**EXHIBIT10.1**

 

UBIQUITEL OPERATING COMPANY

 

UBIQUITEL INC. AS GUARANTOR

 

$270,000,000

 

97/8% Senior Notes due 2011

 

Purchase Agreement

 

February 12, 2004

 

BEAR, STEARNS & CO. INC.

CITIGROUP GLOBAL MARKETS INC.

BANC OF AMERICASECURITIES LLC

 

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UBIQUITEL OPERATINGCOMPANY

 

$270,000,000

 

97/8%Senior Notes due 2011

 

PURCHASE AGREEMENT

 

February 12,2004

New York, New York

 

| BEAR, STEARNS & CO.  INC.     |
|-----------------------------------|
| CITIGROUP GLOBAL  MARKETS INC.    |
| BANC OF AMERICA  SECURITIES LLC   |
| c/o Bear, Stearns &  Co. Inc. |
|                              | 383 Madison Avenue |
|                              | New York, New York  10179 |

 

Ladies & Gentlemen:

 

UbiquiTelOperating Company, a Delaware corporation (the “***Company***”), proposes to issue and sell toBear, Stearns & Co. Inc., Citigroup Global Markets Inc. and Banc of AmericaSecurities LLC (each, an “***InitialPurchaser***” and, collectively, the “***Initial Purchasers***”) $270,000,000 inaggregate principal amount of 97/8% Senior Notes due 2011(the “***Initial Notes***”),subject to the terms and conditions set forth herein.

 

# 1.                                       TheTransactions.  Subject to the termsand conditions herein contained, the Company proposes to issue and sell to theInitial Purchasers $270,000,000 in aggregate principal amount of the InitialNotes.  The Initial Notes and theExchange Notes (as defined below) are collectively referred to herein as the “***Notes***.”  The Notes will (i) have the terms andprovisions that are described in the Offering Memorandum (as defined below)under the heading “Description of Notes” and such other terms as are customaryand (ii) be issued pursuant to an indenture (the “***Indenture***”), to be dated as of the ClosingDate (as defined below), among the Company, the Guarantor (as defined) and TheBank of New York, as trustee (the “***Trustee***”).

#  

The InitialPurchasers and other holders (including subsequent transferees) of the InitialNotes will have the registration rights set forth in the registration rightsagreement relating thereto (the “***Registration Rights Agreement”)****,* to be dated the Closing Date, for solong as such Initial Notes constitute Transfer Restricted Securities (asdefined in the Registration Rights Agreement). Pursuant to the Registration Rights Agreement, the Company and theGuarantor will agree to file with the Securities and Exchange Commission (the “***Commission***”), underthe circumstances set forth therein, (i) a registration statement (the “***Registration Statement***”)on the appropriate form with the Commission under the Securities Act of 1933,as amended (together with the rules and regulations of the Commissionpromulgated thereunder, the “***Act***”), relating to the Company’s 97/8%Senior Notes due 2011 (the “***Exchange Notes***”) and Guarantees thereof to be offered inexchange for the Initial Notes and Guarantees thereof (the “***Exchange Offer***”) and(ii) a shelf registration statement pursuant to Rule 415 under the Act (the “***Shelf Registration Statement***”“)

 

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relating to the resale bycertain holders of the Initial Notes, and to use their commercially reasonableefforts to cause such Registration Statements to be declared effective and toconsummate the Exchange Offer.

 

The sale of theInitial Notes and the Guarantees to the Initial Purchasers (the “***Offering***”) will bemade without registration under the Act, in reliance upon the exemptiontherefrom provided by Section 4(2) of the Act.

 

In connection withthe sale of the Initial Notes and the Guarantees thereof, the Company hasprepared a preliminary offering memorandum dated February 4, 2004 (the “***Preliminary Offering Memorandum***”),and a final offering memorandum, to be dated the date the Guarantor’s report onForm 10-K for the year ended December 31, 2003 is filed with theCommission (the “***Offering Memorandum***”),each setting forth information regarding the Company, the Guarantor, the Notesand the Guarantees, the terms of the Offering and the transactions contemplatedby the Offering Documents (as defined below). Any reference to the Preliminary Offering Memorandum or the OfferingMemorandum shall be deemed to refer to and include the information expresslyincorporated by reference thereto under the sections entitled “SecurityOwnership of Certain Beneficial Owners, Directors and Executive Officers,”“Proposal 1:  Election of Class IIIDirectors,” “Our Board of Directors,” “Executive Compensation” and “CertainTransactions” in the Guarantor’s definitive proxy statement datedApril 23, 2003 (the “***ProxyStatement***”).

 

The Company herebyconfirms that it has authorized the use of the Preliminary Offering Memorandumand the Offering Memorandum in connection with the offering and resale of theNotes by the Initial Purchasers.

 

The Companyunderstands that the Initial Purchasers propose to make an offering of theInitial Notes (the “***Exempt Resales***”)only on the terms and in the manner set forth in the Offering Memorandum, asamended or supplemented, and Sections 4, 5 and 12 hereof, solely to(i) persons in the United States whom the Initial Purchasers reasonablybelieve to be qualified institutional buyers (“***QIBs***”) as defined in Rule 144A under the Act,as such rule may be amended from time to time (“***Rule 144A***”), in transactions under Rule 144Aand (ii) outside the United States to certain persons in reliance on RegulationS (“***Regulation S***”) underthe Act (each, a “***Reg S Investor***”).  The QIBs and the Reg S Investors arecollectively referred to herein as the “***Eligible Purchasers***.” The Initial Purchasers will offer the Initial Notes to such EligiblePurchasers initially at a price equal to 98.26% of the principal amountthereof.  Such price may be changed atany time without notice.

 

The payment ofprincipal of, premium and liquidated damages, if any, and interest on the Noteswill be fully and unconditionally guaranteed on an unsecured basis by UbiquiTelInc. (the “***Guarantor***”),pursuant to its guarantees (the “***Guarantees***”). The Company has one subsidiary, UbiquiTel Leasing Company (“***subsidiary***”), whichwill not be a guarantor of payment on the Notes.  The Initial Notes and the Guarantees attached thereto are hereincollectively referred to as the “***Securities***”; and the Exchange Notes and the Guaranteesattached thereto are herein collectively referred to as the “***Exchange Securities***.”  This Agreement, the Securities, the ExchangeSecurities, the Indenture and the Registration Rights Agreement are hereinafterreferred

 

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to collectively as the “***Offering Documents***.”Capitalized terms used herein and not otherwise defined shall have themeanings assigned to such terms in the Indenture.

 

# 2.                                       Representationsand Warranties of the Company and the Guarantor.  The Company and the Guarantor, jointly and severally, representand warrant to the Initial Purchasers that:

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###### (a)                                  ThePreliminary Offering Memorandum as of its date did not, and the OfferingMemorandum, as of its date and as of the Closing Date, will not, and anysupplement or amendment to them will not, contain any untrue statement of amaterial fact or omit to state any material fact necessary in order to make thestatements therein, in light of the circumstances under which they were made,not misleading, except that the representations and warranties contained inthis paragraph shall not apply to statements in or omissions from the OfferingMemorandum (or any supplement or amendment thereto) made in reliance upon andin conformity with information relating to the Initial Purchasers furnished tothe Company and the Guarantor in writing by or on behalf of the InitialPurchasers expressly for use therein.

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###### (b)                                 ThePreliminary Offering Memorandum and the Offering Memorandum have been and willbe prepared by the Company for use by the Initial Purchasers in connection withthe Offering.  No order or decreepreventing the use of the Preliminary Offering Memorandum or the OfferingMemorandum, or any amendment or supplement thereto, or any order asserting thatany of the transactions contemplated by this Agreement are subject to theregistration requirements of the Act, has been issued, and no proceeding forthat purpose has commenced or is pending or, to the best knowledge of theCompany and the Guarantor, is contemplated.

