
prevent or suspend the issuance or sale of the Notes or the use of the
Offering Documents in any jurisdiction; no action, suit or
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proceeding is pending against or, to the best knowledge of the Company,
threatened against or affecting Tritel, Inc., the Company or any of the
Company's subsidiaries before any court or arbitrator or any governmental
agency, body or official, domestic or foreign, which could reasonably be
expected to interfere with or adversely affect the issuance of the Notes or
in any manner draw into question the validity or enforceability of any of
the Transaction Documents or any action taken or to be taken pursuant
thereto; and the Company has complied with any and all requests by any
securities authority in any jurisdiction for additional information to be
included in the Offering Documents.
(r) Neither Tritel, Inc., the Company nor any of the Company's
subsidiaries is (i) in violation of its charter, by-laws, operating
agreement or limited partnership agreement, as appropriate, (ii) in
default, and no event has occurred which, with notice or lapse of time or
both, would constitute a default, in the due performance or observance of
any term, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument to which it is a party or by which it is bound or to which any
of its property or assets is subject or (iii) in violation of any law,
ordinance, governmental rule, regulation or court decree to which it or its
property or assets may be subject, except, in the case of clause (ii) or
clause (iii), for any default or violation that could not reasonably be
expected to have a Material Adverse Effect.
(s) Except as disclosed in the Offering Memorandum, Tritel, Inc., the
Company and each of the Company's subsidiaries possess all material
licenses, certificates, authorizations and permits issued by, and have made
all declarations and filings with, the appropriate federal, state or
foreign regulatory agencies or bodies which are necessary or desirable for
the ownership of their respective properties or the conduct of their
respective businesses as described in the Offering Memorandum, except where
the failure to possess or make the same would not, singularly or in the
aggregate, have a Material Adverse Effect, and neither Tritel, Inc., the
Company nor any of the Company's subsidiaries has received notification of
any revocation or modification of any such license, certificate,
authorization or permit or has any reason to believe that any such license,
certificate, authorization or permit will not be renewed in the ordinary
course.
(t) Tritel, Inc., the Company and each of the Company's subsidiaries
have filed all federal, state, local and foreign income and franchise tax
returns required to be filed through the date hereof and have paid all
taxes due thereon, and no tax deficiency has been determined adversely to
Tritel, Inc., the Company or any of the Company's subsidiaries which has
had (nor does Tritel, Inc., the Company or any of the Company's
subsidiaries have any knowledge of any tax deficiency which, if determined
adversely to Tritel, Inc., the Company or any of the Company's
subsidiaries, could reasonably be expected to have) a Material Adverse
Effect.
(u) Neither Tritel, Inc., the Company nor any of the Company's
subsidiaries is (i) an "investment company" or a company "controlled by" an
investment company within the
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meaning of the Investment Company Act of 1940, as amended (the "Investment
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Company Act"), and the rules and regulations of the Commission thereunder
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or (ii) a "holding company" or a "subsidiary company" of a holding company
or an "affiliate" thereof within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
(v) Tritel, Inc., the Company and each of the Company's subsidiaries
maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability; (iii) access to financial assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences to the extent necessary.
(w) Tritel, Inc., the Company and each of the Company's subsidiaries
have insurance covering their respective properties, operations, personnel
and businesses, which insurance is in amounts and insures against such
losses and risks as are adequate to protect Tritel, Inc., the Company and
the Company's subsidiaries and their respective businesses, determined by
reference to the insurance maintained by other companies in the wireless
communications industry. Neither Tritel, Inc., the Company nor any of the
Company's subsidiaries has received notice from any insurer or agent of
such insurer that capital improvements or other expenditures are required
or necessary to be made in order to continue such insurance.
(x) Except as disclosed in the Offering Memorandum, Tritel, Inc., the
Company and each of the Company's subsidiaries own or possess adequate
rights to use all patents, patent applications, trademarks, service marks,
trade names, trademark registrations, service mark registrations,
copyrights, licenses and know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) necessary for the conduct of their respective
businesses, except where the failure to possess such rights could not
reasonably be expected to have a Material Adverse Effect; and the conduct
of their respective businesses will not conflict in any respect with, and
Tritel, Inc., the Company and the Company's subsidiaries have not received
any notice of any claim of conflict with, any such rights of others that,
if determined adversely to Tritel, Inc., the Company or any of the
Company's subsidiaries would, individually or in the aggregate, have a
Material Adverse Effect.
(y) Tritel, Inc., the Company and each of the Company's subsidiaries
have good and marketable title in fee simple to, or have valid rights to
lease or otherwise use, all items of real and personal property which are
material to the business of Tritel, Inc., the Company and the Company's
subsidiaries, in each case free and clear of all liens, encumbrances,
claims and defects and imperfections of title except such as (i) do not
materially interfere with the use made and proposed to be made of such
property by Tritel, Inc., the Company and the
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Company's subsidiaries or (ii) could not reasonably be expected to have a
Material Adverse Effect.
(z) No labor disturbance by or dispute with the employees of Tritel,
Inc., the Company or any of the Company's subsidiaries exists or, to the
best knowledge of the Company, is contemplated or threatened.
(aa) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section
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4975 of the Internal Revenue Code of 1986, as amended from time to time
(the "Code")) or "accumulated funding deficiency" (as defined in Section
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302 of ERISA) or any of the events set forth in Section 4043(b) of ERISA
(other than events with respect to which the 30-day notice requirement
under Section 4043 of ERISA has been waived) has occurred with respect to
any employee benefit plan of Tritel, Inc., the Company or any of the
Company's subsidiaries which could reasonably be expected to have a
Material Adverse Effect; each such employee benefit plan is in compliance
in all material respects with applicable law, including ERISA and the Code,
except where such noncompliance, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect; Tritel, Inc.,
the Company and each of the Company's subsidiaries have not incurred and do
not expect to incur liability under Title IV of ERISA with respect to the
termination of, or withdrawal from, any pension plan for which Tritel,
Inc., the Company or any of the Company's subsidiaries would have any
liability; and each such pension plan that is intended to be qualified
under Section 401(a) of the Code has filed for or received a favorable
determination letter from the Internal Revenue Service and the Company has
not amended any such pension plan in any way that could reasonably be
expected to cause the loss of such qualification.
(bb) There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission or other release of any kind of
toxic or other wastes or other hazardous substances by, due to or caused by
Tritel, Inc., the Company or any of the Company's subsidiaries (or, to the
best knowledge of the Company, any other entity (including any predecessor)
for whose acts or omissions Tritel, Inc., the Company or any of the
Company's subsidiaries is or could reasonably be expected to be liable)
upon any of the property now or previously owned or leased by Tritel, Inc.,
the Company or any of the Company's subsidiaries, or upon any other
property, in violation of any statute or any ordinance, rule, regulation,
order, judgment, decree or permit or which would, under any statute or any
ordinance, rule (including rule of common law), regulation, order,
judgment, decree or permit, give rise to any liability, except for any
violation or liability that could not reasonably be expected to have,
singularly or in the aggregate with all such violations and liabilities, a
Material Adverse Effect; and there has been no disposal, discharge,
emission or other release of any kind onto such property or into the
environment surrounding such property of any toxic or other wastes or other
hazardous substances with respect to which the Company has knowledge,
except for any such disposal, discharge, emission or other release
12
of any kind which could not reasonably be expected to have, singularly or
in the aggregate with all such discharges and other releases, a Material
Adverse Effect.
(cc) Neither the Company nor, to the best knowledge of the Company and
each of the Guarantors, any director, officer, agent, employee or other
person associated with or acting on behalf of Tritel, Inc., the Company or
any of the Company's subsidiaries has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any
unlawful bribe, rebate, payoff, influence payment, kickback or other
unlawful payment.
(dd) Except as described in the Offering Memorandum, there are no
outstanding subscriptions, rights, warrants, calls or options to acquire,
or instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, any shares of
capital stock of or other equity or other ownership interest in Tritel,
Inc., the Company or any of the Company's subsidiaries.
(ee) Neither Tritel, Inc., the Company nor any of the Company's
subsidiaries owns any "margin securities" as that term is defined in
Regulation U of the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board"), and none of the proceeds of the sale of the Notes
---------------------
will be used, directly or indirectly, for the purpose of purchasing or
carrying any margin security, for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry any margin
security or for any other purpose which might cause any of the Notes to be
considered a "purpose credit" within the meanings of Regulation T, U or X
of the Federal Reserve Board.
(ff) Neither Tritel, Inc., the Company nor any of the Company's
subsidiaries is a party to any contract, agreement or understanding with
any person that would give rise to a valid claim against the Company or the
Initial Purchasers for a brokerage commission, finder's fee or like payment
in connection with the offering and sale of the Notes.
(gg) The Notes satisfy the eligibility requirements of Rule 144A(d)(3)
under the Securities Act.
(hh) None of the Company, any of its affiliates or any person acting
on its or their behalf, with respect to the Notes, has engaged or will
engage in any directed selling efforts (as such term is defined in
Regulation S), and all such persons have complied and will comply with the
offering restrictions requirement of Regulation S to the extent applicable.
(ii) Neither the Company nor any of its affiliates has, directly or
through any agent, sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of, any
13
security (as such term is defined in the Securities Act), which is or will
be integrated with the sale of the Notes in a manner that would require
registration of the Notes under the Securities Act.
(jj) None of the Company, any of its affiliates or any other person
acting on its or their behalf has engaged, in connection with the offering
of the Notes, in any form of general solicitation or general advertising
within the meaning of Rule 502(c) under the Securities Act.
(kk) There are no securities of the Company registered under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or listed
------------
on a national securities exchange or quoted in a U.S. automated inter-
dealer quotation system.
(ll) Neither the Company nor any of the Guarantors has taken or will
take, directly or indirectly, any action prohibited by Regulation M under
the Exchange Act in connection with the offering of the Notes.
(mm) No forward-looking statement (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act) contained in
either of the Offering Documents has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
(nn) None of Tritel, Inc., the Company or any of the Company's
subsidiaries does business with the government of Cuba or with any person
or affiliate located in Cuba within the meaning of Florida Statutes Section
517.075.
(oo) Since the date as of which information is given in the Offering
Memorandum, (i) there has been no material adverse change or any
development involving a prospective material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs,
management or business prospects of Tritel, Inc., the Company and the
Company's subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business, (ii) neither the Company nor any of the
Guarantors has incurred any material liability or obligation, direct or
contingent, other than in the ordinary course of business, (iii) neither
the Company nor any of the Guarantors has entered into any material
transaction other than in the ordinary course of business and (iv) there
has not been any change in the capital stock or long-term debt of the
Company or any of the Guarantors, or any dividend or distribution of any
kind declared, paid or made by the Company or any of the Guarantors on any
class of their respective capital stock.
(pp) (i) Tritel, Inc., the Company and the Company's subsidiaries have
the full use and benefit of all broadband personal communications services
("PCS") licenses issued by the Federal Communications Commission (the
---
"FCC") to Tritel, Inc., the Company and the Company's subsidiaries (the
---
"Licenses") necessary to operate assets constituting a radio
--------
14
communications system authorized under the rules for wireless
communications services (including any license and the network, marketing,
distribution, sales, customer interface and operations functions relating
thereto) owned and operated by Tritel, Inc., the Company or any of the
Company's subsidiaries in the Major Trading Areas (as defined in 47 C.F.R.
(S)24.202) and the Basic Trading Areas (as defined in 47 C.F.R. (S)24.202)
listed on Exhibit D attached hereto and each other area in which Tritel,
Inc., the Company or any of the Company's subsidiaries conducts a broadband
PCS business; (ii) such Licenses have been duly issued by the FCC, are (in
the case of Licenses listed on Exhibit D) or will be held by a direct or
indirect wholly owned subsidiary of the Company and are in full force and
effect and (iii) Tritel, Inc., the Company and the Company's subsidiaries
are in compliance in all material respects with all of the provisions of
each such License held by any of them.
(qq) (i) Tritel, Inc., the Company and each of the Company's
subsidiaries are in compliance in all material respects with the
Communications Act of 1934, and any similar or successor federal statute,
and the rules and regulations and published policies of the FCC thereunder,
as amended and as in effect from time to time (collectively, the
"Communications Act"), and all requirements of the FCC, including the "very
------------------
small business" requirements; (ii) except as set forth in the Offering
Memorandum, the Company has no knowledge of any investigation, notice of
apparent liability, violation, forfeiture or other order or complaint
issued by or before the FCC, or of any other proceedings (other than
proceedings relating to the wireless communications industries generally)
of or before the FCC, which could reasonably be expected to have a Material
Adverse Effect; (iii) no event has occurred which (A) has resulted in, or
after notice or lapse of time or both would result in, revocation,
suspension, adverse modifications, non-renewal, impairment, restriction or
termination of, or order of forfeiture with respect to, any License in any
respect which could reasonably be expected to have a Material Adverse
Effect or (B) affects or could reasonably be expected in the future to
affect any of the rights of Tritel, Inc., the Company or any of the
Company's subsidiaries under any License held by Tritel, Inc., the Company
or any of the Company's subsidiaries in any respect which could reasonably
be expected to have a Material Adverse Effect; (iv) Tritel, Inc., the
Company and each of the Company's subsidiaries have duly filed in a timely
manner all material filings, reports, applications, documents, instruments
and information required to be filed under the Communications Act, and all
such filings were when made true, correct and complete in all material
respects; and (v) the Company has no reason to believe that each License of
Tritel, Inc., the Company or any of the Company's subsidiaries will not be
renewed in the ordinary course.
(rr) The Company is in compliance in all material respects with its
"Minimum Build-Out Plan", as defined in the TeleCorp PCS Stockholders'
Agreement dated November 13, 2000, among AT&T Wireless PCS Inc., the Cash
Equity Investors (as identified therein), the Management Stockholders (as
identified therein), other stockholders, and TeleCorp PCS, Inc.
3. Purchase of the Notes by the Initial Purchasers; Agreements to
Sell, Purchase and Resell. (a) The Company and each of the Guarantors
hereby agree, on the basis of the
15
representations, warranties and agreements of the Initial Purchasers
contained herein and subject to all the terms and conditions set forth
herein, to issue and sell to the Initial Purchasers and, upon the basis of
the representations, warranties and agreements of the Company and each of
the Guarantors herein contained and subject to all the terms and conditions
set forth herein, each Initial Purchaser agrees, severally and not jointly,
to purchase from the Company, at a purchase price of 97.5% the principal
amount thereof, the principal amount of Notes set forth opposite the name
of such Initial Purchaser in Schedule I hereto. The Company and each of the
Guarantors shall not be obligated to deliver any of the Notes to be
delivered hereunder except upon payment for all of the Notes to be
purchased as provided herein.