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###### (c)                                  Thesections of the Proxy Statement, when filed with the Commission, did notcontain an untrue statement of a material fact or omit to state a material factrequired to be stated therein or necessary to make the statements therein notmisleading; such sections of Proxy Statement expressly incorporated byreference in the Offering Memorandum when filed with the Commission, conformedin all material respects to the requirements of the Securities Exchange Act of1934, as amended (together with the rules and regulations of the Commissionpromulgated thereunder, the “***Exchange Act***”).

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###### (d)                                 Subsequentto the respective dates as of which information is given in the OfferingMemorandum (or, if the Offering Memorandum is not in existence, the most recentPreliminary Offering Memorandum), except as disclosed in the OfferingMemorandum (or, if the Offering Memorandum is not in existence, the most recentPreliminary Offering Memorandum), (i) the Guarantor has not declared, paid ormade any dividends or other distributions of any kind on or in respect of itscapital stock and (ii) there has been no material adverse change or anydevelopment involving a prospective material adverse change, in the capitalstock or the long-term debt, or material increase in the short-term debt, ofthe Company, its subsidiary, or the Guarantor whether or not arising fromtransactions in the ordinary course of business, in or affecting (A) thebusiness, condition (financial or otherwise), results of operations,stockholders’ equity, properties or prospects of the Company, its subsidiary,or the Guarantor, taken as a whole; or (B) the ability of the Company andthe Guarantor to consummate the Offering or any of the other transactionscontemplated by the Offering Documents.

 

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###### (e)                                  Sincethe date of the latest balance sheet included in the Offering Memorandum (or,if the Offering Memorandum is not in existence, the most recent PreliminaryOffering Memorandum), none of the Company, its subsidiary or the Guarantor has incurredor undertaken any liability or obligation, whether direct or indirect,liquidated or contingent, matured or unmatured, or entered into anytransaction, including any acquisition or disposition of any business or asset,which is material to the Company, its subsidiary or the Guarantor, individuallyor taken as a whole, except for liabilities, obligations and transactions thatare disclosed in the Offering Memorandum (or, if the Offering Memorandum is notin existence, the most recent Preliminary Offering Memorandum).

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###### (f)                                    Eachof the Company, its subsidiary and the Guarantor has been duly organized and isvalidly existing as a corporation in good standing under the laws of itsjurisdiction of incorporation.  Each ofthe Company, its subsidiary and the Guarantor has all requisite power andauthority to carry on its business as it is currently being conducted and asdisclosed in the Offering Memorandum (or, if the Offering Memorandum is not inexistence, the most recent Preliminary Offering Memorandum), and to own, leaseand operate its respective properties.

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###### (g)                                 Eachof the Company, its subsidiary and the Guarantor is duly qualified andauthorized to do business and is in good standing as a foreign corporation ineach jurisdiction in which the character or location of its properties (ownedor leased) or the nature or conduct of its business requires suchqualification, except for those failures to be so qualified or in good standingthat, could not, individually or in the aggregate, reasonably be expected tohave a material adverse effect on (A) the business, condition (financialor otherwise), results of operations, stockholders’ equity, properties orprospects of the Company, its subsidiary or the Guarantor, taken as a whole;(B) the long-term debt or capital stock of the Company, its subsidiary andthe Guarantor; (C) the issuance of the Notes or (D) the validity ofthis Agreement or any other Offering Document or the transactions described inthe Offering Memorandum under the caption “Use of Proceeds” (any of the eventsset forth in (A), (B), (C) or (D), a “***Material Adverse Effect***”).

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###### (h)                                 UbiquiTelLeasing Company is the only subsidiary of the Company within the meaning ofRule 405 under the Act.

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###### (i)                                     Exceptfor its subsidiary, the Company holds no ownership or other interest, nominalor beneficial, direct or indirect, in any corporation, partnership, jointventure or other business entity.  Allof the outstanding shares of capital stock of the Company have been dulyauthorized and validly issued and are fully paid and non-assessable and areowned, directly or indirectly, by the Guarantor, and all of the outstandingshares of capital stock of the Company’s subsidiary have been duly authorizedand validly issued and are fully paid and non-assessable and are owned,directly or indirectly, by the Company, in each case issued, in compliance withall applicable state, federal and foreign securities laws and not in violationof or subject to any preemptive or similar right that does or will entitle anyperson, upon the issuance or sale of any security, to acquire from the Company,its subsidiary or the Guarantor, any Relevant Security (as defined below) andfree and clear of any lien, charge, mortgage, pledge, security interest, claim,limitation on voting rights, equity, trust or other encumbrance, preferentialarrangement, defect or restriction of any kind whatsoever (any “***Lien***”), except forany such security interest, claim, lien,

 

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limitation on votingrights or encumbrance pursuant to the $277,700,000 Credit Agreement datedMarch 31, 2000, among the Company, the Guarantor and the lenders a partythereto (as amended, modified or supplemented as of the date of the PreliminaryOffering Memorandum, the “***CreditAgreement***”).

 

###### (j)                                     Exceptas disclosed in the Offering Memorandum (or, if the Offering Memorandum is notin existence, the most recent Preliminary Offering Memorandum), none of theCompany, its subsidiary or the Guarantor have outstanding subscriptions, rights,warrants, calls, commitments of sale or options to acquire, or any preemptiverights or other rights to subscribe for or to purchase, or any contracts orcommitments to issue or sell, or instruments convertible into or exchangeablefor, any capital stock or other equity interest in, the Company, its subsidiaryor the Guarantor (any “***Relevant Security***”).

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###### (k)                                  Whenthe Initial Notes and the Guarantees thereof are issued and delivered pursuantto this Agreement, no Initial Note or Guarantee thereof will be of the sameclass (within the meaning of Rule 144A under the Act) as securities of theCompany or any Guarantor that are listed on a national securities exchangeregistered under Section 6 of the Exchange Act or that are quoted in aUnited States automated inter-dealer quotation system.

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###### (l)                                     Eachof the Company and the Guarantor has all requisite corporate power andauthority to execute, deliver and perform its obligations under this Agreementand each of the other Offering Documents to which it is a party and toconsummate the transactions contemplated hereby and thereby, including, withoutlimitation, the corporate power and authority to issue, sell and deliver theNotes and to issue and deliver the related Guarantees as provided herein andtherein.

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###### (m)                               TheInitial Notes have been duly and validly authorized by the Company for issuanceand sale to the Initial Purchasers pursuant to this Agreement and, when dulyexecuted by the Company and authenticated by the Trustee in accordance with theprovisions of the Indenture and upon delivery to the Initial Purchasers againstpayment therefor in accordance with the terms of this Agreement, will bevalidly, issued and delivered and will constitute valid and legally bindingobligations of the Company, entitled to the benefits of the Indenture andenforceable against the Company in accordance with their terms, except that theenforcement thereof may be limited by (i) bankruptcy, insolvency,reorganization, moratorium or other similar laws now or hereafter in effectrelating to or affecting creditors’ rights generally and (ii)  generalprinciples of equity (regardless of whether such enforcement is considered in aproceeding at law or in equity) ((i) and (ii) are referred to hereincollectively as the “***Enforceability Exceptions***”).  At the Closing Date, the Initial Notes will conform in allmaterial respects to the description thereof in the Offering Memorandum, andwill be in the form contemplated by the Indenture.

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###### (n)                                 TheGuarantees of the Initial Notes have been duly and validly authorized by theGuarantor for issuance to the Initial Purchasers pursuant to this Agreementand, when duly executed by the Guarantor in accordance with the provisions ofthe Indenture and delivered to the Initial Purchasers in accordance with theterms of this Agreement, upon the due execution and authentication of theInitial Notes in accordance with the provisions of the Indenture and theissuance and delivery of the Initial Notes to the Initial Purchasers inaccordance with the terms of this Agreement, will constitute valid and legallybinding obligations of the Guarantor, enforceable

 

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against it in accordancewith their terms and entitled to the benefits of the Indenture, except that theenforcement thereof may be limited by the Enforceability Exceptions.  At the Closing Date, the Guarantees of theInitial Notes will conform in all material respects to the descriptions thereofin the Offering Memorandum and will be in the form contemplated by theIndenture.

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###### (o)                                 TheExchange Notes have been duly and validly authorized for issuance by theCompany and, when duly executed by the Company and authenticated by the Trusteeand issued and delivered in accordance with the terms of the Exchange Offer, theRegistration Rights Agreement and the Indenture, will constitute valid andlegally binding obligations of the Company, entitled to the benefits of theIndenture and enforceable against the Company in accordance with their terms,except that the enforcement thereof may be limited by the EnforceabilityExceptions.  When issued, the ExchangeNotes will conform in all material respects to the description thereof in theOffering Memorandum, and will be in the form contemplated by the Indenture.

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###### (p)                                 TheGuarantees of the Exchange Notes have been duly and validly authorized by theGuarantor and, when duly executed by the Guarantor and delivered in accordancewith the provisions of the Indenture, upon the due execution and authenticationof the Exchange Notes and the issuance and delivery of the Exchange Notes inaccordance with the terms of the Exchange Offer, the Registration RightsAgreement and the Indenture, will constitute valid and legally bindingobligations of the Guarantor, entitled to the benefits of the Indenture andenforceable against the Guarantor in accordance with their terms, except thatthe enforcement thereof may be limited by the Enforceability Exceptions.  When issued, the Guarantees of the ExchangeNotes will conform in all material respects to the description thereof in theOffering Memorandum, and will be in the form contemplated by the Indenture.

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###### (q)                                 TheIndenture has been duly and validly authorized by the Company and the Guarantorand meets the requirements for qualification under the Trust Indenture Act of1939, as amended (the “***Trust Indenture Act***”), and the rules and regulations ofthe Commission applicable to an indenture so qualified, and, when duly executedand delivered by the Company and the Guarantor (assuming the due authorization,execution and delivery by the Trustee), will constitute a valid and legallybinding obligation of the Company and the Guarantor, enforceable against eachof the Company and the Guarantor in accordance with its terms, except that theenforcement thereof may be limited by the Enforceability Exceptions.  At the Closing Date, the Indenture willconform in all material respects to the description thereof in the OfferingMemorandum.

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###### (r)                                    TheRegistration Rights Agreement has been duly and validly authorized by theCompany and the Guarantor and, when duly executed and delivered by the Companyand the Guarantor (assuming the due authorization, execution and delivery bythe Initial Purchasers), will constitute a valid and legally binding obligationof the Company and the Guarantor, enforceable against each of the Company andthe Guarantor in accordance with its terms, except that the enforcement thereofmay be limited by the Enforceability Exceptions and rights to indemnificationand contribution thereunder may be limited by applicable law or publicpolicy.  At the Closing Date, theRegistration Rights Agreement will conform in all material respects to thedescription thereof in the Offering Memorandum.

 

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###### (s)                                  ThisAgreement has been duly and validly authorized, executed and delivered by theCompany and the Guarantor.

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###### (t)                                    Noneof the Company, its subsidiary or the Guarantor is (i) in violation of itscertificate or articles of incorporation, bylaws or other organizationaldocuments, (ii) in default under, and no event has occurred which, withnotice or lapse of time or both or otherwise, would constitute a default under,or result in the creation or imposition of any Lien upon, any of its propertyor assets pursuant to, any bond, debenture, note, indenture, mortgage, deed oftrust, loan agreement or other agreement or instrument to which it is a partyor by which it is bound or to which any of its properties or assets is subject,or (iii) in violation of any law, rule, regulation, ordinance, directive,judgment, decree or order of any judicial, regulatory, administrative or otherlegal or governmental agency or body, foreign or domestic (including, withoutlimitation, the Federal Communications Act of 1934, as amended (the “***Communications Act”***)and the rules or regulations of the Federal Communications Commission (the “***FCC”***) except (in thecase of clauses (ii) and (iii) above) defaults or violations that could not,individually or in the aggregate, reasonably be expected to have a MaterialAdverse Effect and except (in the case of clause (ii) alone) for any Liendisclosed in the Offering Memorandum (or, if the Offering Memorandum is not inexistence, the most recent Preliminary Offering Memorandum).

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###### (u)                                 Noneof (i) the execution, delivery, and performance by the Company or theGuarantor of this Agreement and the other Offering Documents to which it is aparty, (ii) the issuance and sale of the Initial Notes, the issuance ofthe Exchange Notes, the issuance of the Guarantees of the Initial Notes and theissuance of the Guarantees of the Exchange Notes, and (iii) theconsummation by the Company of the transactions described in the OfferingMemorandum (or, if the Offering Memorandum is not in existence, the most recentPreliminary Offering Memorandum) under the caption “Use of Proceeds,”(A) violates, or will violate, conflicts with, or will conflict with, orresults, or will result in, a breach of any of the terms and provisions of, orconstitutes, or will constitute, a default (or an event that with notice orlapse of time, or both, would constitute a default) under, or results, or willresult in, the creation or imposition of any Lien upon any properties or assetsof the Company, its subsidiary or the Guarantor, or an acceleration of anyindebtedness of the Company, its subsidiary or the Guarantor, pursuant to(1) any provision of the certificate of incorporation, articles ofincorporation or bylaws or other organizational document, of the Company, itssubsidiary or the Guarantor, (2) any bond, debenture, note, indenture,mortgage, deed of trust, loan agreement or other agreement or instrument towhich the Company, its subsidiary or the Guarantor is a party or by which theCompany, its subsidiary or the Guarantor, is bound or to which any of theirrespective properties or assets are subject, (3) any law, rule, regulationor ordinance (including, without limitation, the Communications Act and therules and regulations of the FCC) applicable to the Company, its subsidiary orthe Guarantor or any of their properties or assets, or (4) any directive,judgment, order or decree of any judicial, regulatory, administrative or otherlegal or governmental agency or body, foreign or domestic, (including, withoutlimitation, the FCC) except (in the case of clauses (2), (3) and (4) above) ascould not, individually or in the aggregate, reasonably be expected to have aMaterial Adverse Effect.

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###### (v)                                 Eachof the Company, its subsidiary and the Guarantor has or holds all necessaryconsents, approvals, authorizations, orders, registrations, qualifications,licenses, franchises, certificates, filings and permits of, with and from alljudicial, regulatory,

 

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administrative and otherlegal or governmental agencies or bodies, and all third parties, foreign anddomestic (collectively, the “***Consents***”) (including, without limitation, the FCC), toown, lease and operate its properties and conduct its business as it is nowbeing conducted and as disclosed in the Offering Memorandum (or, if theOffering Memorandum is not in existence, the most recent Preliminary OfferingMemorandum), except for such Consents the absence of which could not,individually or in the aggregate, reasonably be expected to have a MaterialAdverse Effect, and each such Consent is valid and in full force and effect,except where the failure of any such Consent to be so valid and in full forceand effect could not, individually or in the aggregate, reasonably be expectedto have a Material Adverse Effect, and none of the Company, its subsidiary orthe Guarantor has received notice of any investigation or proceedings thatresults in or, if decided adversely to the Company, its subsidiary or theGuarantor, could reasonably be expected to result in, the revocation of, orimposition of a materially burdensome restriction on, any Consent.  Each of the Company, its subsidiary and theGuarantor is in compliance in all material respects with the terms and conditionsof all such Consents and with the laws, rules, regulations, ordinances,directives, judgments, decrees and orders of the governmental or regulatoryauthorities (including, without limitation, the FCC) having jurisdiction withrespect thereto.  None of the Company,its subsidiary or the Guarantor has any reason to believe that any governmentalor regulatory authority is considering revoking, suspending or terminating anysuch Consent, and to the best knowledge of the Company, no event has occurredthat allows, or after notice or lapse of time would allow, such revocation,suspension or termination or that results or would result in any other materialimpairment of the rights of the holder of any such Consent.  Except as disclosed in the Offering Memorandum(or, if the Offering Memorandum is not in existence, the most recentPreliminary Offering Memorandum), no Consent contains a materially burdensomerestriction to the Company, its subsidiary or the Guarantor.