(b) Each of the Initial Purchasers hereby represents and warrants
to the Company and each of the Guarantors that it will offer the Notes for
sale upon the terms and conditions set forth in this Agreement and in the
Offering Memorandum. Each of the Initial Purchasers hereby represents and
warrants to, and agrees with, the Company and each of the Guarantors that
such Initial Purchaser (i) is a QIB with such knowledge and experience in
financial and business matters as are necessary in order to evaluate the
merits and risks of an investment in the Notes; (ii) is purchasing the
Notes pursuant to a private sale exempt from registration under the Act;
(iii) in connection with the Exempt Resales, will solicit offers to buy the
Notes only from, and will offer to sell the Notes only to, the Eligible
Purchasers in accordance with this Agreement and on the terms contemplated
by the Offering Memorandum; and (iv) will not offer or sell the Notes, nor
has it offered or sold the Notes by, or otherwise engaged in, any form of
general solicitation or general advertising (within the meaning of
Regulation D; including, but not limited to, advertisements, articles,
notices or other communications published in any newspaper, magazine, or
similar medium or broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general solicitation or
general advertising) in connection with the offering of the Notes. The
Initial Purchasers have advised the Company that they will offer the Notes
to Eligible Purchasers at a price initially equal to 100% of the principal
amount thereof, plus accrued interest, if any, from the date of issuance of
the Notes. Such price may be changed by the Initial Purchasers at any time
thereafter without notice.
(c) Each of the Initial Purchasers understands that the Company
and each of the Guarantors and, for purposes of the opinions to be
delivered to the Initial Purchasers pursuant to Sections 7(d) and 7(e) of
this Agreement, counsel to the Company and counsel to the Initial
Purchasers, will rely upon the accuracy and truth of the foregoing
representations, warranties and agreements and the Initial Purchasers
hereby consents to such reliance.
4. Delivery of and Payment for the Notes; Delivery of the Notes
and Payment Therefor. (a) Delivery to the Initial Purchasers of and payment
for the Notes shall be made at the office of Cravath, Swaine & ▇▇▇▇▇, at
9:00 a.m., New York City time, on January 24, 2001 (the "Closing Date").
------------
The place of closing for the Notes and the Closing Date may be varied by
agreement between each of the Initial Purchasers and the Company.
16
(b) The Notes will be delivered to the Initial Purchasers against
payment of the purchase price therefor in immediately available funds. The
Notes will be evidenced by one or more single global securities in
definitive form (the "Global Note") and/or by additional definitive
-----------
securities, and will be registered, in the case of the Global Note, in the
name of Cede & Co. as nominee of The Depository Trust Company ("DTC"), and
in the other cases, in such names and in such denominations as ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and ▇▇▇▇▇▇ Brothers Inc., on behalf of the Initial
Purchasers, shall request prior to 9:30 a.m., New York City time, on the
second business day preceding the Closing Date. The Notes to be delivered
to the Initial Purchasers shall be made available to the Initial Purchasers
in New York City for inspection and packaging to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
and ▇▇▇▇▇▇ Brothers Inc., on behalf of the Initial Purchasers, not later
than 9:30 a.m., New York City time, on the business day next preceding the
Closing Date.
5. Further Agreements of the Company and each of the Guarantors.
The Company and each of the Guarantors further agree:
(a) At all times prior to the resale of the Notes by the Initial
Purchasers, to advise the Initial Purchasers promptly and, if
requested, confirm such advice in writing, of the happening of any
event which makes any statement of a material fact made in the
Offering Memorandum untrue or which requires the making of any
additions to or changes in the Offering Memorandum (as amended or
supplemented from time to time) to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
to advise the Initial Purchasers of any order of any governmental
authority preventing or suspending the use of the Offering Documents,
of any suspension of the qualification of the Notes for offering or
sale in any jurisdiction and of the initiation or threatening of any
proceeding for any such purpose promptly upon receipt of notice of
such order, suspension or initiation or threatening of any such
proceeding; and, prior to the resale of the Notes by the Initial
Purchasers, to use its best efforts to prevent the issuance of any
such order preventing or suspending the use of the Offering Documents
or suspending any such qualification and, if any such suspension is
issued, to obtain the lifting thereof at the earliest possible time
and thereafter to use commercially reasonable efforts to prevent the
issuance of any such order preventing or suspending the use of the
Offering Documents or suspending any such qualification and, if any
such suspension is issued, to obtain the lifting thereof at the
earliest possible time.
(b) To furnish to each of the Initial Purchasers, without charge,
as many copies of the Offering Documents (and any supplements and
amendments thereto) as may be reasonably requested.
(c) Prior to making any amendment or supplement to the Offering
Memorandum, the Company and each of the Guarantors shall furnish a
copy thereof to the Initial Purchasers and counsel to the Initial
Purchasers and will not effect any such amendment or supplement to
which the Initial Purchasers shall reasonably object by notice to the
Company and each of the Guarantors after a reasonable period (under
the circumstances) of review.
17
(d) If, at any time prior to completion of the distribution of the
Notes by the Initial Purchasers to subsequent purchasers, any event shall
occur or condition exist as a result of which it is necessary, in the
opinion of counsel for the Initial Purchasers or counsel for the Company
and the Guarantors, to amend or supplement the Offering Memorandum in order
that the Offering Memorandum will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in light of the circumstances
existing at the time it is delivered to a purchaser, or if it is necessary
to amend or supplement the Offering Memorandum to comply with applicable
law, to promptly prepare such amendment or supplement as may be necessary
to correct such untrue statement or omission or so that the Offering
Memorandum, as so amended or supplemented, will comply with applicable law
and to furnish the Initial Purchasers such number of copies as they may
reasonably request.
(e) So long as any of the Notes remain outstanding and is a
"restricted security" within the meaning of Rule 144(a)(3) under the
Securities Act during any period in which the Company and each of the
Guarantors is not subject to and in compliance with Section 13 or 15(d) of
the Exchange Act, to furnish to holders of the Notes and prospective
purchasers of the Notes designated by such holders, upon request of such
holders or such prospective purchasers, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(f) For so long as the Notes are outstanding, the Company and each of
the Guarantors shall furnish to the Initial Purchasers copies of all public
reports and all reports and financial statements furnished by the Company
and each of the Guarantors to the principal national securities exchange
upon which securities of the Company and each of the Guarantors listed
pursuant to requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act or any rule or regulation of the
Commission thereunder.
(g) Promptly from time to time to take such action as the Initial
Purchasers may reasonably request to qualify the Notes for offering and
sale under the securities laws of such jurisdictions as the Initial
Purchasers may reasonably request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the Notes;
provided, however, that in no event will the Company and each of the
Guarantors be obligated to qualify to do business in any jurisdiction where
it is not now so qualified or to take any action which would subject it to
service of process in suits, other than those arising out of the offering
or sale of the Notes, in any jurisdiction where it is not now so subject.
In each jurisdiction in which the Notes have been so qualified, the Company
and each of the Guarantors will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for so long as any of the Notes are outstanding. The Company and
each of the Guarantors will also supply the Initial Purchasers with such
information as is necessary for the determination of the legality of the
Notes for investment under the laws of such jurisdictions as the Initial
Purchasers may reasonably request.
18
(h) For a period of 180 days from the date of the Offering Memorandum,
not to offer for sale, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, or file a registration statement for, or
announce any offer, sale, contract for sale of or other disposition of any
debt securities issued or guaranteed by Tritel, Inc., the Company or any of
the Company's subsidiaries (other than (i) the Notes or the Exchange Notes,
(ii) debt securities issued or guaranteed by Tritel, Inc., the Company or
any of the Company's subsidiaries pursuant to any credit arrangement with a
vendor or supplier or any financial institution acting on behalf of such
vendor or supplier; provided that any such credit arrangement contains
terms prohibiting the remarketing of all debt securities issued or
guaranteed thereunder for a period of not less than 180 days from the date
of the Offering Memorandum, (iii) the 12 3/4% Senior Subordinated Discount
Notes due 2009 issued by the Company pursuant to an Indenture dated May 11,
1999 and (iv) any debt securities issued by Tritel, Inc., the Company or
any of the Company's subsidiaries to the U.S. Government in connection with
the acquisition of any License from the FCC or any debt securities assumed
by Tritel, Inc., the Company or any of the Company's subsidiaries in
connection with the acquisition of any License or any entity engaged in a
Permitted Business).
(i) To provide reasonable assistance to the Initial Purchasers in
arranging for the Notes to be designated Private Offerings, Resales and
Trading through Automated Linkages ("PORTAL") Market securities in
------
accordance with the rules and regulations adopted by the National
Association of Securities Dealers, Inc. ("NASD") relating to trading in the
----
PORTAL Market and for the Notes to be eligible for clearance and settlement
through the DTC.
(j) Not to, and to cause its affiliates not to, sell, offer for sale
or solicit offers to buy or otherwise negotiate in respect of any security
(as such term is defined in the Securities Act) which could be integrated
with the sale of the Notes in a manner which would require registration of
the Notes under the Securities Act.
(k) Except following the effectiveness of the Registration Statement
or the Shelf Registration Statement, as the case may be, not to, and to
cause its affiliates (as defined in Rule 144 under the Securities Act) not
to, solicit any offer to buy or offer to sell the Notes by means of any
form of general solicitation or general advertising (as those terms are
used in Regulation D under the Securities Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act;
and not to offer, sell, contract to sell or otherwise dispose of, directly
or indirectly, any securities under circumstances where such offer, sale,
contract or disposition would cause the exemption afforded by Section 4(2)
of the Securities Act to cease to be applicable to the offering and sale of
the Securities as contemplated by this Agreement and the Offering
Memorandum.
(l) Not to, for two years following the date on which the Notes are
issued, be or become, or be or become owned by, an open-end investment
company, unit investment trust or face-amount certificate company that is
or is required to be registered under Section 8 of
19
the Investment Company Act, and to not be or become, or be or become owned
by, a closed-end investment company required to be registered, but not
registered thereunder.
(m) During the period from the Closing Date until two years after the
Closing Date, without the prior written consent of the Initial Purchasers,
not to, and not permit any of its affiliates to, resell any of the Notes
that have been reacquired by them, except for Notes purchased by the
Company or any of its affiliates and resold in a transaction registered
under the Securities Act.
(n) In connection with the offering of the Notes, until ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Inc. and ▇▇▇▇▇▇ Brothers Inc., on behalf of the Initial Purchasers,
shall have notified the Company of the completion of the resale of the
Notes, not to, and to cause its affiliated purchasers (as defined in
Regulation M under the Exchange Act) not to, either alone or with one or
more other persons, bid for or purchase, for any account in which it or any
of its affiliated purchasers has a beneficial interest, any Notes, or
attempt to induce any person to purchase any Notes; and not to, and to
cause its affiliated purchasers not to, make bids or purchase for the
purpose of creating actual, or apparent, active trading in or of raising
the price of the Notes.
(o) In connection with the offering of the Notes, to make its
officers, employees, independent accountants and legal counsel reasonably
available upon request by the Initial Purchasers.
(p) To furnish to each of the Initial Purchasers on the Closing Date a
copy of the independent accountants' report included in the Offering
Memorandum signed by the accountants rendering such report.
(q) To do and perform all things required to be done and performed by
it under this Agreement that are within its control prior to or after the
Closing Date, and to use commercially reasonable efforts to satisfy all
conditions precedent on its part to the delivery of the Notes.
(r) To not take any action prior to the Closing Date which would
require the Offering Memorandum to be amended or supplemented pursuant to
Section 4(d).
(s) Prior to the Closing Date, not to issue any press release or other
communication directly or indirectly or hold any press conference with
respect to the Company, its condition, financial or otherwise, or earnings,
business affairs or business prospects (except for routine oral marketing
communications in the ordinary course of business and consistent with the
past practices of the Company and of which the Initial Purchasers are
notified), without the prior written consent of the Initial Purchasers,
unless in the judgment of the Company and its counsel, and after
notification to the Initial Purchasers, such press release or communication
is required by law.
20
(t) To apply the net proceeds from the sale of the Notes as set forth
in the Offering Memorandum under the heading "Use of Proceeds".
6. Conditions to the Initial Purchasers' Obligations. The respective
obligations of the several Initial Purchasers hereunder are subject to the
accuracy, on and as of the date hereof and the Closing Date, of the
representations and warranties of the Company and each of the Guarantors
contained herein, to the accuracy of the statements of the Company and each of
the Guarantors and their respective officers made in any certificates delivered
pursuant hereto, to the performance by the Company and each of the Guarantor of
their respective obligations hereunder, and to each of the following additional
terms and conditions:
(a) The Offering Memorandum (and any amendments or supplements
thereto) shall have been printed and copies distributed to the Initial
Purchasers as promptly as practicable on or following the date of this
Agreement or at such other date and time as to which the Initial Purchasers
may agree; and no stop order suspending the sale of the Notes in any
jurisdiction shall have been issued and no proceeding for that purpose
shall have been commenced or shall be pending or threatened.
(b) 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 any untrue statement of a fact
which, in the opinion of counsel for the Initial Purchasers, is material or
omits to state any 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, in light of the circumstances in which they were made, not
misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of the Transaction Documents, the Offering
Memorandum and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be satisfactory in all material
respects to counsel for the Initial Purchasers, the Company and each of the
Guarantors shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon
such matters.
(d) Each of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇,
shall have furnished to the Initial Purchasers its or his written opinion,
as counsel to the Company and general counsel to the Company, respectively,
addressed to the Initial Purchasers and dated the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchasers substantially
to the effect set forth in Exhibits E and F attached hereto, respectively.
Wiley, Rein & Fielding shall have furnished to the Initial Purchasers its
written opinion as special communications counsel to the Company, addressed
to the Initial Purchasers and dated the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchasers substantially to the
effect set forth in Exhibit G attached hereto.
21
(e) The Initial Purchasers shall have received from Cravath, Swaine &
▇▇▇▇▇, counsel to the Initial Purchasers, such opinion or opinions, dated
the Closing Date, with respect to such matters as the Initial Purchasers
may reasonably require, and the Company shall have furnished to such
counsel such documents and information as they may reasonably request for
the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Initial Purchasers a
letter (the "Initial Letter"), dated the date hereof, in form and substance
--------------
reasonably satisfactory to the Initial Purchasers, from KPMG LLP,
independent public accountants, containing statements and information with
respect to the financial statements and certain financial information,
including the financial information contained or referred to in the
Offering Memorandum, as identified by the Initial Purchasers, substantially
to the effect set forth in Exhibit H hereto.
(g) The Company shall have furnished to the Initial Purchasers a
letter (the "Bring-Down Letter") of KPMG LLP, addressed to the Initial
-----------------
Purchasers and dated the Closing Date, (i) confirming that they are
independent public accountants with respect to Tritel, Inc., the Company
and the Company's subsidiaries within the meaning of Rule 101 of the Code
of Professional Conduct of the AICPA and its interpretations and rulings
thereunder, (ii) 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 three business days prior to the
date of the Bring-Down Letter), that the conclusions and findings of such
accountants with respect to the financial information and other matters
covered by the Initial Letter are accurate and (iii) confirming in all
material respects the conclusions and findings set forth in the Initial
Letter.