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###### (w)                               NoConsent is required for (i) the execution, delivery and performance by eachof the Company and the Guarantor of this Agreement or consummation of theOffering, the Exchange Offer and the other transactions contemplated by theOffering Documents to which each of them, respectively, is a party or(ii) the issuance, sale and delivery of the Initial Notes (and theissuance of the Exchange Notes in connection with the Exchange Offer), and theissuance of the Guarantee, except such Consents as have been or will beobtained and made effective on or prior to the Closing Date (or, in the case ofthe Registration Rights Agreement, will be obtained and made under the Act, theTrust Indenture Act, and state securities or Blue Sky laws and regulations).

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###### (x)                                   Exceptas disclosed in the Offering Memorandum (or, if the Offering Memorandum is notin existence, the most recent Preliminary Offering Memorandum), there is(i) no judicial, regulatory, arbitral or other legal or governmentalaction, suit, investigation or proceeding or other litigation or arbitrationbefore or by any court, arbitrator or regulatory, administrative orgovernmental agency or body, foreign or domestic (including, withoutlimitation, the FCC), pending to which the Company, its subsidiary or theGuarantor is or may be a party or, to the best knowledge of the Company, of whichthe business, property, operations or assets of the Company, its subsidiary orthe Guarantor is or may be subject, (ii) no rule, regulation, ordinance,directive, judgment, decree or order that has been enacted, adopted or issuedby any regulatory, administrative or governmental agency or body (including,without limitation, the FCC) or that has been proposed by any regulatory,administrative or governmental agency or body (including, without limitation,the FCC) of which the business, property,

 

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operations or assets ofthe Company, its subsidiary or the Guarantor is or may be subject, and(iii) no injunction, restraining order or order of any nature by a federalor state court or foreign court of competent jurisdiction to which the Company,its subsidiary or the Guarantor is or may be subject or to which the business,property, operations or assets of the Company, its subsidiary or the Guarantoris or may be subject, that, individually or in the aggregate, if determinedadversely to the Company, its subsidiary or the Guarantor, could reasonably beexpected to have a Material Adverse Effect; to the best knowledge of theCompany and the Guarantor, no such proceeding, litigation or arbitration isthreatened or contemplated.

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###### (y)                                 Aftergiving effect to the transactions contemplated by each of the OfferingDocuments, no event or condition exists that would constitute a default or anevent of default under any of the Offering Documents (in each case as definedin each of the respective Offering Documents) that would result in a MaterialAdverse Effect or materially adversely affect the ability of the Company toconsummate the Offering and the other transactions contemplated by the OfferingDocuments, including, without limitation, the Exchange Offer.

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###### (z)                                   Noaction has been taken and no law, rule, regulation, ordinance, directive,judgment, decree or order has been enacted, adopted or issued by anyregulatory, administrative or governmental agency or body (including, withoutlimitation, the FCC)  that prevents theissuance of the Notes or the Guarantees or prevents or suspends the use of theOffering Memorandum; no injunction, restraining order or order of any nature bya federal or state court of competent jurisdiction has been issued thatprevents the issuance of the Notes or the Guarantees or prevents or suspendsthe sale of the Initial Notes or the Guarantees in any jurisdiction referred toin Section 2(f) hereof; and every request of any securities authority or agencyof any jurisdiction for additional information has been complied with in allmaterial respects.

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###### (aa)                            Thereis (i) no significant unfair labor practice complaint pending against theCompany, its subsidiary or the Guarantor nor, to the best knowledge of theCompany and the Guarantor, threatened against any of them, before the NationalLabor Relations Board, any state or local labor relations board or any foreignlabor relations board, and no significant grievance or significant arbitrationproceeding arising out of or under any collective bargaining agreement is sopending against the Company, its subsidiary or the Guarantor or, to the bestknowledge of the Company and the Guarantor, threatened against any of them,(ii) no significant strike, labor dispute, slowdown, or stoppage pendingagainst the Company, its subsidiary or the Guarantor nor, to the best knowledgeof the Company and the Guarantor, threatened against any of them, (iii) nolabor disturbance by the employees of the Company, its subsidiary or theGuarantor, or, to the best knowledge of the Company and the Guarantor, no suchdisturbance is imminent and neither the Company nor the Guarantor is aware ofany existing or imminent labor disturbances by any of its principal suppliers,manufacturers or contractors that, in any such case, could, individually or inthe aggregate, reasonably be expected to have a Material Adverse Effect, and(iv) to the best knowledge of the Company and the Guarantor, no unionrepresentation question is existing with respect to the employees of theCompany, its subsidiary or the Guarantor. To the best knowledge of the Company and the Guarantor, no collectivebargaining organizing activities are taking place with respect to the Company,its subsidiary or the Guarantor.  Noneof the Company, its subsidiary or the Guarantor has violated (i) anyfederal, state or local law or foreign law relating to discrimination inhiring, promotion or pay of employees, (ii) any applicable wage or hourlaws, or (iii) any provision of the Employee Retirement Income SecurityAct of 1974, as amended,

 

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including the rules,regulations and published interpretations thereunder (“***ERISA***”),****except those violations that could not,individually or in the aggregate, reasonably be expected to have a MaterialAdverse Effect.

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###### (bb)                          Therehas been no storage, generation, transportation, handling, treatment, disposal,discharge, emission or other release of any kind of toxic or other wastes orother hazardous substances by, due to, or caused by the Company, its subsidiaryor the Guarantor (or, to the best knowledge of the Company and the Guarantor,any other entity for whose acts or omissions the Company is or may be liable)upon any property now or previously owned or leased by the Company, itssubsidiary or the Guarantor that would be a violation of or give rise to anyliability under any applicable law, rule, regulation, ordinance, directive,judgment, decree or order, relating to the protection of human health andsafety, the environment or hazardous or toxic substances or wastes, pollutantsor contaminants (“***Environmental Law***”).  Neither the Company nor the Guarantor hasagreed to assume, undertake or provide indemnification for any liability of anyother person under any Environmental Law, including any obligation for cleanupor remedial action.  There is no pendingor, to the best knowledge of the Company and the Guarantor, threatenedadministrative, regulatory or judicial action, claim or notice of noncomplianceor violation, investigation or proceedings relating to any Environmental Lawagainst the Company or the Guarantor.

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###### (cc)                            Thereis no alleged liability, or to the best knowledge of the Company and theGuarantor, potential liability (including, without limitation, alleged orpotential liability or investigatory costs, cleanup costs, governmentalresponse costs, natural resource damages, property damages, personal injuriesor penalties) of the Company, its subsidiary or the Guarantor, arising out of,based on or resulting from (i) the presence or release into theenvironment of any Hazardous Material (as defined below) at any location,whether or not owned by the Company, its subsidiary or the Guarantor, as thecase may be, or (ii) any violation or alleged violation of anyEnvironmental Law, other than as disclosed in the Offering Memorandum (or, ifthe Offering Memorandum is not in existence, the most recent PreliminaryOffering Memorandum).  The term “***Hazardous Material***”means (A) any “hazardous substance” as defined by the ComprehensiveEnvironmental Response, Compensation and Liability Act of 1980, as amended,(B) any “hazardous waste” as defined by the Resource Conservation andRecovery Act, as amended, (C) any petroleum or petroleum product,(D) any polychlorinated biphenyl, and (E) any pollutant orcontaminant or hazardous, dangerous or toxic chemical, material, waste orsubstance regulated under or within the meaning of any other law relating toprotection of human health or the environment or imposing liability orstandards of conduct concerning any such chemical material, waste or substance.

######  

###### (dd)                          Each ofthe Company, its subsidiary and the Guarantor own or lease all such propertiesas are necessary to the conduct of its business as presently operated and asdescribed in the Offering Memorandum (or, if the Offering Memorandum is not inexistence, the most recent Preliminary Offering Memorandum).  Each of the Company, its subsidiary and theGuarantor have (i) good and marketable title in fee simple to all of realproperty and good and marketable title to all personal property owned by them,in each case free and clear of all Liens except for Liens existing under the Credit Agreement, other Permitted Liens (asdefined in the Offering Memorandum or, if the Offering Memorandum is notin existence, the most recent Preliminary Offering Memorandum), and such other Liens as do not,individually or in the

 

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aggregate, materiallyaffect the value of such property or interfere with the use made or proposed tobe made of such property by each of the Company, its subsidiary and theGuarantor) and (ii) peaceful and undisturbed possession of any realproperty and buildings held under lease or sublease by the Company, itssubsidiary and the Guarantor and such leased or subleased real property andbuildings are held by them under valid, subsisting and enforceable leases andno default exists thereunder, (including, to the best knowledge of the Companyand the Guarantor, defaults by the landlord) with such exceptions as are notmaterial to, and do not interfere with, the use made and proposed to be made ofsuch property and buildings by each of the Company, its subsidiary and theGuarantor.  None of the Company, its subsidiaryor the Guarantor has received any notice of any claim adverse to its ownershipof any real or personal property or of any claim against the continuedpossession of any real property, whether owned or held under lease or subleaseby the Company, its subsidiary or the Guarantor that could, individually or inthe aggregate, reasonably be expected to have a Material Adverse Effect.

######  

###### (ee)                            Eachof the Company, its subsidiary and the Guarantor (i) owns or possessesadequate right to use all patents, patent applications, patent rights,licenses, formulae, customer lists, inventions, copyrights, know-how (includingtrade secrets and other unpatented and/or unpatentable proprietary orconfidential information, software, systems or procedures), trademarks, servicemarks, trade names, trademark registrations, service mark registrations,computer programs, technical data and information, and know-how and otherintellectual property (collectively, including trade secrets and otherunpatented and/or unpatentable proprietary or confidential information, systemsor procedures, the “***Intellectual Property***”)necessary for the conduct of its business as presently being conducted and asdescribed in the Offering Memorandum (or, if the Offering Memorandum is not in existence, the most recentPreliminary Offering Memorandum), and (ii) has no reason to believe thatthe conduct of its business does or will conflict with, and has not receivedany notice of any claim of conflict with, any such right of others (except forsuch right, or claimed right pursuant to the Credit Agreement and except wheresuch right, or claimed right, could not, individually or in the aggregate,reasonably be expected to have a Material Adverse Effect.)  To the best knowledge of the Company and theGuarantor, all material technical information developed by and belonging to theCompany, its subsidiary and the Guarantor that has not been patented has beenkept confidential.  None of the Company,its subsidiary or the Guarantor has granted or assigned to any other person orentity any right to manufacture, have manufactured, assemble or sell thecurrent products and services of the Company, its subsidiary or the Guarantor,except as disclosed in the Offering Memorandum (or, if the Offering Memorandumis not in existence, the most recent Preliminary Offering Memorandum).  To the best knowledge of the Company and theGuarantor, there is no infringement by third parties of any IntellectualProperty of the Company, its subsidiary or the Guarantor; there is no pendingor, to the best knowledge of the Company and the Guarantor, threatened action,suit, proceeding or claim by others challenging the Company’s, its subsidiary’sor the Guarantor’s rights in or to any Intellectual Property, except where anysuch pending or threatened action, suit, proceeding or claim could not,individually or in the aggregate, reasonably be expected to have a MaterialAdverse Effect, and the Company and the Guarantor are unaware of any facts thatwould form a reasonable basis for any such claim; and there is no pending or,to the best knowledge of the Company and the Guarantor, threatened action,suit, proceeding or claim by others that any of the Company, its subsidiary orthe Guarantor infringes or otherwise violates any Intellectual Property ofothers, except where such threatened or pending action, proceeding or claimcould not, individually or in the aggregate, reasonably be expected to have a

 

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Material Adverse Effect,and the Company and the Guarantor are unaware of any other fact that would forma reasonable basis for any such claim.

######  

###### (ff)                                Eachof the Company, its subsidiary and the Guarantor have accurately prepared andtimely filed all tax returns required to be filed by it and has paid or madeprovision for the payment of all taxes, assessments, governmental or othersimilar charges, including without limitation, all sales and use taxes and alltaxes that the Company, its subsidiary or the Guarantor is obligated towithhold from amounts owing to employees, creditors and third parties, withrespect to the periods covered by such tax returns (whether or not such amountsare shown as due on any tax return), except for such taxes the Company or theGuarantor has contested in good faith. No deficiency assessment with respect to a proposed adjustment of theCompany’s, its subsidiary’s or any Guarantor’s federal, state, local or foreigntaxes is pending or, to the best knowledge of the Company and the Guarantor,threatened.  To the best knowledge ofthe Company and the Guarantor, there are no material proposed additional taxassessments against the Company, its subsidiary or the Guarantor, or the assetsor property of the Company, its subsidiary or the Guarantor.  The accruals and reserves on the books andrecords of the Company, its subsidiary and the Guarantor in respect of taxliabilities for any taxable period not finally determined are adequate to meetany assessments and related liabilities for any such period and, since December 31,2003, neither the Company, its subsidiary nor the Guarantor has incurred anyliability for taxes other than in the ordinary course of its business.  There is no tax Lien, whether imposed by anyfederal, state, foreign or other taxing authority, outstanding against theassets, properties or business of the Company, its subsidiary or the Guarantor.

######  

###### (gg)         Each of the Company, its subsidiary andthe Guarantor maintains a system of internal accounting and other controlssufficient to provide reasonable assurances that (i) transactions areexecuted in accordance with management’s general or specific authorizations,(ii) transactions are recorded as necessary to permit preparation offinancial statements in conformity with generally accepted accountingprinciples and to maintain accountability for assets, (iii) access toassets is permitted only in accordance with management’s general or specificauthorization, and (iv) the recorded accounting for assets is comparedwith existing assets at reasonable intervals and appropriate action is takenwith respect to any differences.

######  

###### (hh)                          Each ofthe Company, its subsidiary and the Guarantor maintains insurance in suchamounts and covering such risks as the Company reasonably considers adequatefor the conduct of its business and the value of its properties and as iscustomary for other comparable PCS affiliates of Sprint (as defined in theOffering Memorandum), all of which insurance is in full force and effect,except where the failure to maintain such insurance could not, individually orin the aggregate, reasonably be expected to have a Material AdverseEffect.  There are no material claims bythe Company, its subsidiary or the Guarantor under any such policy orinstrument as to which any insurance company is denying liability or defendingunder a reservation of rights clause. The Company reasonably believes that it will be able to renew itsexisting insurance as and when such coverage expires or will be able to obtainreplacement insurance adequate for the conduct of the business and the value ofits properties at a cost that could not, individually or in the aggregate,reasonably be expected to have a Material Adverse Effect.  None of the Company, its subsidiary or theGuarantor has received notice from any insurer or agent of such insurer thatsubstantial capital improvements or other expenditures will have to be made inorder to continue such insurance.