(h) The Company and each of the Guarantors shall have furnished to the
Initial Purchasers a certificate, dated the Closing Date, of the Chief
Executive Officer and the Chief Financial Officer of the Company and each
of the Guarantors stating that:
(i) such officers have carefully examined the Offering
Memorandum,
(ii) in their opinion, the Offering Memorandum, as of its date,
did 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 in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and since
the date of the Offering Memorandum, no event has occurred which
should have been set forth in a supplement or amendment to the
Offering Memorandum so that the Offering Memorandum (as so amended or
supplemented) would not include any untrue statement of a material
fact and would not omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
22
(iii) as of the Closing Date, the representations and warranties of
the Company or each of the Guarantors, as applicable, in this Agreement are
true and correct in all material respects, the Company or each of the
Guarantors, as applicable, has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder on or
prior to the Closing Date and
(iv) with respect to officers of Tritel, Inc. and the Company only,
subsequent to the date of the most recent financial statements contained in
the Offering Memorandum, there has been no material adverse change in the
financial position or results of operation of Tritel, Inc., the Company or
any of the Company's subsidiaries, or any material change, or any material
development including a prospective material change, in or affecting the
condition (financial or otherwise), results of operations, business or
prospects of Tritel, Inc., the Company and the Company's subsidiaries taken
as a whole, which is not disclosed in the Offering Memorandum.
(i) The Initial Purchasers shall have received on the Closing Date the
Exchange and Registration Rights Agreement executed by the Company and each of
the Guarantors.
(j) The Company, each of the Guarantors and the Trustee shall have
executed and delivered the Indenture, and the Company shall have executed and
delivered, and the Trustee shall have authenticated the Notes on or prior to the
Closing Date.
(k) The Notes shall have been approved by the NASD for trading in the
PORTAL Market.
(l) If any event shall have occurred that requires the Company under
Section 5(d) of this Agreement to prepare an amendment or supplement to the
Offering Memorandum, such amendment or supplement shall have been prepared, the
Initial Purchasers shall have been given a reasonable opportunity to comment
thereon, and copies thereof shall have been delivered to the Initial Purchasers
reasonably in advance of the Closing Date.
(m) There shall not have occurred any invalidation of Rule 144A under the
Securities Act by any court or any withdrawal or proposed withdrawal of any rule
or regulation under the Securities Act or the Exchange Act by the Commission or
any amendment or proposed amendment thereof by the Commission which in the
reasonable judgment of the Initial Purchasers would materially impair the
ability of the Initial Purchasers to purchase, hold or effect resales of the
Notes as contemplated hereby.
(n) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Offering Memorandum
(exclusive of any amendment or supplement thereto), there shall not have been
any change in the capital stock or long-term debt or any change, or any
development involving a prospective change, in or
23
affecting the condition (financial or otherwise), results of operations,
business or prospects of Tritel, the Company and the Company's subsidiaries
taken as a whole, the effect of which, in any such case described above, is, in
the reasonable judgment of the Initial Purchasers, so material and adverse as to
make it impracticable or inadvisable to proceed with the sale or delivery of the
Notes on the terms and in the manner contemplated by this Agreement and the
Offering Memorandum (exclusive of any amendment or supplement thereto).
(o) No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental agency or
body which would, as of the Closing Date, prevent the issuance or sale of the
Notes in any jurisdiction in which issuance or sale of the Notes is contemplated
by the Offering Memorandum; and no injunction, restraining order or order of any
other nature by any federal or state court of competent jurisdiction shall have
been issued as of the Closing Date which would prevent the issuance or sale of
the Notes in any jurisdiction in which the issuance or sale of the Notes is
contemplated by the Offering Memorandum.
(p) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Notes or any of the
Company's other debt securities or preferred stock by any "nationally recognized
statistical rating organization", as such term is defined by the Commission for
purposes of Rule 436(g)(2) of the rules and regulations of the Commission under
the Securities Act, and (ii) no such organization shall have publicly announced
that it has under surveillance or review (other than an announcement with
positive implications of a possible upgrading), its rating of the Notes or any
of the Company's other debt securities or preferred stock.
(q) 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 American Stock Exchange or the over-the-counter
market shall have been suspended or limited, or minimum prices shall have been
established on any such exchange or market by the Commission, by any such
exchange or by any other regulatory body or governmental authority having
jurisdiction, or trading in any securities of the TeleCorp PCS on any exchange
or in the over-the-counter market shall have been suspended, (ii) any moratorium
on commercial banking activities shall have been declared by federal or New York
state authorities, (iii) an outbreak or escalation of hostilities or a
declaration by the United States of a national emergency or war or (iv) a
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) the effect of which, in the case of this clause
(iv), is, in the judgment of the Initial Purchasers, so material and adverse as
to make it impracticable or inadvisable to proceed with the sale or the delivery
of the Notes on the terms and in the manner contemplated by this Agreement and
in the Offering Memorandum (exclusive of any amendment or supplement thereto).
24
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.
7. Termination. The obligations of the Initial Purchasers hereunder
may be terminated 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 Section 6(m), 6(n), 6(o), 6(p), and 6(q) shall have occurred and be
continuing.
8. 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, or those other initial
purchasers satisfactory to the Company and the remaining non-defaulting Initial
Purchasers who so agree, shall have the right, but shall not be obligated, to
purchase, in such proportion as may be agreed upon among them, the aggregate
principal amount of all of the Notes to be purchased on the Closing Date. If the
remaining Initial Purchasers or other initial purchasers satisfactory to the
remaining non-defaulting Initial Purchasers do not elect to purchase the
aggregate principal amount of Notes which the defaulting Initial Purchaser
agreed but failed to purchase on such Closing Date, this Agreement shall
terminate without liability on the part of any of the non-defaulting Initial
Purchasers or the Company, except that the Company will continue to be liable
for the payment of expenses to the extent set forth in Sections 9 and 12 of this
Agreement. 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 Schedule I hereto who, pursuant to this Section 8, purchases Notes
which a defaulting Initial Purchaser agreed but failed to purchase. Any action
taken hereunder will not relieve a defaulting Initial Purchaser from liability
in respect of any default by it under this Agreement.
9. Reimbursement of Initial Purchasers' Expenses. If (a) 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 (b) because any other condition of the
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 8 of
this Agreement 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.
10. Indemnification and Contribution. (a) The Company and each
Guarantor, jointly and severally, shall indemnify and hold harmless each Initial
Purchaser, its affiliates, their respective officers, directors, employees,
representatives and agents and each person, if any, who controls any Initial
Purchaser within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of Sections 10(a) and 10(b) of this
Agreement as an Initial Purchaser), from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof
25
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Notes), to which that Initial Purchaser may
become subject, whether commenced or threatened under the Securities Act, the
Exchange Act, any other federal or statutory law or regulation, at common law 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 in any of the Offering Documents, (ii) the omission or
alleged omission to state in any of the Offering Documents any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, 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 and each
of the Guarantors shall not be liable under this clause (iii) to the extent that
it is determined in a final judgment by a court of 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 or controlling
person promptly upon demand for any legal or other expenses reasonably incurred
by that Initial Purchaser, officer, employee or controlling person in connection
with investigating or defending or preparing to defend against or appearing as a
third party witness in connection with 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 of the Offering Documents, or in any such amendment or supplement, in
reliance upon and in conformity with written information concerning such Initial
Purchaser furnished to the Company through the Initial Purchasers by or on
behalf of any Initial Purchaser specifically for inclusion therein; and
provided, further that with respect to any such untrue statement in or omission
from any related preliminary prospectus, the indemnity agreement contained in
this Section 10 (a) shall not inure to the benefit of any such Initial Purchaser
to the extent that such loss, claim, damage, liability or action of or with
respect to such Initial Purchaser results from the fact that both (A) to the
extent required by applicable law, a copy of the Offering Memorandum was not
sent or given to such person at or prior to the written confirmation of the sale
of such Notes to such person and (B) the untrue statement in or omission from
the related Preliminary Offering Memorandum was corrected in the Offering
Memorandum unless, in either case, such failure to deliver the final prospectus
was a result of non-compliance by the Company with Section 5(b). The foregoing
indemnity agreement is in addition to any liability which the Company or each of
the Guarantors may otherwise have to any Initial Purchaser or to any officer,
employee or controlling person of that Guarantor.
(b) Each Initial Purchaser, severally and not jointly, shall
indemnify and hold harmless the Company, its affiliates, their respective
officers, directors, employees, representatives and agents and each person, if
any, who controls the Company within the meaning of the Securities Act or the
Exchange Act (collectively referred to for purposes of Sections 10(b) and 10(d)
of this Agreement as the Company), from and against any loss, claim, damage or
liability, joint or several,
26
or any action in respect thereof, to which the Company may become subject,
whether commenced or threatened, under the Securities Act or the Exchange Act,
any other federal or state statutory law or regulation, at common law 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 in any of the Offering Documents or (ii) the omission or
alleged omission to state in any of the Offering Documents any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, 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 by or on behalf of that Initial Purchaser specifically for
inclusion therein, and shall 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
10 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 10, 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 10 except to the extent it has
been prejudiced (through the forfeiture of substantive rights or defenses) 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 10. 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 10 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, that an
indemnified party shall have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (i)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (ii) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party,
(iii) a conflict or potential conflict exists (based upon advice of counsel to
the indemnified party) between the indemnified party and the indemnifying party
(in which case the indemnifying party will not have the right to direct the
defense of such action on behalf of the indemnified party) or (iv) the
indemnifying party has not in fact employed counsel reasonably
27
satisfactory to the indemnified party to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties.
It is understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees, disbursements and other charges of more than one
separate firm of attorneys (in addition to any local counsel) at any one time
for all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 10(a) and 10(b) of
this Agreement, shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No indemnifying
party shall 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 its written consent or if there be a final judgment for 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. No indemnifying party shall, without the
prior written consent of the indemnified party (which consent shall not be
unreasonably withheld), effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
The obligations of the Company, each of the Guarantors and the Initial
Purchasers in this Section 10 are in addition to any other liability that the
Company, each of the Guarantors or the Initial Purchasers, as the case may be,
may otherwise have, including in respect of any breaches of representations,
warranties and agreements made herein by any such party.
(d) If the indemnification provided for in this Section 10 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 10(a) or 10(b) of this Agreement 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 and each of the Guarantors 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 and
each of the Guarantors, 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 and each
of the Guarantors, 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 and each of the Guarantors,
on the one hand, and the total underwriting discounts and commissions received
by the Initial Purchasers with respect to the Notes purchased under this
28
Agreement, on the other hand, bear to the total gross proceeds from the offering
of the Notes under 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, each of the Guarantors 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 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 shall be deemed to
include, for purposes of this Section 10(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 10(d), no Initial Purchasers shall be required to contribute any amount
in excess of the amount by which the total discounts and commissions received by
such Initial Purchaser with respect to the Notes purchased by it under this
Agreement 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 10(d) are several in proportion to their respective
underwriting obligations and not joint.
(e) The Initial Purchasers severally confirm and the Company
acknowledges that (i) the penultimate paragraph on the cover page of and (ii)
the fourth, sixth (but only the first, third, sixth and seventh sentences
thereof), seventh (but only the first sentence thereof), eighth, ninth, twelfth
and fourteenth paragraphs of the "Plan of Distribution" in the Offering
Memorandum are correct and 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 Documents.
11. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchasers, the Company,
each of the Guarantors and their respective successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except as provided in Section 10 of this Agreement with respect to affiliates,
officers, directors, employees, representatives, agents and controlling persons
of the Company, each of the Guarantors and the Initial Purchasers and in Section
5(e) of this Agreement with respect to holders and prospective purchasers of the
Notes. Nothing in this Agreement is intended or shall be construed to give any
person, other than the persons referred to in this Section 11, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
29
12. Expenses. The Company and each of the Guarantors agree with the
Initial Purchasers to pay (i) the costs incident to the authorization, issuance,
sale, preparation and delivery of the Notes and any taxes payable in that
connection; (ii) the costs incident to the preparation, printing and
distribution of the Offering Documents and any amendments or supplements
thereto; (iii) the costs of reproducing and distributing each of the Transaction
Documents; (iv) the costs incident to the preparation, printing and delivery of
the certificates evidencing the Notes, including stamp duties and transfer
taxes, if any, payable upon issuance of the Notes; (v) the fees and expenses of
the Company's counsel and independent accountants; (vi) the fees and expenses of
qualifying the Notes under the securities laws of the several jurisdictions as
provided in Section 4(h) and of preparing, printing and distributing Blue Sky
Memoranda (including related fees and expenses of counsel for the Initial
Purchasers); (vii) any fees charged by rating agencies for rating the Notes;
(viii) the fees and expenses of the Trustee and any paying agent (including
related fees and expenses of any counsel to such parties); (ix) all expenses and
application fees incurred in connection with the application for the inclusion
of the Notes on the PORTAL Market and the approval of the Notes for book-entry
transfer by DTC; and (ix) all other costs and expenses incident to the
performance of the obligations of the Company under this Agreement which are not
otherwise specifically provided for in this Section 12; provided, however, that
except as provided in this Section 12 and Section 9, the Initial Purchasers
shall pay their own costs and expenses.
13. Survival. The respective indemnities, representations, warranties
and agreements of the Company, each of the Guarantors and the Initial Purchasers
contained in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Notes and 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.
14. 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
or fax transmission to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: High Yield Capital Markets (Fax: 212-723-
8589) and ▇▇▇▇▇▇ Brothers Inc., Three World Financial Center, New York, New
York 10285, Attention: Syndicate Department (Fax: ▇▇▇-▇▇▇-▇▇▇▇), with a
copy, in the case of any notice pursuant to Section 10(c) of this
agreement, to General Counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (Fax: ▇▇▇-▇▇▇-▇▇▇▇) and the Director of
Litigation, Office of the General Counsel, ▇▇▇▇▇▇ Brothers Inc., ▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
(b) If to the Company or any Guarantor, shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set
forth in the Offering Memorandum, Attention: Executive Vice President-Chief
Financial Officer (Fax: (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to Cadwalader,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
30
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Fax: (▇▇▇) ▇▇▇-▇▇▇▇); and to Tritel, Inc., ▇▇▇
▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: General Counsel (Fax:
(▇▇▇) ▇▇▇-▇▇▇▇.
provided, however, that any notice to an Initial Purchaser pursuant to Section
10(c) of this Agreement shall be delivered or sent by mail or fax transmission
to such Initial Purchaser at its address set forth on the signature page hereof.
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the Initial
Purchasers by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and ▇▇▇▇▇▇ Brothers Inc.
15. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF NEW YORK.
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. 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.