 

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###### (ii)                                  TheCompany has in effect insurance covering the Company and its directors andofficers for liabilities or losses arising in connection with this Offering,including, without limitation, liabilities or losses arising under the Act andthe Exchange Act.

######  

###### (jj)                                  Exceptas disclosed in the Offering Memorandum (or, if the Offering Memorandum is notin existence, the most recent Preliminary Offering Memorandum), norelationship, direct or indirect, exists between or among the Company, itssubsidiary or the Guarantor or any affiliate of the Company, on the one hand,and any director, executive officer, stockholder, customer or supplier of theCompany, its subsidiary or the Guarantor or any affiliates of the Company, onthe other hand, that is required by the Exchange Act to be described in theGuarantor’s annual and/or quarterly report on Form 10-K and 10-Q, that is notso described or described as required in such reports, or that would berequired by the Act to be described in the Offering Memorandum if the OfferingMemorandum were a prospectus included in a registration statement on Form S-1filed with the Commission.  There are nooutstanding loans, advances (except normal advances for business expenses inthe ordinary course of business) or guarantees of indebtedness by the Companyto or for the benefit of any of the officers or directors of the Company or anyof their respective family members.  TheCompany has not, in violation of the Sarbanes-Oxley Act of 2002, directly orindirectly, including through any subsidiary, extended or maintained credit,arranged for the extension of credit, or renewed an extension of credit, in theform of a personal loan to or for any director or executive officer of theCompany.

######  

###### (kk)                            Noneof the Company, its subsidiary or the Guarantor is, or after the sale of theInitial Notes and application the net proceeds of such sale as described in theOffering Memorandum (or, if the Offering Memorandum is not in existence, themost recent Preliminary Offering Memorandum), under the caption “Use ofProceeds,” 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***”).

######  

###### (ll)                                  Exceptas disclosed in the Offering Memorandum (or, if the Offering Memorandum is notin existence, the most recent Preliminary Offering Memorandum), no holder ofany Relevant Security has any rights to require registration of any RelevantSecurity by reason of the execution by the Company or the Guarantor of thisAgreement or any other Offering Document to which it is a party or theconsummation by the Company or the Guarantor of the transactions contemplatedhereby and thereby, or as part or on account of, or otherwise in connectionwith the Offering and any of the other transactions contemplated by the OfferingDocuments, and any such rights so disclosed have been effectively waived by theholders thereof, and any such waivers remain in full force and effect.

######  

###### (mm)                      None of theCompany, its subsidiary or the Guarantor, or any of their respective affiliates(within the meaning of Rule 144 under the Act) has (i) taken, directly orindirectly, any action designed to, or that could reasonably be expected to,cause or result in stabilization or manipulation of the price of any securityof the Company, its subsidiary or the Guarantor to facilitate the sale orresale of the Notes or (ii) since the date of the Preliminary OfferingMemorandum (A) sold, bid for, purchased or paid any person anycompensation for soliciting purchases of the Notes or (B) paid or agreedto pay to any person any compensation for soliciting another to purchase anyother securities of the Company, its subsidiary or the Guarantor.

 

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###### (nn)                          None ofthe Company, its subsidiary or the Guarantor or any of their respectiveaffiliates (as defined in Rule 501(b) of Regulation D under the Act) orrepresentatives directly, or through any agent (other than the InitialPurchasers, as to whom the Company and the Guarantor make no representation),(i) sold, offered for sale, solicited offers to buy or otherwisenegotiated in respect of any “security” (as defined in the Act) that is orcould be integrated with the sale of the Securities in a manner that wouldrequire the registration under the Act of the Securities or (ii) engagedin any form of general solicitation or general advertising (as those terms areused in Regulation D under the Act) in connection with the offer and sale ofthe Securities or in connection with Exempt Resales of the Securities, or in anymanner involving a public offering within the meaning of Section 4(2) ofthe Act.  Assuming the accuracy of theInitial Purchasers’ representations and warranties set forth in Section 3****hereof,neither (i) the offer and sale of the Securities to the Initial Purchasersin the manner contemplated by this Agreement and the Offering Memorandum nor(ii) the Exempt Resales requires registration under the Act, and prior tothe effectiveness of any Registration Statement, the Indenture does not requirequalification under the Trust Indenture Act. No securities of the same class as the Securities have been offered andsold by the Company, its subsidiary or the Guarantor within the six-monthperiod immediately prior to the date hereof.

######  

###### (oo)                          Thefinancial statements, including the notes thereto, included in the OfferingMemorandum (or, if the Offering Memorandum is not in existence, the most recentPreliminary Offering Memorandum), present fairly the financial position as ofthe dates indicated and the cash flows and results of operations for theperiods specified of the Guarantor and its consolidated subsidiaries; except asdisclosed in the Offering Memorandum (or, if the Offering Memorandum is not inexistence, the most recent Preliminary Offering Memorandum), said financialstatements have been prepared in conformity with United States generallyaccepted accounting principles applied on a consistent basis throughout theperiods involved.  No other financialstatements are required to be included in the Offering Memorandum (or, if theOffering Memorandum is not in existence, the most recent Preliminary OfferingMemorandum), if the Offering Memorandum were included in a registrationstatement filed pursuant to the Act. The other financial and statistical information included in the OfferingMemorandum (or, if the Offering Memorandum is not in existence, the most recentPreliminary Offering Memorandum), presents fairly the information includedtherein and has been prepared on a basis consistent with that of the historicalconsolidated financial statements that are included in the Offering Memorandumand the books and records of the respective entities presented therein, exceptas otherwise disclosed in the Offering Memorandum (or, if the OfferingMemorandum is not in existence, the most recent Preliminary OfferingMemorandum), and, to the extent such information is a range, projection orestimate, is based on the good faith belief and estimates of the management ofthe Company, its subsidiary and the Guarantor.

######  

###### (pp)                          PricewaterhouseCoopersLLP, who have certified or will certify the consolidated financial statementsfor the years ended December 31, 2003 and 2002 of the Company, itssubsidiary and the Guarantor and that are included as part of the OfferingMemorandum (or, if the Offering Memorandum is not in existence, the most recentPreliminary Offering Memorandum), is an independent public accounting firm asrequired by the Act and the Exchange Act. Arthur Andersen LLP, who have previously certified the consolidated financialstatements of the Company, its subsidiary and the Guarantor and that areincluded as part of the 

 

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Offering Memorandum, wasat the time of such certification, an independent public accounting firm.

######  

###### (qq)                          Thestatistical, industry-related and market-related data included in the OfferingMemorandum (or, if the Offering Memorandum is not in existence, the most recentPreliminary Offering Memorandum) are based on or derived from managementestimates and third-party sources that the Company and the Guarantor reasonablyand in good faith believe to be reasonable, reliable and accurate, and suchdata agree in all material respects with the sources from which they arederived.

######  

###### (rr)                                Eachof the Preliminary Offering Memorandum and the Offering Memorandum, as of itsdate, and each amendment or supplement thereto, as of its date, contains orwill contain the information specified in, and meets in all material respectsthe requirements of, Rule 144A(d)(4).

######  

###### (ss)                            Noneof the Company, the Guarantor nor any of their respective affiliates or anyperson acting on its or their behalf (other than the Initial Purchasers, as towhom the Company and the Guarantor make no representation) has engaged or willengage in any directed selling efforts within the meaning of Regulation S withrespect to the Initial Notes.

######  

###### (tt)                                TheInitial Notes offered and sold in reliance on Regulation S have been and willbe offered and sold only in offshore transactions.

######  

###### (uu)                          The saleof the Initial Notes pursuant to Regulation S is not part of a plan or schemeto evade the registration provisions of the Act.

######  

###### (vv)                          TheCompany, the Guarantor and their respective affiliates and all persons actingon their behalf (other than the Initial Purchasers, as to whom the Company andthe Guarantor make no representation) have complied with and will comply withthe offering restrictions requirements of Regulation S in connection with theoffering of the Initial Notes outside the United States and, in connectiontherewith, the Offering Memorandum will contain the disclosure required by Rule902(g)(2).

 

###### (ww)                      None of theexecution, delivery and performance of this Agreement, the issuance and sale ofthe Securities, the application of the proceeds from the issuance and sale ofthe Securities and the consummation of the transactions contemplated thereby asset forth in the Offering Memorandum (or, if the Offering Memorandum is not inexistence, the most recent Preliminary Offering Memorandum), will violateRegulations T, U or X promulgated by the Board of Governors of the FederalReserve System or analogous foreign laws and regulations, in each case as ineffect, or as the same may hereafter be in effect, on the Closing Date (the “***Regulations***”), andnone of the Company, its subsidiary or the Guarantor nor any agent thereofacting on the behalf of any of them has taken, and none of them will take, anyaction that might cause this Agreement or the issuance or sale of the Notes andthe Guarantees to violate the Regulations.

 

###### (xx)                              Neitherthe Company nor the Guarantor is, nor will any of them be, after giving effectto the execution, delivery and performance of the Offering Documents and theconsummation of the transactions contemplated thereby, (i) left withunreasonably small capital

 

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with which to carry ontheir respective businesses as proposed to be conducted; (ii) unable topay their debts (contingent or otherwise) as they mature; or(iii) insolvent.  The fair valueand present fair saleable value of the assets of the Company and the Guarantorexceeds the amount that will be required to be paid on or in respect of itsexisting debts and other liabilities (including contingent liabilities) as theybecome absolute and matured.  The assetsof the Company and the Guarantor do not constitute unreasonably small capitalto carry out its business as conducted and disclosed in the Offering Memorandum(or, if the Offering Memorandum is not in existence, the most recent PreliminaryOffering Memorandum).  Immediately afterthe consummation of the Offering, (i) the fair value and present fairsaleable value of the assets of the Company and the Guarantor will exceed thesum of their stated liabilities and identified contingent liabilities as theybecome absolute and matured, and (ii) the assets of the Company and theGuarantor will not constitute unreasonably small capital to carry out itsbusiness as now conducted, including the capital needs of the Company and theGuarantor, taking into account the projected capital requirements and capitalavailability.

######  

###### (yy)                          Exceptpursuant to this Agreement, there are no contracts, agreements orunderstandings between or among the Company, its subsidiary or the Guarantor,and any other person that would give rise to a valid claim against the Company,its subsidiary or the Guarantor or the Initial Purchasers for a brokeragecommission, finder’s fee or like payment in connection with the issuance,purchase and sale of the Securities.

######  

###### (zz)                              Exceptas disclosed in the Offering Memorandum (or, if the Offering Memorandum is notin existence, the most recent Preliminary Offering Memorandum), none of theCompany, its subsidiary or the Guarantor is in default under any of theOffering Documents or any of the contracts described in the Offering Memorandum(or, if the Offering Memorandum is not in existence, the most recentPreliminary Offering Memorandum), has received a notice or claim of any suchdefault or has knowledge of any breach of such contracts by the other party orparties thereto, except in each case such defaults or breaches as could not,individually or in the aggregate, reasonably be expected to have a MaterialAdverse Effect.

######  

###### (aaa)                      TheGuarantor is subject to the reporting requirements of Section 13 or 15(d)of the Exchange Act and files reports with the Commission on the EDGARSystem.  The Guarantor’s common stock(the “***Common Stock***”)is registered pursuant to Section 12(g) of the Exchange Act and theoutstanding shares of Common Stock are listed for quotation on the NasdaqNational Market, and the Guarantor has taken no action designed to, or likelyto have the effect of, terminating the registration of the Common Stock underthe Exchange Act or de-listing the Common Stock from the Nasdaq NationalMarket, nor has the Company received any notification that the Commission orthe Nasdaq National Market is contemplating terminating such registration orlisting.

######  

###### (bbb)                   The Guarantorhas filed in a timely manner each document or report required to be filed by itpursuant to the Exchange Act; each such document or report (including anyfinancial statements) and any amendment thereto at the time it was filedconformed in all material respects to the requirements of the Exchange Act andthe Act; and none of such documents or reports contained (or, when readtogether with the other information in the Offering Memorandum, do contain) anuntrue statement of any material fact or omitted (or, when read together withthe other information in the Offering Memorandum, do omit) to state anymaterial

 

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fact required to bestated therein or necessary to make the statements therein not misleading asthe case may be and at all times up to and including the Closing Date, will notcontain an untrue statement of a material fact or omit to state a material factrequired to be stated therein or necessary in order to make the statementstherein in, the light of the circumstances under which they were made, notmisleading.

 

###### (ccc)                      None of theCompany, its subsidiary or the Guarantor, nor, to the best knowledge of theCompany and the Guarantor, none of its officers has at any time during the lastfive years (i) made any unlawful contribution to any candidate for foreignoffice, or failed to disclose fully any contribution in violation of law, or(ii) made any payment to any federal or state governmental officer orofficial, or other person charged with similar public or quasi-public duties,other than payments required or permitted by the laws of the United States orany jurisdiction thereof.

 

###### (ddd)                   The Company hasnot distributed and, prior to the later to occur of (i) the Closing Dateand (ii) completion of the distribution of the Securities, will notdistribute any offering material in connection with the offering and sale ofthe Securities other than the Preliminary Offering Memorandum and the OfferingMemorandum.

######  

###### (eee)                      Thesection entitled “Management’s Discussion and Analysis of FinancialCondition and Results of Operation–Critical Accounting Policies” in theOffering Memorandum (or, if the Offering Memorandum is not in existence, themost recent Preliminary Offering Memorandum), accurately and fully describes(i) accounting policies that the Company believes are the most importantin the portrayal of the financial condition and results of operations of theGuarantor and its consolidated subsidiaries and which require management’s mostdifficult, subjective or complex judgments (“***critical accounting policies***”); and(ii) judgments and uncertainties affecting the application of criticalaccounting policies.

######  

###### (fff)                            Thesection entitled “Management’s Discussion and Analysis of FinancialCondition and Results of Operations – Liquidity and Capital Resources” in theOffering Memorandum (or, if the Offering Memorandum is not in existence, themost recent Preliminary Offering Memorandum) accurately and fully describes(i) all material trends, demands, commitments, events, uncertainties andrisks, and the potential effects thereof, that the Company believes wouldmaterially affect liquidity and are reasonably likely to occur; and(ii) all off-balance sheet arrangements that have or are reasonably likelyto have a current or future effect on the financial condition, changes in financialcondition, revenues or expenses, results of operations, liquidity, capitalexpenditures or capital resources of the Company and its subsidiary taken as awhole.

######  

###### (ggg)                   Except asdisclosed in the Offering Memorandum (or, if the Offering Memorandum is not inexistence, the most recent Preliminary Offering Memorandum), there are nooutstanding guarantees or other contingent obligations of the Company or theGuarantor that could, individually or in the aggregate, reasonably be expectedto have a Material Adverse Effect.

######  

###### (hhh)   To the best knowledge of the Company andthe Guarantor, the minute books and records of the Company, its subsidiary andthe Guarantor relating to all proceedings of their respective stockholders,boards of directors, and committees of their respective boards of

 

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directors made availableto Latham & Watkins LLP, counsel for the Initial Purchasers, are theiroriginal minute books and records or are true, correct and complete copiesthereof, with respect to all proceedings of said stockholders, boards ofdirectors and committees since December 31, 2000 through the datehereof.  In the event that definitiveminutes have not been prepared with respect to any proceedings of suchstockholders, boards of directors or committees, the Company and the Guarantorhave provided Latham & Watkins LLP with originals or true, correct andcomplete copies of draft minutes or written agendas relating thereto, whichdrafts and agendas, if any, reflect all events that occurred in connection withsuch proceedings.  To the best knowledgeof the Company and the Guarantor, all material instruments, records, agreementsand other documents requested in Latham & Watkins LLP’s document requestletter dated January 22, 2004 have been provided to, or made available forinspection by, Latham & Watkins LLP.