If the foregoing correctly sets forth the agreement among the Company,
each of the Guarantors and the Initial Purchasers, please indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
TRITEL PCS, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President-
Chief Financial Officer and
Treasurer
TRITEL, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President-
Chief Financial Officer and
Treasurer
TRITEL COMMUNICATIONS, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President-
Chief Financial Officer and
Treasurer
TRITEL FINANCE, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President-
Chief Financial Officer and
Treasurer
Accepted:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.,
By /s/ M. ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇. ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
Address for notices pursuant to Section 11(c):
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ BROTHERS INC.,
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
Address for notices pursuant to Section 11(c):
Three World Financial Center
New York, New York 10285
SCHEDULE I
Principal Amount Of
---------------------
Name Of Initial Purchaser Notes To Be Purchased
------------------------- ---------------------
EXHIBIT A
Exchange and Registration Rights Agreement
TRITEL PCS, INC
$450,000,000
10 3/8 % Senior Subordinated Notes due 2011
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
January , 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Banc of America Securities LLC
TD Securities (USA) Inc.
c/▇ ▇▇▇▇▇▇ Brothers
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
Tritel PCS, Inc., a Delaware corporation (the "Company"), proposes to
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issue and sell to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Banc of America Securities LLC and
TD Securities (together, the "Initial Purchasers"), upon the terms and subject
------------------
to the conditions set forth in a purchase agreement dated January 19, 2001 (the
"Purchase Agreement"), $450,000,000 aggregate principal amount at maturity of
------------------
its 10 3/8 % senior subordinated notes due 2011 (the "Notes") to be guaranteed
-----
on a senior subordinated basis by Tritel, Inc., the parent of the Company,
Tritel Communications, Inc., Tritel Finance Inc., two subsidiaries of the
Company, and, in the future, by certain other subsidiaries of the Company that
incur indebtedness (together, the "Guarantors"). Capitalized terms used but not
----------
defined herein shall have the meanings given to such terms in the Purchase
Agreement.
As an inducement to the Initial Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the Initial
Purchasers thereunder, the Company and
2
each of the Guarantors agree with the Initial Purchasers, for the benefit of
the holders (including the Initial Purchasers) of the Notes, the Exchange Notes
(as defined herein) and the Private Exchange Notes (as defined herein)
(collectively, the "Holders"), as follows:
-------
1. Registered Exchange Offer. The Company and each of the Guarantors
shall (i) prepare and, not later than 90 days following the date of original
issuance of the Notes (the "Issue Date"), file with the Securities and Exchange
----------
Commission (the "Commission") a registration statement (the "Exchange Offer
---------- --------------
Registration Statement") on an appropriate form under the Securities Act of
----------------------
1933, as amended (the "Securities Act"), with respect to a proposed offer to the
--------------
Holders of the Notes (the "Registered Exchange Offer") who are not prohibited by
-------------------------
applicable law or interpretations thereof by the Commission's staff from
participating in the Registered Exchange Offer to issue and deliver to such
Holders, in exchange for the Notes, a like aggregate principal amount of debt
securities of the Company (the "Exchange Notes") that are identical in all
--------------
material respects to the Notes, except for the transfer restrictions and
registration rights relating to the Notes, (ii) use their commercially
reasonable efforts to cause the Exchange Offer Registration Statement to become
effective under the Securities Act no later than 210 days after the Issue Date
and the Registered Exchange Offer to be consummated no later than 240 days after
the Issue Date and (iii) keep the Exchange Offer Registration Statement
effective for not less than 30 days (or longer, if required by applicable law)
after the date on which notice of the Registered Exchange Offer is mailed to the
Holders (such period being called the "Exchange Offer Registration Period"). The
----------------------------------
Exchange Notes will be issued under the Indenture or an indenture (the "Exchange
--------
Notes Indenture") among the Company, each of the Guarantors and the Trustee or
---------------
such other bank or trust company that is reasonably satisfactory to the Initial
Purchasers, as trustee (the "Exchange Notes Trustee"), such indenture to be
----------------------
identical in all material respects to the Indenture, except for the transfer
restrictions and registration rights relating to the Notes (as described above).
All references in this Agreement to "Registration Statement" and "prospectus"
shall, except where the context otherwise requires, include any Registration
Statement (or amendment or supplement thereto) and prospectus (or amendment
thereto), respectively, filed with the Commission pursuant to Section 6 of this
Agreement.
Upon the effectiveness of the Exchange Offer Registration Statement,
the Company shall promptly commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder electing to
exchange Notes for Exchange Notes (assuming that such Holder (a) is not an
affiliate of the Company or an Exchanging Dealer (as defined herein) not
complying with the requirements of the next sentence, (b) is not an Initial
Purchaser holding Notes that have, or that are reasonably likely to have, the
status of an unsold allotment in an initial distribution, (c) acquires the
Exchange Notes in the ordinary course of such Holder's business, (d) has no
arrangements or understandings with any person to participate in the
distribution of the Exchange Notes and (e) is not otherwise prohibited by
applicable law or interpretations thereof by the Commission's staff from
participating in the Registered Exchange Offer) and to trade such Exchange Notes
from and after their receipt without any limitations or restrictions under the
Securities Act and without material restrictions under the securities laws of
the several states of the United States. The Company, each of the Guarantors,
the Initial Purchasers and each Exchanging
3
Dealer acknowledge that, pursuant to current interpretations by the Commission's
staff of Section 5 of the Securities Act, (i) each Holder that is a broker-
dealer electing to exchange Notes, acquired for its own account as a result of
market-making activities or other trading activities, for Exchange
Notes (an "Exchanging Dealer"), is required to deliver a prospectus containing
-----------------
substantially the information set forth in Annex A hereto on the cover, in Annex
B hereto in the "Exchange Offer Procedures" section and the "Purpose of the
Exchange Offer" section and in Annex C hereto in the "Plan of Distribution"
section of such prospectus in connection with a sale of any such Exchange Notes
received by such Exchanging Dealer pursuant to the Registered Exchange Offer and
(ii) if an Initial Purchaser elects to sell Exchange Notes acquired in exchange
for Notes constituting any portion of an unsold allotment, such Initial
Purchaser is required to deliver a prospectus containing the information
required by Item 507 and 508 of Regulation S-K under the Securities Act, as
applicable, in connection with such sale.
If, prior to the consummation of the Registered Exchange Offer, any
Holder holds any Notes acquired by it that have, or that are reasonably likely
to be determined to have, the status of an unsold allotment in an initial
distribution, or any Holder is not entitled to participate in the Registered
Exchange Offer, the Company shall, upon the request of any such Holder,
simultaneously with the delivery of the Exchange Notes in the Registered
Exchange Offer, issue and deliver to any such Holder, in exchange for the Notes
held by such Holder (the "Private Exchange"), a like aggregate principal amount
----------------
of debt securities of the Company (the "Private Exchange Notes") that are
----------------------
identical in all material respects to the Exchange Notes, except for the
transfer restrictions relating to such Private Exchange Notes. The Private
Exchange Notes will be issued under the same indenture as the Exchange Notes,
and the Company shall use commercially reasonable efforts to cause the Private
Exchange Notes to bear the same CUSIP number as the Exchange Notes.
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days
(or longer, if required by applicable law) after the date on which notice
of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary (which may be the Trustee or
an affiliate of the Trustee) for the Registered Exchange Offer with an
address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Notes at any time prior to the
close of business, New York City time, on the last business day on which
the Registered Exchange Offer shall remain open; and
4
(e) otherwise comply in all respects with all laws that are applicable
to the Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange
Offer and any Private Exchange, as the case may be, the Company shall:
(a) accept for exchange all Notes validly tendered and not withdrawn
pursuant to the Registered Exchange Offer and the Private Exchange;
(b) deliver to the Trustee for cancelation all Notes so accepted for
exchange; and
(c) cause the Trustee or the Exchange Notes Trustee, as the case may
be, promptly to authenticate and deliver to each Holder, Exchange Notes or
Private Exchange Notes, as the case may be, equal in principal amount to
the Notes of such Holder so accepted for exchange.
The Company shall use its commercially reasonable efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
prospectus contained therein in order to permit such prospectus to be used by
all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Exchange Notes; provided that (i) in the case where such
--------
prospectus and any amendment or supplement thereto must be delivered by an
Exchanging Dealer, such period shall be the lesser of 180 days and the date on
which all Exchanging Dealers have sold all Exchange Notes held by them and (ii)
the Company shall make such prospectus and any amendment or supplement thereto
available to any broker-dealer for use in connection with any resale of any
Exchange Notes for a period of not less than 180 days after the consummation of
the Registered Exchange Offer.
The Indenture or the Exchange Notes Indenture, as the case may be,
shall provide that the Notes, the Exchange Notes and the Private Exchange Notes
shall vote and consent together on all matters as one class and that none of the
Notes, the Exchange Notes or the Private Exchange Notes will have the right to
vote or consent as a separate class on any matter.
Interest on each Exchange Note and Private Exchange Note issued
pursuant to the Registered Exchange Offer and in the Private Exchange will
accrue from the last interest payment date on which interest was paid on the
Notes surrendered in exchange therefor or, if no interest has been paid on the
Notes, from the Issue Date.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Notes received by such Holder will be
acquired in the ordinary course of business, (ii) such Holder will have no
arrangements or understanding with any person to participate in the distribution
of the Notes or the Exchange Notes within the meaning of the Securities Act,
(iii) such
5
Holder is not an affiliate of the Company or, if it is such an affiliate, such
Holder will comply with the registration and prospectus delivery requirements of
the Securities Act to the extent applicable, (iv) if such Holder is not a
broker-dealer, that it is not engaged in, and does not intend to engage in, the
distribution of the Exchange Notes and (v) if such Holder is a broker-dealer,
that it will receive Exchange Notes for its own account in exchange for Notes
that were acquired as a result of market-making activities or other trading
activities and that it will deliver a prospectus in connection with any resale
of such Exchange Notes.
Notwithstanding any other provisions hereof, the Company and each of
the Guarantors will ensure that (i) any Exchange Offer Registration Statement
and any amendment thereto and any prospectus forming part thereof and any
supplement thereto complies in all material respects with the Securities Act and
the rules and regulations of the Commission thereunder, (ii) any Exchange Offer
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any prospectus forming part of any Exchange
Offer Registration Statement, and any supplement to such prospectus, does not,
as of the consummation of the Registered Exchange Offer, include an untrue
statement of a material fact or omit 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.
2. Shelf Registration. If (i) because of any change in applicable law
or interpretations thereof by the Commission's staff the Company is not
permitted to effect the Registered Exchange Offer as contemplated by Section 1
hereof or (ii) any Notes validly tendered pursuant to the Registered Exchange
Offer are not exchanged for Exchange Notes within 240 days after the Issue Date
or (iii) any Initial Purchaser so requests with respect to Notes or Private
Exchange Notes not eligible to be exchanged for Exchange Notes in the Registered
Exchange Offer and held by it following the consummation of the Registered
Exchange Offer or (iv) any applicable law or interpretations thereof by the
Commission's staff do not permit any Holder to participate in the Registered
Exchange Offer or (v) any Holder that participates in the Registered Exchange
Offer does not receive freely transferable Exchange Notes in exchange for
tendered Notes or (vi) the Company so elects, then the following provisions
shall apply:
(a) The Company and each of the Guarantors shall use their
commercially reasonable efforts to file as promptly as practicable (but in
no event more than 45 days after so required or requested pursuant to this
Section 2) with the Commission, and thereafter shall use their commercially
reasonable efforts to cause to be declared effective, a shelf registration
statement on an appropriate form under the Securities Act relating to the
offer and sale of the Transfer Restricted Securities (as defined in Section
3 of this Agreement) by the Holders thereof from time to time in accordance
with the methods of distribution set forth in such registration statement
(hereafter, a "Shelf Registration Statement" and, together with any
----------------------------
Exchange Offer Registration Statement, a "Registration Statement");
----------------------
provided that no Holder (other than an Initial Purchaser) shall be entitled
--------
to have the Notes held by it covered by such
6
Shelf Registration Statement unless such ▇▇▇▇▇▇ agrees in writing to be bound by
all the provisions of this Agreement applicable to such Holder.
(b) The Company and each of the Guarantors shall use their commercially
reasonable efforts to keep the Shelf Registration Statement continuously
effective in order to permit the prospectus forming part thereof to be used by
Holders of Transfer Restricted Securities for a period ending on the earlier of
(i) two years from the Issue Date or such shorter period that will terminate
when all the Transfer Restricted Securities covered by the Shelf Registration
Statement have been sold pursuant thereto and (ii) the date on which the Notes
become eligible for resale without volume restrictions pursuant to Rule 144
under the Securities Act (in any such case, such period being called the "Shelf
-----
Registration Period"). The Company and each of the Guarantors shall be deemed
-------------------
not to have used their commercially reasonable efforts to keep the Shelf
Registration Statement effective during the requisite period if any of them
voluntarily take any action that would result in Holders of Transfer Restricted
Securities covered thereby not being able to offer and sell such Transfer
Restricted Securities during that period, unless (i) such action is required by
applicable law or (ii) such action is taken by the Company and each of the
Guarantors in good faith and for valid business reasons (not including avoidance
of their obligations hereunder), provided that the Company and each of the
Guarantors within 90 days thereafter comply with the requirements of Section
4(k) hereof. Any such period during which the Company and each of the Guarantors
fail to keep the Shelf Registration Statement effective and usable for offers
and sales of Notes, Private Exchange Notes and Exchange Notes is referred to as
a "Suspension Period". A Suspension Period shall commence on and include the
-----------------
date the Company and each of the Guarantors give notice that the Shelf
Registration Statement is no longer effective or the prospectus included therein
is no longer usable for offers and sales of Notes, Private Exchange Notes and
Exchange Notes and shall end on the date when each Holder of Notes, Private
Exchange Notes and Exchange Notes covered by such Shelf Registration Statement
either receives the copies of the supplemented or amended prospectus
contemplated by Section 4(k) hereof or is advised in writing by the Company and
the each of the Guarantors that use of the prospectus may be resumed. Not more
than one Suspension Period shall be permitted in any period of 360 consecutive
days. If one or more Suspension Periods occur, the two-year time period
referenced above shall be extended by the number of days included in each such
Suspension Period.
(c) Notwithstanding any other provisions hereof, the Company and each of
the Guarantors will ensure that (i) any Shelf Registration Statement and any
amendment thereto and any prospectus forming part thereof and any supplement
thereto complies in all material respects with the Securities Act and the rules
and regulations of the Commission thereunder, (ii) any Shelf Registration
Statement and any amendment thereto (in either case, other than with respect to
information included therein in reliance upon or in conformity with written
information furnished to the Company by or on behalf of any Holder specifically
for use therein (the "Holders' Information")) does not contain an untrue
--------------------
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the
7
statements therein not misleading and (iii) any prospectus forming part of
any Shelf Registration Statement, and any supplement to such prospectus (in
either case, other than with respect to Holders' Information), does not
include an untrue statement of a material fact or omit 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.
3. Liquidated Damages. (a) The parties hereto agree that the Holders
of Transfer Restricted Securities will suffer damages if the Company and each of
the Guarantors fails to fulfill their obligations under Section 1 or Section 2,
as applicable, and that it would not be feasible to ascertain the extent of such
damages. Accordingly, if (i) the applicable Registration Statement is not filed
with the Commission on or prior to 90 days after the Issue Date, (ii) the
Exchange Offer Registration Statement or the Shelf Registration Statement, as
the case may be, is not declared effective within 210 days after the Issue Date
(or in the case of a Shelf Registration Statement required to be filed in
response to a change in applicable law or interpretations thereof by the
Commission's staff, if later, within 45 days after publication of the change in
law or interpretation), (iii) the Registered Exchange Offer is not consummated
on or prior to 240 days after the Issue Date, or (iv) the Shelf Registration
Statement is filed and declared effective within 210 days after the Issue Date
(or in the case of a Shelf Registration Statement required to be filed in
response to a change in applicable law or interpretations thereof by the
Commission's staff, if later, within 45 days after publication of the change in
law or interpretation) but shall thereafter cease to be effective (at any time
that the Company is obligated to maintain the effectiveness thereof) without
being succeeded within 45 days by an additional Registration Statement filed and
declared effective (each such event referred to in clauses (i) through (iv), a
"Registration Default"), the Company and each of the Guarantors will be jointly
--------------------
and severally obligated to pay liquidated damages to each Holder of Transfer
Restricted Securities, during the period of one or more such Registration
Defaults, in an amount equal to $ 0.192 per week per $1,000 of principal amount
of Transfer Restricted Securities held by such Holder until (i) the applicable
Registration Statement is filed, (ii) the Exchange Offer Registration Statement
is declared effective and the Registered Exchange Offer is consummated, (iii)
the Shelf Registration Statement is declared effective or (iv) the Shelf
Registration Statement again becomes effective, as the case may be. Following
the cure of all Registration Defaults, the accrual of liquidated damages will
cease. As used herein, the term "Transfer Restricted Securities" means (i) each
------------------------------
Note until the date on which such Note has been exchanged for a freely
transferable Exchange Note in the Registered Exchange Offer, (ii) each Note or
Private Exchange Note until the date on which it has been effectively registered
under the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (iii) each Note or Private Exchange Note until the
date on which it is distributed to the public pursuant to Rule 144 under the
Securities Act or is saleable pursuant to Rule 144(k) under the Securities Act.
Notwithstanding anything to the contrary in this Section 3(a), the Company and
each of the Guarantors shall not be required to pay liquidated damages to a
Holder of Transfer Restricted Securities if such Holder failed to comply with
its obligations to make the representations set forth in the second to last
paragraph of Section 1 or failed to provide the information required to be
provided by it, if any, pursuant to Section 4(o).
8
(b) The Company shall notify the Trustee and the Paying Agent (as
defined in the Indenture) under the Indenture within three business days of the
happening of each and every Registration Default. The Company and each of the
Guarantors shall pay the liquidated damages due on the Transfer Restricted
Securities by depositing with the Paying Agent (which may not be the Company for
these purposes), in trust, for the benefit of the Holders thereof, prior to
10:00 a.m., New York City time, on the next interest payment date specified by
the Indenture and the Notes, sums sufficient to pay the liquidated damages then
due. The liquidated damages due shall be payable on each interest payment date
specified by the Indenture and the Notes to the record holder entitled to
receive the interest payment to be made on such date. Each obligation to pay
liquidated damages shall be deemed to accrue from and including the date of the
applicable Registration Default.
(c) The parties hereto agree that the liquidated damages provided for
in this Section 3 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by Holders of Transfer
Restricted Securities by reason of the failure of (i) the Shelf Registration
Statement or the Exchange Offer Registration Statement to be filed, (ii) the
Shelf Registration Statement to remain effective or (iii) the Exchange Offer
Registration Statement to be declared effective and the Registered Exchange
Offer to be consummated, in each case to the extent required by this Agreement.
4. Registration Procedures. In connection with any Registration
Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior to
the filing thereof with the Commission, a copy of the Registration
Statement and each amendment thereof and each supplement, if any, to the
prospectus included therein and shall, in its reasonable judgment, reflect
in each such document, when so filed with the Commission, such comments as
any Initial Purchaser may reasonably propose; (ii) include information
substantially to the effect set forth in Annex A hereto on the cover, in
Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose
of the Exchange Offer" section and in Annex C hereto in the "Plan of
Distribution" section of the prospectus forming a part of the Exchange
Offer Registration Statement, and include information substantially to the
effect set forth in Annex D hereto in the Letter of Transmittal delivered
pursuant to the Registered Exchange Offer; and (iii) if requested by any
Initial Purchaser, include the information required by Item 507 or 508 of
Regulation S-K, as applicable, in the prospectus forming a part of the
Exchange Offer Registration Statement.
(b) The Company shall advise each Initial Purchaser, each Exchanging
Dealer and the Holders (if applicable) and, if requested by any such
person, confirm such advice in writing (which advice pursuant to clause
(ii) through (v) hereof shall be accompanied by an instruction to suspend
the use of the prospectus until the requisite changes have been made):
9
(i) when any Registration Statement and any amendment thereto has been
filed with the Commission and when such Registration Statement or any post-
effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements to
any Registration Statement or the prospectus included therein or for
additional information;
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of any Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Notes, the Exchange Notes or the
Private Exchange Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the making of any
changes so that the Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or any prospectus
forming part of any Registration Statement, and any supplement to such
prospectus, does not include an untrue statement of a material fact or omit
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.
(c) If any event contemplated by clauses (ii) through (v) of Section 4(b)
of this Agreement occurs during the period for which the Company and each of the
Guarantors are required to maintain an effective Registration Statement, the
Company and each of the Guarantors will as promptly as is practicable prepare
and file with the Commission a post-effective amendment to the Registration
Statement or a supplement to the related prospectus or file any other required
document so that, as thereafter delivered to purchasers of the Notes, Exchange
Notes or Private Exchange Notes from a Holder, the prospectus will not include
an untrue statement of a material fact or omit 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.
(d) The Company and each of the Guarantors will use all commercially
reasonable efforts to obtain the withdrawal at the earliest possible time of any
order suspending the effectiveness of any Registration Statement.
(e) The Company will furnish to each Holder of Transfer Restricted
Securities included within the coverage of any Shelf Registration Statement,
without charge, one
10
conformed copy of such Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules and, if any such
Holder so requests in writing, all exhibits thereto (including those, if any,
incorporated by reference) and as many conformed copies of such Registration
Statement as such Holder reasonably requests.
(f) The Company will, during the Shelf Registration Period, promptly
deliver to each Holder of Transfer Restricted Securities included within the
coverage of any Shelf Registration Statement, without charge, as many copies of
the prospectus (including each preliminary prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request; and the Company and each of the Guarantors consent to
the use of such prospectus or any amendment or supplement thereto by each of the
selling Holders of Transfer Restricted Securities in connection with the lawful
offer and sale of the Transfer Restricted Securities covered by such prospectus
or any amendment or supplement thereto.
(g) The Company will furnish to each Initial Purchaser and each Exchanging
Dealer, and to any other Holder who so requests, without charge, one conformed
copy of the Exchange Offer Registration Statement and any post-effective
amendment thereto, including financial statements and schedules and, if any
Initial Purchaser or Exchanging Dealer or any such Holder so requests in
writing, all exhibits thereto (including those, if any, incorporated by
reference) and as many conformed copies of such Exchange Offer Registration
Statement as such Holder reasonably requests.
(h) The Company will, during the Exchange Offer Registration Period or the
Shelf Registration Period, as applicable, promptly deliver to each Initial
Purchaser, each Exchanging Dealer and such other persons that are required to
deliver a prospectus following the Registered Exchange Offer, without charge, as
many copies of the final prospectus included in the Exchange Offer Registration
Statement or the Shelf Registration Statement and any amendment or supplement
thereto as such Initial Purchaser, Exchanging Dealer or other persons may
reasonably request; and the Company and each of the Guarantors consent to the
use of such prospectus or any amendment or supplement thereto by any such
Initial Purchaser, Exchanging Dealer or other persons, as applicable, in
connection with any lawful offer or sale covered by such prospectus or any
amendment or supplement thereto, as aforesaid.
(i) Prior to the effective date of any Registration Statement, the Company
and each of the Guarantors will use commercially reasonable efforts to register
or qualify, or cooperate with the Holders of Notes, Exchange Notes or Private
Exchange Notes included therein and their respective counsel in connection with
the registration or qualification of, such Notes, Exchange Notes or Private
Exchange Notes for offer and sale under the securities or blue sky laws of such
jurisdictions as any such Holder reasonably requests in writing and do any and
all other acts or things necessary or advisable to enable the offer and sale in
such jurisdictions of the Notes, Exchange Notes or Private Exchange Notes
covered by such Registration
11
Statement; provided that the Company and each of the Guarantors will not be
--------
required to qualify generally to do business in any jurisdiction where they are
not then so qualified or to take any action which would subject them to general
service of process or to taxation in any such jurisdiction where they are not
then so subject.
(j) The Company and each of the Guarantors will reasonably cooperate with
the Holders of Notes, Exchange Notes or Private Exchange Notes to facilitate the
timely preparation and delivery of certificates representing Notes, Exchange
Notes or Private Exchange Notes to be sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as the Holders thereof may request in writing prior to
sales of Notes, Exchange Notes or Private Exchange Notes pursuant to such
Registration Statement.
(k) If any event contemplated by Section 4(b)(ii) through (v) occurs during
the period for which the Company and each of the Guarantors are required to
maintain an effective Registration Statement, the Company and each of the
Guarantors will as promptly as is practicable prepare and file with the
Commission a post-effective amendment to the Registration Statement or a
supplement to the related prospectus or file any other required document so
that, as thereafter delivered to purchasers of the Notes, Exchange Notes or
Private Exchange Notes from a Holder, the prospectus will not include an untrue
statement of a material fact or omit 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.
(l) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for each of the Notes, the
Exchange Notes and the Private Exchange Notes, as the case may be, and provide
the applicable trustee with printed certificates for the Notes, the Exchange
Notes or the Private Exchange Notes, as the case may be, in a form eligible for
deposit with The Depository Trust Company.
(m) The Company and each of the Guarantors will comply with all applicable
rules and regulations of the Commission and the Company will make generally
available to its security holders as soon as practicable after the effective
date of the applicable Registration Statement an earning statement satisfying
the provisions of Section 11(a) of the Securities Act; provided that in no event
--------
shall such earning statement be delivered later than 45 days after the end of a
12-month period (or 90 days, if such period is a fiscal year) beginning with the
first month of the Company's first fiscal quarter commencing after the effective
date of the applicable Registration Statement, which statement shall cover such
12-month period.
(n) The Company and each of the Guarantors will cause the Indenture or the
Exchange Notes Indenture, as the case may be, to be qualified under the Trust
Indenture Act as required by applicable law in a timely manner.
12
(o) The Company may require each Holder of Transfer Restricted
Securities to be registered pursuant to any Shelf Registration Statement to
furnish to the Company such information concerning the Holder and the
distribution of such Transfer Restricted Securities as the Company may from
time to time reasonably require for inclusion in such Shelf Registration
Statement, and the Company may exclude from such registration the Transfer
Restricted Securities of any Holder that fails to furnish such information
within a reasonable time after receiving such request.
(p) In the case of a Shelf Registration Statement, each Holder of
Transfer Restricted Securities to be registered pursuant thereto agrees by
acquisition of such Transfer Restricted Securities that, upon receipt of
any notice from the Company pursuant to Section 4(b)(ii) through (v), such
Holder will discontinue disposition of such Transfer Restricted Securities
until such Holder's receipt of copies of the supplemental or amended
prospectus contemplated by Section 4(k) or until advised in writing (the
"Advice") by the Company that the use of the applicable prospectus may be
------
resumed. If the Company shall give any notice under Section 4(b)(ii)
through (v) during the period that the Company is required to maintain an
effective Registration Statement (the "Effectiveness Period"), such
--------------------
Effectiveness Period shall be extended by the number of days during such
period from and including the date of the giving of such notice to and
including the date when each seller of Transfer Restricted Securities
covered by such Registration Statement shall have received (x) the copies
of the supplemental or amended prospectus contemplated by Section 4(k) (if
an amended or supplemental prospectus is required) or (y) the Advice (if no
amended or supplemental prospectus is required).
(q) In the case of a Shelf Registration Statement, the Company and
each of the Guarantors shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form and
reasonably acceptable to the Company) and take all such other action, if
any, as Holders of a majority in aggregate principal amount of the Notes,
Exchange Notes and Private Exchange Notes being sold or the managing
underwriters (if any) shall reasonably request in order to facilitate any
disposition of Notes, Exchange Notes or Private Exchange Notes pursuant to
such Shelf Registration Statement.
(r) In the case of a Shelf Registration Statement, the Company shall
(i) make reasonably available for inspection by a representative of, and
Special Counsel (as defined below) acting for, Holders of a majority in
aggregate principal amount of the Notes, Exchange Notes and Private
Exchange Notes being sold and any underwriter participating in any
disposition of Notes, Exchange Notes or Private Exchange Notes pursuant to
such Shelf Registration Statement, all relevant financial and other
records, pertinent corporate documents and properties of the Company and
its subsidiaries and (ii) use its commercially reasonable efforts to have
its officers, directors, employees, accountants and counsel supply all
relevant information reasonably requested by such representative, Special
Counsel or any such underwriter (an "Inspector") in connection with such
---------
Shelf Registration Statement.
13
(s) In the case of a Shelf Registration Statement, the Company shall,
if requested by Holders of a majority in aggregate principal amount of the
Notes, Exchange Notes and Private Exchange Notes being sold, their Special
Counsel or the managing underwriters (if any) in connection with such Shelf
Registration Statement, use its commercially reasonable efforts to cause
(i) its counsel to deliver an opinion relating to the Shelf Registration
Statement and the Notes, Exchange Notes or Private Exchange Notes, as
applicable, substantially in the form delivered by counsel for the Company
in connection with the issuance and sale of the Notes, (ii) its officers to
execute and deliver all customary documents and certificates requested by
Holders of a majority in aggregate principal amount of the Notes, Exchange
Notes and Private Exchange Notes being sold, their Special Counsel or the
managing underwriters (if any) and (iii) its independent public accountants
to provide a comfort letter or letters in customary form, subject to
receipt of appropriate documentation as contemplated, and only if
permitted, by Statement of Auditing Standards No. 72.
5. Registration Expenses. The Company and each of the Guarantors will
jointly and severally bear all expenses incurred in connection with the
performance of their obligations under Sections 1, 2, 3 and 4 and the Company
will reimburse the Initial Purchasers and the Holders for the reasonable fees
and disbursements of Cravath, Swaine & ▇▇▇▇▇ (in addition to any local counsel)
unless otherwise instructed by the Holders of a majority in aggregate principal
amount of the Notes, the Exchange Notes and the Private Exchange Notes to be
sold pursuant to each Registration Statement (the "Special Counsel") acting for
---------------
the Initial Purchasers or Holders in connection therewith.
6. [Intentionally omitted]
7. Indemnification. (a) In the event of a Shelf Registration
Statement or in connection with any prospectus delivery pursuant to an Exchange
Offer Registration Statement by an Initial Purchaser or Exchanging Dealer, as
applicable, the Company and each of the Guarantors shall jointly and severally
indemnify and hold harmless each Holder (including, without limitation, any such
Initial Purchaser or Exchanging Dealer, its affiliates, their respective
officers, directors, employees, representatives and agents, and each person, if
any, who controls such Holder within the meaning of the Securities Act or the
Exchange Act (collectively referred to for purposes of this Section 7 and
Section 8 as a Holder) from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, without
limitation, any loss, claim, damage, liability or action relating to purchases
and sales of Notes, Exchange Notes or Private Exchange Notes), to which that
Holder may become subject, whether commenced or threatened, under the Securities
Act, the Exchange Act, any other federal or state statutory law or regulation,
at common law 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 in any such Registration Statement
or any prospectus forming part thereof or in any amendment or supplement
thereto, or (ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and shall reimburse each Holder promptly upon demand for
14
any legal or other expenses reasonably incurred by that Holder in connection
with investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the Company and
-------- -------
each of the Guarantors 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, an untrue statement or alleged untrue statement in, or omission or alleged
omission from, any of such documents in reliance upon and in conformity with any
Holders' Information; and provided, further that with respect to any such untrue
-------- -------
statement in or omission from any related preliminary prospectus, the indemnity
agreement contained in this Section 7(a) shall not inure to the benefit of any
Holder from whom the person asserting any such loss, claim, damage, liability or
action received Notes, Exchange Notes or Private Exchange Notes to the extent
that such loss, claim, damage, liability or action of or with respect to such
Holder results from the fact that both (1) a copy of the final prospectus was
not sent or given to such person at or prior to the written confirmation of the
sale of such Notes, Exchange Notes or Private Exchange Notes to such person and
(2) the untrue statement in or omission from the related preliminary prospectus
was corrected in the final prospectus unless, in either case, such failure to
deliver the final prospectus was a result of non-compliance by the Company with
Sections 4(e), 4(f), 4(g) or 4(h), as applicable.
(b) In the event of a Shelf Registration Statement, each Holder shall
indemnify and hold harmless the Company, its affiliates, their respective
officers, directors, employees, representatives and agents, and each person, if
any, who controls the Company within the meaning of the Securities Act or the
Exchange Act (collectively referred to for purposes of this Section 7(b) and
Section 8 as the Company), from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company may become subject, whether commenced or threatened, under the
Securities Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law 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 in any such Registration
Statement or any prospectus forming part thereof or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, 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 any Holders' Information furnished to
the Company by such Holder, and shall reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that no such Holder
-------- -------
shall be liable for any indemnity claims hereunder in excess of the amount of
net proceeds received by such Holder from the sale of Notes, Exchange Notes or
Private Exchange Notes pursuant to such Shelf Registration Statement or
prospectus.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect
15
thereof is to be made against the indemnifying party pursuant to Section 7(a) or
7(b), 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 7 except to the extent that it has been prejudiced (through the
forfeiture of substantive rights or defenses) 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 7. 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 7 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than the
reasonable costs of investigation; provided, however, that an indemnified party
-------- -------
shall have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel for the indemnified party will be at
the expense of such indemnified party unless (i) the employment of counsel by
the indemnified party has been authorized in writing by the indemnifying party,
(ii) the indemnified party has reasonably concluded (based upon advice of
counsel to the indemnified party) that there may be legal defenses available to
it or other indemnified parties that are different from or in addition to those
available to the indemnifying party, (iii) a conflict or potential conflict
exists (based upon advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the indemnifying
party will not have the right to direct the defense of such action on behalf of
the indemnified party) or (iv) the indemnifying party has not in fact employed
counsel reasonably satisfactory to the indemnified party to assume the defense
of such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm of attorneys (in addition to any
local counsel) at any one time for all such indemnified party or parties. Each
indemnified party, as a condition of the indemnity agreements contained in
Sections 7(a) and 7(b) of this Agreement, shall use all commercially reasonable
efforts to cooperate with the indemnifying party in the defense of any such
action or claim. No indemnifying party shall 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 its written consent or if there be a
final judgment for 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. No indemnifying
party shall, without the prior written consent of the indemnified party (which
consent shall not be unreasonably withheld), effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an
16
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
8. Contribution. If the indemnification provided for in Section 7 of
this Agreement is unavailable or insufficient to hold harmless an indemnified
party under Section 7(a) or 7(b) of this Agreement, 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
and each of the Guarantors from the initial offering and sale of the Notes, on
the one hand, and by a Holder from receiving Notes, Exchange Notes or Private
Exchange Notes, as applicable, registered under the Securities Act, on the
other, 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 and each of the Guarantors, on the one hand, and such Holder, on the
other, with respect to the statements or omissions that resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to the Company and each of the Guarantors or information supplied by the
Company and each of the Guarantors, on the one hand, or to any Holders'
Information supplied by such Holder, on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The parties hereto agree that it
would not be just and equitable if contributions pursuant to this Section 8 were
to be determined by pro rata allocation or by any other method of allocation
that 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, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 8, an
indemnifying party that is a Holder of Notes, Exchange Notes or Private Exchange
Notes shall not be required to contribute any amount in excess of the amount by
which the total price at which the Notes, Exchange Notes or Private Exchange
Notes sold by such indemnifying party to any purchaser exceeds the amount of any
damages which such indemnifying party 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.
9. Rules 144 and 144A. The Company shall use its commercially
reasonable efforts to file the reports required to be filed by it under the
Securities Act and the Exchange Act in a timely manner and, if at any time the
Company is not required to file such reports, it will, upon the written request
of any Holder of Transfer Restricted Securities, make publicly available other
information so long as necessary to permit sales of such Holder's securities
pursuant to Rules 144 and 144A. The Company and each of the Guarantors covenant
that they will take such further action as any
17
Holder of Transfer Restricted Securities may reasonably request, all to the
extent required from time to time to enable such Holder to sell Transfer
Restricted Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rules 144 and 144A (including, without
limitation, the requirements of Rule 144A(d)(4)). Upon the written request of
any Holder of Transfer Restricted Securities, the Company and each of the
Guarantors shall deliver to such Holder a written statement as to whether they
have complied with such requirements. Notwithstanding the foregoing, nothing in
this Section 9 shall be deemed to require the Company to register any of its
securities pursuant to the Exchange Act.
10. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by the Holders of
a majority in aggregate principal amount of such Transfer Restricted Securities
included in such offering, subject to the consent of the Company (which shall
not be unreasonably withheld or delayed), and such Holders shall be responsible
for all underwriting commissions and discounts in connection therewith.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
11. Miscellaneous. (a) Amendments and Waivers. No failure or delay
by the Company, each of the Guarantors, any Holder in exercising any right under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or amendment or discontinuance of steps to
enforce any such right preclude any other or further exercise thereof or the
exercise of any other right. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Company has obtained the
written consent of Holders of a majority in aggregate principal amount of the
Notes, the Exchange Notes and the Private Exchange Notes, taken as a single
class. Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Notes, Exchange Notes or Private Exchange Notes are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of a
majority in aggregate principal amount of the Notes, the Exchange Notes and the
Private Exchange Notes being sold by such Holders pursuant to such Registration
Statement.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier or air courier guaranteeing next-day delivery:
18
(i) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this
Section 11(b), which address initially is, with respect to each
Holder, the address of such Holder maintained by the Registrar under
the Indenture, with a copy in like manner to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc., ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, Banc of America Securities LLC and TD Securities (USA)
Inc.;
(ii) if to an Initial Purchaser, initially at its address set
forth in the Purchase Agreement; and
(iii) if to the Company, initially at the address of the Company
set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
(c) Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopier) and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original, and all of which taken together shall
constitute one and the same agreement.
(e) Definition of Terms. For purposes of this Agreement, (i) the term
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading, (ii) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act and (iii) except where otherwise expressly provided,
the term "affiliate" has the meaning set forth in Rule 405 under the Securities
Act.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) Remedies. In the event of a breach by the Company, any Guarantor
or any Holder of any of their obligations under this Agreement, each Holder, the
Company or each Guarantor, as the case may be, in addition to being entitled to
exercise all rights granted by law, including recovery of damages (other than
the recovery of damages for a breach by the Company or any Guarantor of
19
its obligations under Sections 1 or 2 hereof for which liquidated damages have
been paid pursuant to Section 3 hereof), will be entitled to specific
performance of its rights under this Agreement. The Company, each of the
Guarantors and each Holder agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by each such person of
any of the provisions of this Agreement and hereby further agree that, in the
event of any action for specific performance in respect of such breach, each
such person shall waive the defense that a remedy at law would be adequate.
(i) No Inconsistent Agreements. Each of the Company and the Guarantors
represents, warrants and agrees that (i) it has not entered into, and shall not,
on or after the date of this Agreement, enter into any agreement that is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof, (ii) it has not previously
entered into any agreement which remains in effect granting any registration
rights with respect to any of its debt securities to any person and (iii) (with
respect to the Company) without limiting the generality of the foregoing,
without the written consent of the Holders of a majority in aggregate principal
amount of the then outstanding Transfer Restricted Securities, it shall not
grant to any person the right to request the Company to register any debt
securities of the Company under the Securities Act unless the rights so granted
are not in conflict or inconsistent with the provisions of this Agreement.
(j) No Piggyback on Registrations. Neither the Company nor any of its
security holders (other than the Holders of Transfer Restricted Securities in
such capacity) shall have the right to include any securities of the Company in
any Shelf Registration or Registered Exchange Offer other than Transfer
Restricted Securities.
(k) Severability. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their commercially reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
Please confirm that the foregoing correctly sets forth the agreement
among the Company, each of the Guarantors and the Initial Purchasers.
Very truly yours,
TRITEL PCS, INC., by
by ___________________________
Name:
Title:
TRITEL, INC., by
by ___________________________
Name:
Title:
TRITEL COMMUNICATIONS, INC.,
by ___________________________
Name:
Title:
TRITEL FINANCE, INC., by
by ___________________________
Name:
Title:
Accepted:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.,
by ___________________________
Name:
Title:
▇▇▇▇▇▇ BROTHERS INC.,
by ___________________________
Name:
Title:
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the
Registered Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Notes. The Letter of Transmittal
states that by so acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of
Exchange Notes received in exchange for Notes where such Notes were acquired by
such broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, for a period of 180 days after the
expiration of the Exchange Offer, it will make this Prospectus available to any
broker-dealer for use in connection with any such resale. See "Plan of
Distribution".
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Notes,
where such Notes were acquired by such broker-dealer as a result of market-
making activities or other trading activities, must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Notes. See
"Plan of Distribution".
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Notes. This
prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that, for a
period of 180 days after the expiration of the Exchange Offer, it will make this
prospectus, as amended or supplemented, available to any broker-dealer for use
in connection with any such resale. In addition, until [ ], all dealers
effecting transactions in the Exchange Notes may be required to deliver a
prospectus.
The Company will not receive any proceeds from any sale of Exchange Notes
by broker-dealers. Exchange Notes received by broker-dealers for their own
account pursuant to the Registered Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Notes or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or at negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Notes. Any broker-dealer that resells Exchange Notes that were received by it
for its own account pursuant to the Registered Exchange Offer and any broker or
dealer that participates in a distribution of such Exchange Notes may be deemed
to be an "underwriter" within the meaning of the Securities Act and any profit
on any such resale of Exchange Notes and any commission or concessions received
by any such persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that, by acknowledging that it
will deliver and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the expiration of the Exchange Offer the
Company will promptly send additional copies of this prospectus and any
amendment or supplement to this prospectus to any broker-dealer that requests
such documents in the Letter of Transmittal. The Company has agreed to pay all
expenses incident to the Registered Exchange Offer (including the expenses of
one counsel for the Holders of the Notes) other than commissions or concessions
of any broker-dealers and will indemnify the Holders of the Notes (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
ANNEX D
[_] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE
10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Notes that were acquired as a result of
market-making activities or other trading activities, it acknowledges that it
will deliver a prospectus in connection with any resale of such Exchange Notes;
however, by so acknowledging and by delivering a prospectus, the undersigned
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
EXHIBIT B
Tritel PCS, Inc. Subsidiaries*
-----------------------------
----------------------------------------------------------------------------
Subsidiary State of Formation
----------------------------------------------------------------------------
Tritel Communications, Inc. DE
----------------------------------------------------------------------------
Tritel Finance, Inc. DE
----------------------------------------------------------------------------
Tritel C/F Holding Corp. DE
----------------------------------------------------------------------------
Tritel A/B Holding Corp. DE
----------------------------------------------------------------------------
NexCom, Inc. DE
----------------------------------------------------------------------------
ClearCall, Inc. DE
----------------------------------------------------------------------------
Global PCS, Inc. DE
----------------------------------------------------------------------------
ClearWave, Inc. DE
----------------------------------------------------------------------------
DigiNet PCS, Inc. DE
----------------------------------------------------------------------------
Tritel License - Alabama, Inc. DE
----------------------------------------------------------------------------
AirCom PCS, Inc. AL
----------------------------------------------------------------------------
QuinCom, Inc. AL
----------------------------------------------------------------------------
DigiCom, Inc. DE
----------------------------------------------------------------------------
DigiCall, Inc. DE
----------------------------------------------------------------------------
Tritel License -- Florida, Inc. DE
----------------------------------------------------------------------------
Tritel License -- Georgia, Inc. DE
----------------------------------------------------------------------------
_____________________
*The Company is the only subsidiary of Tritel, Inc.
EXHIBIT C
Description of the Company's Capital Stock
The Company has issued an outstanding 1,000 shares of common stock, par
value $0.01, all of which are held by Tritel, Inc.
EXHIBIT D
FCC Licenses
A. AirCom PCS, Inc.
---------------------------------------------------------------------------
Call Sign BTA Name BTA No. Blk MHz
---------------------------------------------------------------------------
KNLF457 Montgomery, AL BTA305 C 15
---------------------------------------------------------------------------
KNLF604 Anniston, AL BTA017 C 15
---------------------------------------------------------------------------
KNLF605 Birmingham, AL BTA044 C 15
---------------------------------------------------------------------------
KNLF606 Decatur, AL BTA108 C 15
---------------------------------------------------------------------------
KNLF607 Gadsden, AL BTA158 C 15
---------------------------------------------------------------------------
KNLF608 Huntsville, AL BTA198 C 15
---------------------------------------------------------------------------
KNLF609 Tuscaloosa, AL BTA450 C 15
---------------------------------------------------------------------------
B. DigiCall, Inc.
---------------------------------------------------------------------------
Call Sign BTA Name BTA No. Blk MHz
---------------------------------------------------------------------------
KNLG908 Biloxi, MS BTA042 F 10
---------------------------------------------------------------------------
KNLG918 Hattiesburg, MS BTA186 F 10
---------------------------------------------------------------------------
KNLG922 Laurel, MS BTA246 E 10
---------------------------------------------------------------------------
KNLG925 McComb-Brookhaven, MS BTA269 F 10
---------------------------------------------------------------------------
C. DigiCom, Inc.
---------------------------------------------------------------------------
Call Sign BTA Name BTA No. Blk MHz
---------------------------------------------------------------------------
KNLG909 Bowling Green-Glasgow, KY BTA052 F 10
---------------------------------------------------------------------------
KNLG923 Louisville, KY BTA263 F 10
---------------------------------------------------------------------------
▇. ▇▇▇▇▇▇▇, Inc.
---------------------------------------------------------------------------
Call Sign BTA Name BTA No. Blk MHz
---------------------------------------------------------------------------
KNLG912 Dothan-Enterprise, AL BTA115 F 10
---------------------------------------------------------------------------
KNLG914 ▇▇▇▇▇▇▇▇, AL BTA146 F 10
---------------------------------------------------------------------------
KNLG927 Mobile, AL BTA302 F 10
---------------------------------------------------------------------------
KNLG928 Montgomery, AL BTA305 F 10
---------------------------------------------------------------------------
KNLG933 Selma, AL BTA415 F 10
---------------------------------------------------------------------------
2
▇. ▇▇▇▇▇▇ License-Alabama, Inc.
---------------------------------------------------------------------------
Call Sign BTA Name BTA No. BLK MHz
---------------------------------------------------------------------------
KNLG288 Birmingham, AL BTA044 D 10
---------------------------------------------------------------------------
KNLG350 Tuscaloosa, AL BTA450 D 10
---------------------------------------------------------------------------
F. ClearCall, Inc.
-------------------------------------------------------------------------
Call Sign MTA Name MTA No. Blk MHz Notes
-------------------------------------------------------------------------
WPOI258 Knoxville MTA044 A 20 1
-------------------------------------------------------------------------
G. ClearWave, Inc.
-------------------------------------------------------------------------
Call Sign MTA Name MTA No. Blk MHz Notes
-------------------------------------------------------------------------
WPOI257 Memphis-▇▇▇▇▇▇▇ MTA028 B 20 2
-------------------------------------------------------------------------
H. DigiNet PCS, Inc.
-------------------------------------------------------------------------
Call Sign MTA Name MTA No. Blk MHz Notes
-------------------------------------------------------------------------
WPOI256 Nashville MTA043 B 20 3
-------------------------------------------------------------------------
I. Global PCS, Inc.
-------------------------------------------------------------------------
Call Sign MTA Name MTA No. Blk MHz Notes
-------------------------------------------------------------------------
WPOI255 Louisville-Lexington- MTA026 A 20 4
Evansville
-------------------------------------------------------------------------
J. NexCom, Inc.
-------------------------------------------------------------------------
Call Sign MTA Name MTA No. Blk MHz Notes
-------------------------------------------------------------------------
WPOI259 Atlanta MTA011 A 20 5
-------------------------------------------------------------------------
Notes:
3
1. Geographic partition of the Knoxville MTA (MTA044) consisting only of the BTA
of Knoxville, TN (BTA232).
2. Geographic partition of the Memphis-▇▇▇▇▇▇▇ MTA (MTA028) consisting only of
the BTAs of Columbus-Starkville, MS (BTA094); Greenville-Greenwood, MS (BTA175);
▇▇▇▇▇▇▇, MS (BTA210); Meridian, MS (BTA292); Natchez, MS (BTA315); Tupelo-
Corinth, MS (BTA449); Vicksburg, MS (BTA455); and, the county of ▇▇▇▇▇▇▇▇▇▇, MS
in the Memphis, MS BTA (BTA290).
3. Geographic partition of the Nashville MTA (MTA043) consisting only of the
BTAs of Clarksville, TN-Hopkinsville, KY (BTA083); Cookeville, TN (BTA096); and
Nashville, TN (BTA314).
4. Geographic partition of the Louisville-Lexington-Evansville MTA (MTA026)
consisting only of the BTAs of Bowling Green-Glasgow, KY (BTA052); Corbin, KY
(BTA098); Lexington, KY (BTA252); Louisville, KY (BTA263); Madisonville, KY
(BTA273); Owensboro, KY (BTA338); and Somerset, KY (BTA423).
4. Geographic partition of the Atlanta MTA (MTA011) consisting only of the BTAs
of Chattanooga, TN (BTA076); Cleveland, TN (BTA085); Dalton, GA (BTA102); La
Grange, GA (BTA237); Opelika-Auburn, AL (BTA334); Rome, GA (BTA384); and, the
counties of ▇▇▇▇▇▇▇, GA and Haralson, GA in the Atlanta, GA (BTA024).
EXHIBIT E
Based upon and subject to the foregoing, Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ is
of the opinion that:
1. Each of the Transaction Documents has been duly authorized, executed
and delivered by the Company and each of the Guarantors.
2. Each of the Exchange and Registration Rights Agreement and the
Indenture constitutes a legal, valid and binding agreement of the
Company and each of the Guarantors, enforceable against the Company
and each of the Guarantors in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, receivership or other laws relating to or
affecting creditors' rights generally, and to general principles of
equity (regardless of whether enforcement is sought in a proceeding at
law or in equity), except that the enforcement of rights with respect
to indemnification and contribution obligations may be limited by
applicable law or considerations of public policy.
3. The Notes have been duly authorized and executed by the Company and,
when the Notes have been duly authenticated and delivered by the
Trustee in the manner contemplated in the Indenture and paid for by
the Initial Purchasers pursuant to the Purchase Agreement, the Notes
will be legal, valid and binding obligations of the Company, as
issuer, and each of the Guarantors, as guarantors, enforceable against
the Company, as issuer, and each of the Guarantors, as guarantors, in
accordance with their terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium,
receivership or other laws relating to creditors' rights generally,
and to general principles of equity (regardless of whether enforcement
is sought in a proceeding at law or in equity), and will be validly
issued and outstanding and entitled to the benefits provided by the
Indenture.
4. The Indenture conforms in all material respects with the requirements
of the Trust Indenture Act and the rules and regulations of the
Securities and Exchange Commission applicable to an indenture which is
qualified thereunder.
5. Assuming (a) the accuracy as to factual matters of the representations
and warranties in the Purchase Agreement and (b) compliance with the
terms and provisions of the Indenture and the Purchase Agreement, in
each case, by the Company, each of the Guarantors and the Initial
Purchasers, as applicable, it is not necessary in connection with the
offer, issuance and sale of the Notes by the Company to the Initial
Purchasers or the offer, resale and delivery by the Initial Purchasers
to the purchasers of the Notes from the Initial Purchasers under the
circumstances contemplated by the Indenture and the Purchase Agreement
to
2
qualify the Indenture under the Trust Indenture Act of 1939, as
amended, or to register the Notes under the Securities Act of 1933, as
amended.
6. Neither Tritel, Inc., the Company nor any of the Company's
subsidiaries is, or immediately after the sale of the Notes and the
application of the proceeds from such same (as described in the
Offering Memorandum under the caption "Use of Proceeds") will be, an
"investment company" or a company "controlled by" an investment
company within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act"), and the rules and regulations
----------------------
of the Securities and Exchange Commission thereunder, without taking
account of any exemption under the Investment Company Act arising out
of the numbers of holders of the Company's securities. Neither Tritel,
Inc., the Company nor any of the Company's subsidiaries is a "holding
company" or a "subsidiary company" of a holding company or its
"affiliate" within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
7. Neither the consummation of the transactions contemplated by the
Purchase Agreement, nor the sale, issuance, execution or delivery of
the Notes, will violate Regulation T, U or X of the Board of Governors
of the Federal Reserve System.
8. The statements in the Offering Memorandum under the headings
"Description of the Notes" and "Exchange and Registration Rights
Agreement", insofar as such statements relate to statements of law or
draw legal conclusions, fairly summarize the information called for
with respect to such legal matters, and insofar as such statements
describe the Notes, the Indenture, the Purchase Agreement and the
Exchange and Registration Rights Agreement, such documents and
instruments conform in all material respects to their description in
the Offering Memorandum, subject to the qualification that such
summaries are inherently incomplete descriptions of complex statutes,
regulations and documents.
9. The statements in the Offering Memorandum under the heading "Certain
U.S. Federal Tax Considerations," insofar as such statements relate to
statements of law or regulations or draw legal conclusions, have been
reviewed by us and fairly summarize the matters described under such
heading.
10. To our knowledge, there is no legal or governmental action,
investigation or proceeding pending or threatened against the Company
or any of the Guarantors (a) asserting the invalidity of the
Transaction Documents or the Notes or (b) seeking to prevent the
issuance of the Notes or the consummation of any of the transactions
provided for in the Transaction Documents, or (c) which would
materially and adversely affect the ability of the Company or any of
the Guarantors to perform its obligations under, or the validity or
enforceability of, the Transaction Documents or the Notes. For
purposes of the opinion set forth in
3
this paragraph, we have not regarded any legal or governmental
actions, investigations or proceedings to be "threatened" unless the
potential litigant or Governmental Authority has communicated in
writing to the Company or any of the Guarantors a present intention to
initiate such actions, investigations or proceedings against the
Company.
11. The issuance and sale by the Company of the Notes to the Initial
Purchasers pursuant to the Purchase Agreement, the compliance by the
Company and each of the Guarantors with the provisions of the
Transaction Documents, and the consummation by the Company and each of
the Guarantors of the transactions therein contemplated (a) do not
require any Governmental Approval to be obtained on the part of the
Company or the Guarantors, as applicable, except those that may be
required under state securities or blue sky laws and such other
approvals that have been obtained and, to our knowledge, are in
effect, (b) do not result in a violation of any provision of the
certificate of incorporation or bylaws of the Company or the
Guarantors or any Applicable Laws applicable to the Company or the
Guarantors, and (c) do not breach or result in a violation of, or
default under, (i) the Indenture relating to the 12 3/4% Senior
Subordinated Discount Notes due 2009, or the TeleCorp PCS
Stockholders' Agreement, or (ii) any judgment, decree or order known
to us which is applicable to the Company and, pursuant to any
Applicable Laws, is issued by any Governmental Authority having
jurisdiction over the Company or the Guarantors or their properties.
As used herein, the terms "Applicable Laws" shall mean those laws, rules and
---------------
regulations of the State of New York and of the United States of America which,
in our experience, are normally applicable to transactions of the type
contemplated by the Transaction Documents. The term "Governmental Authorities"
------------------------
means executive, legislative, judicial, administrative or regulatory bodies of
the State of New York or the United States of America. The term "Governmental
------------
Approval" means any consent, approval, license, authorization or validation of,
--------
or filing, recording or registration with, any Governmental Authority pursuant
to Applicable Laws.
EXHIBIT F
Based upon the foregoing, and subject to the qualifications set forth
herein,
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇, general counsel to the Company, is of the opinion that:
1. The Company has been duly incorporated and is an existing corporation
in good standing under the laws of the State of Delaware, is duly
qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or leasing of
property or conduct of business, as certified by the Company, requires
such qualification, and has all corporate power and authority
necessary to own or hold its properties and to conduct its business in
which it is engaged (except where the failure to so qualify or have
such power or authority would not, singularly or in the aggregate,
have a Material Adverse Effect).
2. Each of the Guarantors has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
is duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or leasing of
property or conduct of business, as certified by each of the
Guarantors, requires such qualification, and has all corporate power
and authority necessary to own or hold its properties and to conduct
its business in which it is engaged (except where the failure to so
qualify or have such power or authority would not, singularly or in
the aggregate, have a Material Adverse Effect).
3. The Company and each of the Guarantors have the corporate power and
authority to execute and deliver each of the Transaction Documents to
which they are a party and to perform their respective obligations
thereunder; and all corporate action required to be taken for the due
and proper authorization, execution and delivery of each of the
Transaction Documents and the consummation of the transactions
contemplated thereby have been duly and validly taken.
4. Each of the Reviewed Agreements described in the Offering Memorandum
conform in all material respects to the description thereof contained
in the Offering Memorandum, and, to my knowledge, do not differ in any
material respect from the descriptions thereof contained in the
Offering Memorandum.
5. The execution, delivery and performance by the Company and each of the
Guarantors of each of the Transaction Documents to which each is a
party, the issuance, authentication, sale and delivery of the Notes
and compliance by the Company and each of the Guarantors with the
terms thereof and the consummation of the transactions contemplated by
the Transaction Documents will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge, or encumbrance upon any property or assets of Tritel, Inc.,
the
2
Company or any of the Company's subsidiaries pursuant to any Reviewed
Agreement, or, to my knowledge, any other material indenture,
mortgage, deed of trust, loan agreement or any other agreement or
instrument to which Tritel, Inc., the Company or any of the Company's
subsidiaries is a party or to which assets of Tritel, Inc., the
Company or any of the Company's subsidiaries is subject.
6. To my knowledge, neither Tritel, Inc., the Company nor any of the
Company's subsidiaries is (a) in violation of its charter or by-laws,
or (b) in default in any material respect, and no event has occurred
which, with notice or lapse of time or both, would constitute such a
default by Tritel, Inc., the Company or any subsidiary of the Company,
in the due performance or observance of any term, covenant or
condition contained in any Reviewed Agreement.
7. To my knowledge, except as set forth in the Offering Documents, there
are no pending actions or suits or judicial, arbitral, rulemaking,
administrative or other proceedings to which Tritel, Inc., the Company
or any of the Company's subsidiaries is a party or of which any
property or assets of Tritel, Inc., the Company or any of the
Company's subsidiaries is the subject which (a) singularly or in the
aggregate, if determined adversely to Tritel, Inc., the Company or any
of the Company's subsidiaries, could reasonably be expected to have a
Material Adverse Effect.
3
REVIEWED AGREEMENTS
1. Network Membership License Agreement, dated as of 7, 1999, January
between Tritel, Inc. and AT&T.
2. Intercarrier Roamer Service Agreement dated January 7, 1999, with AT&T
Wireless Services and several of its affiliates.
3. Roaming Administrative Service Agreement dated as of January 7, 1999,
between AT&T Wireless Services and Tritel.
4. Long Distance Agreement dated as of January 7, 1999, as amended.
5. Operating Agreement of Affiliate License Co., LLC dated April 16,
1999, among TeleCorp Wireless, Triton and Tritel Communications.
6. Amended and Restated Agreement dated April 16, 1999, by and among
TeleCorp Communications, Triton PCS, Tritel Communications and
Affiliate License Co. LLC.
7. Network Membership License Agreement dated January 7, 1999, by and
between AT&T Corp. and Tritel, Inc.
8. ALLTEL Put and Call Agreement dated on October 20, 2000, between AT&T
Wireless Services and Tritel, Inc., includes push down to Tritel
License -Alabama, Inc.
9. ALLTEL Asset Purchase Agreement dated October 23, 2000, between ALLTEL
Communications and Tritel, Inc.
10. License Acquisition Agreement dated as of December 11, 2000 between
ABC Wireless and Tritel Holding Corp.
11. License Acquisition Agreement dated October 27, 2000, with Panther
Wireless and Tritel License-Florida, Inc. and Tritel License-Georgia.
12. Assignment and Assumption Agreement dated January 11, 2001, between
Panther Wireless to ▇▇▇▇▇▇▇▇▇▇ Communications.
13. Senior Credit Facility dated as of March 31, 1999, with Tritel, Inc.,
Toronto Dominion (Texas), Inc. and lenders, includes Revolver, Term
Loan A and Term Loan B, as amended.
EXHIBIT G
Based on the foregoing, and subject to the assumptions, qualifications and
exceptions contained herein, it is Wiley, Rein & ▇▇▇▇▇▇▇▇'▇ opinion that:
1. AirCom holds the FCC broadband Personal Communications Service ("PCS")
licenses described in Exhibit I.A, attached hereto (the "AirCom
-----------
Licenses"). To our knowledge, each of the AirCom Licenses is in full
force and effect. The AirCom Licenses provide FCC authorization to
construct and operate a PCS network in the respective markets
designated in the AirCom Licenses, subject to the terms and conditions
of the respective AirCom Licenses and the Communications Laws.
2. DigiCall holds the FCC broadband PCS licenses described in Exhibit
-------
I.B, attached hereto (the "DigiCall Licenses"). To our knowledge, each
---
of the DigiCall Licenses is in full force and effect. The DigiCall
Licenses provide FCC authorization to construct and operate a PCS
network in the respective markets designated in the DigiCall Licenses,
subject to the terms and conditions of the respective DigiCall
Licenses and the Communications Laws.
3. DigiCom holds the FCC broadband PCS licenses described in Exhibit I.C,
-----------
attached hereto (the "DigiCom Licenses"). To our knowledge, each of
the DigiCom Licenses is in full force and effect. The DigiCom Licenses
provide FCC authorization to construct and operate a PCS network in
the respective markets designated in the DigiCom Licenses, subject to
the terms and conditions of the respective DigiCom Licenses and the
Communications Laws.
4. QuinCom holds attached hereto the FCC broadband PCS licenses described
in Exhibit I.D (the "QuinCom Licenses"). To our knowledge, each of the
-----------
QuinCom Licenses is in full force and effect. The QuinCom Licenses
provide FCC authorization to construct and operate a PCS network in
the respective markets designated in the QuinCom Licenses, subject to
the terms and conditions of the respective QuinCom Licenses and the
Communications Laws.
5. T-AL holds the FCC broadband PCS licenses described in Exhibit I.E
-----------
attached hereto (the "T-AL Licenses"). To our knowledge, each of the
T-AL Licenses is in full force and effect. The T-AL Licenses provide
FCC authorization to construct and operate a PCS network in the
respective markets designated in the T-AL Licenses, subject to the
terms and conditions of the respective T-AL Licenses and the
Communications Laws.
2
6. ClearCall holds the FCC broadband PCS licenses described in Exhibit I.
---------
F, (the "ClearCall Licenses"). To our knowledge, each of I.F, the
-
attached hereto ClearCall Licenses is in full force and effect. The
ClearCall Licenses provide FCC authorization to construct and operate
a PCS network in the respective markets designated in the ClearCall
Licenses, subject to the terms and conditions of the respective
ClearCall Licenses and the Communications Laws.
7. ClearWave holds the FCC broadband PCS licenses described in Exhibit
-------
I.G, attached hereto (the "ClearWave Licenses"). To our knowledge,
---
each of the ClearWave Licenses is in full force and effect. The
ClearWave Licenses provide FCC authorization to construct and operate
a PCS network in the respective markets designated in the ClearWave
Licenses, subject to the terms and conditions of the respective
ClearWave Licenses and the Communications Laws.
8. DigiNet holds the FCC broadband PCS licenses described in Exhibit I.A,
-----------
attached hereto (the "DigiNet Licenses"). To our knowledge, each of
the DigiNet Licenses is in full force and effect. The DigiNet Licenses
provide FCC authorization to construct and operate a PCS network in
the respective markets designated in the DigiNet Licenses, subject to
the terms and conditions of the respective DigiNet Licenses and the
Communications Laws.
9. Global holds the FCC broadband PCS licenses described in Exhibit I.A,
-----------
attached hereto (the "Global Licenses"). To our knowledge, each of the
Global Licenses is in full force and effect. The Global Licenses
provide FCC authorization to construct and operate a PCS network in
the respective markets designated in the Global Licenses, subject to
the terms and conditions of the respective Global Licenses and the
Communications Laws.
10. NexCom holds the FCC broadband PCS licenses described in Exhibit I.A,
-----------
attached hereto (the "NexCom Licenses" and, together with the AirCom
Licenses, DigiCall Licenses, the DigiCom Licenses, QuinCom Licenses,
T-AL Licenses, ClearCall License, ClearWave License, DigiNet Licenses,
and Global Licenses, the "FCC Licenses"). To our knowledge, each of
the NexCom Licenses is in full force and effect. The NexCom Licenses
provide FCC authorization to construct and operate a PCS network in
the respective markets designated in the NexCom Licenses, subject to
the terms and conditions of the respective NexCom Licenses and the
Communications Laws.
11. To our knowledge, except for those affecting the industry generally
and those disclosed in Exhibit II, there are no proceedings pending or
threatened in writing under the Communications Laws against the
Company, the Tritel License Subsidiaries, or the FCC Licenses by or
before the FCC which seek the
3
revocation, non-renewal, or material adverse modification of any of
the FCC Licenses or the rights thereunder.
12. The statements in the Offering Memorandum under the headings "Risk
Factors--Risks Relating to Regulatory Matters" and "Business--
Government Regulation" insofar as they constitute summaries of the
Communications Laws are accurate in all material respects. The
statements in the Offering Memorandum under the heading "Business--
Legal Proceedings--High Plains" insofar as they constitute summaries
of the Court of Appeals proceeding are accurate in all material
respects.
13. The execution and delivery by the Company of the Agreement and the
issuance by the Company of the securities as described in the
Agreement and pursuant to the Agreement does not constitute a
violation by the Company of the Communications Laws assuming that, in
connection therewith: (i) no individual or entity will acquire an
attributable interest (as defined by the FCC) in the Company, or in
the Tritel Licensee Subsidiaries that violates the Communications
Laws; (ii) not more than 25% of the capital stock of the Company, or
the Tritel Licensee Subsidiaries will be owned by alien individuals or
entities, or representatives thereof; and (iii) that AirCom, DigiCom,
DigiCall, QuinCom, and T-AL continue to meet the requirements for
"entrepreneurial" status under Section 24.709 and 24.720(b) of the
Commission's Rules, 47 C.F.R. (S)(S) 24.709, 24.720.
As used herein, the term "full force and effect" means that to our
knowledge based upon our above-described review of certain FCC public files: (a)
the orders issuing the FCC Licenses have become effective; (b) no stay of
effectiveness of such orders has been issued by the FCC; and (c) the FCC
Licenses have not been invalidated by any subsequent published FCC action.
EXHIBIT I
A. AirCom PCS, Inc.
----------------------------------------------------------------------------------------------------
Call Sign BTA Name BTA No. Blk MHz
----------------------------------------------------------------------------------------------------
KNLF457 Montgomery, AL BTA305 C 15
----------------------------------------------------------------------------------------------------
KNLF604 Anniston, AL BTA017 C 15
----------------------------------------------------------------------------------------------------
KNLF605 Birmingham, AL BTA044 C 15
----------------------------------------------------------------------------------------------------
KNLF606 Decatur, AL BTA108 C 15
----------------------------------------------------------------------------------------------------
KNLF607 Gadsden, AL BTA158 C 15
----------------------------------------------------------------------------------------------------
KNLF608 Huntsville, AL BTA198 C 15
----------------------------------------------------------------------------------------------------
KNLF609 Tuscaloosa, AL BTA450 C 15
----------------------------------------------------------------------------------------------------
B. DigiCall, Inc.
----------------------------------------------------------------------------------------------------
Call Sign BTA Name BTA No. Blk MHz
----------------------------------------------------------------------------------------------------
KNLG908 Biloxi, MS BTA042 F 10
----------------------------------------------------------------------------------------------------
KNLG918 Hattiesburg, MS BTA186 F 10
----------------------------------------------------------------------------------------------------
KNLG922 ▇▇▇▇▇▇, MS BTA246 E 10
----------------------------------------------------------------------------------------------------
KNLG925 McComb-Brookhaven, MS BTA269 F 10
----------------------------------------------------------------------------------------------------
C. DigiCom, Inc.
----------------------------------------------------------------------------------------------------
Call Sign BTA Name BTA No. Blk MHz
----------------------------------------------------------------------------------------------------
KNLG909 Bowing Green-Glasgow, KY BTA052 F 10
----------------------------------------------------------------------------------------------------
KNLG923 Louisville, KY BTA263 F 10
----------------------------------------------------------------------------------------------------
▇. ▇▇▇▇▇▇▇, Inc.
----------------------------------------------------------------------------------------------------
Call Sign BTA Name BTA No. Blk MHz
----------------------------------------------------------------------------------------------------
KNLG912 Dothan-Enterprise, AL BTA115 F 10
----------------------------------------------------------------------------------------------------
KNLG914 Florence, AL BTA146 F 10
----------------------------------------------------------------------------------------------------
KNLG927 Mobile, AL BTA302 F 10
----------------------------------------------------------------------------------------------------
KNLG928 Montgomery, AL BTA305 F 10
----------------------------------------------------------------------------------------------------
KNLG933 Selma, AL BTA415 F 10
----------------------------------------------------------------------------------------------------
▇. ▇▇▇▇▇▇ License-Alabama, Inc.
----------------------------------------------------------------------------------------------------
Call Sign BTA Name BTA No. Blk MHz
----------------------------------------------------------------------------------------------------
KNLG288 Birmingham, AL BTA044 D 10
----------------------------------------------------------------------------------------------------
KNLG350 Tuscaloosa, AL BTA450 D 10
----------------------------------------------------------------------------------------------------
F. ClearCall, Inc.
----------------------------------------------------------------------------------------------------
Call Sign MTA Name MTA No. Blk MHz Notes
----------------------------------------------------------------------------------------------------
WPOI258 Knoxville MTA044 A 20 1
----------------------------------------------------------------------------------------------------
G. ClearWave, Inc.
----------------------------------------------------------------------------------------------------
Call Sign MTA Name MTA No. Blk MHz Notes
----------------------------------------------------------------------------------------------------
WPOI257 Memphis-▇▇▇▇▇▇▇ MTA028 B 20 2
----------------------------------------------------------------------------------------------------
H. DigiNet PCS, Inc.
----------------------------------------------------------------------------------------------------
Call Sign MTA Name MTA No. Blk MHz Notes
----------------------------------------------------------------------------------------------------
WPOI256 Nashville MTA043 B 20 3
----------------------------------------------------------------------------------------------------
I. Global PCS, Inc.
----------------------------------------------------------------------------------------------------
Call Sign MTA Name MTA No. Blk MHz Notes
----------------------------------------------------------------------------------------------------
WPOI255 Louisville-Lexington-Evansville MTA026 A 20 4
----------------------------------------------------------------------------------------------------
NexCom, Inc.
----------------------------------------------------------------------------------------------------
Call Sign MTA Name MTA No. Blk MHz Notes
----------------------------------------------------------------------------------------------------
WPOI259 Atlanta MTA011 A 20 5
----------------------------------------------------------------------------------------------------
Notes:
1. Geographic partition of the Knoxville MTA (MT A044) consisting only of the
BTA of Knoxville, TN (BT A232).
2. Geographic partition of the Memphis-▇▇▇▇▇▇▇ MTA (MT A028) consisting only
of the BTAs of Columbus-Starkville, MS (BTA094); Greenville-Greenwood, MS
(BTA175); ▇▇▇▇▇▇▇, MS (BTA210); Meridian, MS (BTA292); Natchez, MS (BTA315);
Tupelo-Corinth, MS (BTA449); Vicksburg, MS (BTA455); and, the county of
▇▇▇▇▇▇▇▇▇▇, MS in the Memphis, MS BTA (BTA290 ).
3. Geographic partition of the Nashville MTA (MTA043) consisting only of the
BTAs of Clarksville, TN-Hopkinsville, KY (BTA0 83); Cookeville, TN (BTA 096);
and Nashville, TN (BTA 314).
4. Geographic partition of the Louisville-Lexington-Evansville MTA (M TA02
6) consisting only of the BTAs of Bowling Green-Glasgow, KY (BTA052); Corbin,
KY (BTA098); Lexington, KY (BTA252); Louisville, KY (BTA263 ); Madisonville, KY
(BTA27 3); Owensboro, KY (B TA338); and Somerset, KY (BTA42 3).
4. Geographic partition of the Atlanta MTA (MTA 011) consisting only of the BTAs
of Chattanooga, TN (BTA 076); Cleveland, TN (BTA 085); Dalton, GA (BT A102); La
Grange, GA (B TA237); Ope lika-Auburn, AL (BTA334); Rome, GA (BT A384); and, the
counties of ▇▇▇▇▇▇▇, GA and ▇▇▇▇▇▇▇▇, GA in the Atlanta, GA (BTA024 ).
EXHIBIT II
PROCEEDINGS
1. High Plains Wireless, L.P. v. Federal Communications Commission, No. 00-
1292 (D.C. Cir. filed June 30, 2000). Nineteen of the FCC licenses held by
Company subsidiaries, eight of which the Company is contractually obligated to
sell to a third party, were originally awarded to Mercury PCS II, LLC
("Mercury") as a result of the FCC's D, E, and F Block PCS auction. ▇▇▇▇▇▇▇'s
original application for these authorizations was contested by High Plains
Wireless, L.P. ("High Plains"), a competing bidder in that auction, which
alleged that ▇▇▇▇▇▇▇ violated the FCC's rules by engaging in reflexive bidding.
Although the FCC originally proposed to fine Mercury $650,000 for this
violation, the FCC ultimately rescinded its forfeiture based upon its
determination that Mercury lacked notice that reflexive bidding was prohibited
conduct. During the course of the FCC proceedings regarding ▇▇▇▇▇▇▇'s bidding
activities, High Plains also asserted that Mercury violated the FCC's ex parte
regulations and demonstrated a lack of candor in responding to the FCC's
inquires. This appeal seeks review of FCC decisions: (i) granting certain
licenses to Mercury and eliminating conditions on other previously granted
licenses and (ii) finding in favor of ▇▇▇▇▇▇▇ on the ex parte and candor issues.
The Company has intervened in the appeal and filed a motion arguing for
dismissal of High Plains appeal on jurisdictional and procedural grounds.
EXHIBIT H
KPMG Comfort Letter