######  

###### (iii)                               Eachcertificate signed by or on behalf of the Company or the Guarantor anddelivered to the Initial Purchasers or counsel for the Initial Purchasers shallbe deemed to be a representation and warranty by the Company or the Guarantor,as the case may be, to the Initial Purchasers as to the matters coveredthereby.

######  

Each of theCompany and the Guarantor acknowledges that the Initial Purchasers and, forpurposes of the opinions to be delivered to the Initial Purchasers pursuant toSection 10 hereof, counsel for the Company and the Guarantor and counselfor the Initial Purchasers, will rely upon the accuracy and truth of theforegoing representations and hereby consents to such reliance.

 

# 3.                                       Representationsand Warranties of the Initial Purchasers. Each of the Initial Purchasers, severally and not jointly, represents,warrants and covenants to the Company and the Guarantor and agrees that:

#  

###### (a)                                  SuchInitial Purchaser is an institutional “accredited investor” (as defined in Rule501(a)(1), (2), (3) or (7) under the Act) with such knowledge and experience infinancial and business matters as are necessary in order to evaluate the meritsand risks of an investment in the Initial Notes.

######  

###### (b)                                 SuchInitial Purchaser (i) is not acquiring the Initial Notes with a view toany distribution thereof that would violate the Act or the securities laws ofany state of the United States or any other applicable jurisdiction and(ii) will be reoffering and reselling the Initial Notes only to QIBs inreliance on the exemption from the registration requirements of the Actprovided by Rule 144A and in offshore transactions in reliance upon RegulationS under the Act.

######  

###### (c)                                  SuchInitial Purchaser agrees that it has not offered or sold and will not offer orsell the Initial Notes in the United States or to, or for the benefit oraccount of, a U.S. Person (other than a distributor), in each case, as definedin Rule 902 under the Act (i) as part of its distribution at any time and (ii)otherwise until 40 days after the later of the commencement of the offering ofthe Initial Notes pursuant hereto and the Closing Date, other than inaccordance with Regulation S of the Act or another exemption from the registrationrequirements of the Act.  Such InitialPurchaser agrees that, during such 40-day distribution compliance period, itwill not cause any advertisement with respect to the Initial Notes (includingany “tombstone” advertisement) to be published in any newspaper or periodicalor posted in any public place and

 

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will not issue anycircular relating to the Initial Notes, except such advertisements as permittedby and include the statements required by Regulation S.

######  

###### (d)                                 SuchInitial Purchaser agrees that, at or prior to confirmation of a sale of InitialNotes by it to any distributor, dealer or person receiving a sellingconcession, fee or other remuneration during the 40-day distribution complianceperiod referred to in Rule 903(b)(3) under the Act, it will send to suchdistributor, dealer or person receiving a selling concession, fee or otherremuneration a confirmation or notice to substantially the following effect:

######  

“The Initial Notes covered hereby have not been registered under theU.S. Securities Act of 1933, as amended (the “***Securities Act***”), and may not be offered andsold within the United States or to, or for the account or benefit of, U.S.persons (i) as part of your distribution at any time or (ii) otherwise until 40days after the later of the commencement of the Offering and the Closing Date,except in either case in accordance with Regulation S under the Securities Actor other exemption from the registration requirements of the Securities Act,and in connection with any subsequent sale by you of the Initial Notes coveredhereby in reliance on Regulation S during the period referred to above to anydistributor, dealer or person receiving a selling concession, fee or otherremuneration, you must deliver a notice to substantially the foregoingeffect.  Terms used above have themeanings assigned to them in Regulation S.”

 

###### (e)                                  Noform of general solicitation or general advertising (within the meaning ofRegulation D under the Act) has been or will be used by such Initial Purchaseror any of its representatives in connection with the offer and sale of any ofthe Initial Notes, including, but not limited to, articles, notices or othercommunications published in any newspaper, magazine, or similar medium orbroadcast over television or radio, or any seminar or meeting whose attendeeshave been invited by any general solicitation or general advertising.

######  

###### (f)                                    SuchInitial Purchaser agrees that, in connection with the Exempt Resales, it willsolicit offers to buy the Initial Notes only from, and will offer to sell theInitial Notes only to, Eligible Purchasers. Such Initial Purchaser further (i) agrees that it will offer tosell the Initial Notes only to, and will solicit offers to buy the Initial Notesonly from (A) Eligible Purchasers that the Initial Purchasers reasonablybelieves are QIBs, and (B) Reg S Investors,(ii) acknowledgesand agrees that, in the case of such QIBs and such Reg S Investors, that suchInitial Notes will not have been registered under the Act and may be resold,pledged or otherwise transferred only (A)(1) to a person whom the sellerreasonably believes is a QIB purchasing for its own account or for the accountof a QIB in a transaction meeting the requirements of Rule 144A, (2) in anoffshore transaction (as defined in Rule 902 under the Act) meeting therequirements of Rule 904 under the Act, (3) in a transaction meeting therequirements of Rule 144 under the Act, (4) to an institutional“accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of theAct) that, prior to such transfer, furnishes the Trustee a signed lettercontaining certain representations and agreements (the form of which can beobtained from the Trustee)and, if such transfer is in respect of anaggregate principal amount of Initial Notes less than $250,000, an opinion ofcounsel acceptable to the Company that such transfer is in compliance with theAct or (5) in accordance with another exemption from the registrationrequirements of the Act (and based upon an opinion of counsel, if the Companyso requests), (B) to the Company, (C) pursuant

 

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to an effectiveregistration statement under the Act and, in each case, in accordance with anyapplicable securities laws of any state of the United States or any otherapplicable jurisdiction and (iii) acknowledges that it will, and eachsubsequent holder is required to, notify any purchaser of the securityevidenced thereby of the resale restrictions set forth in (ii) above.

######  

###### (g)                                 SuchInitial Purchaser and its affiliates or any person acting on its or theirbehalf have not engaged or will not engage in any directed selling effortswithin the meaning of Regulation S with respect to the Initial Notes or theGuarantees thereof.

######  

###### (h)                                 TheInitial Notes offered and sold by such Initial Purchaser pursuant hereto inreliance on Regulation S have been and will be offered and sold only inoffshore transactions.

######  

###### (i)                                     Thesale of Initial Notes offered and sold by such Initial Purchaser pursuanthereto in reliance on Regulation S is not part of a plan or scheme to evade theregistration provisions of the Act.

######  

The InitialPurchasers acknowledge that the Company and the Guarantor and, for purposes ofthe opinions to be delivered to the Initial Purchasers pursuant toSection 10 hereof, counsel for the Company and the Guarantor and counselfor the Initial Purchasers will rely upon the accuracy and truth of theforegoing representations and hereby consent to such reliance.

 

# 4.                                       Purchase,Sale and Delivery.

#  

###### (a)                                  Onthe basis of the representations, warranties and covenants contained in thisAgreement, and subject to its terms and conditions, the Company agrees to issueand sell to each Initial Purchaser, and each Initial Purchaser agrees,severally and not jointly, to purchase from the Company, the principal amountsof Initial Notes set forth opposite the name of such Initial Purchaser on Schedule I.The purchase price for the Initial Notes will be $957.60 per $1,000 principalamount Initial Note.

######  

###### (b)                                 Onthe Closing Date, the Company shall deliver to the Initial Purchasers, in suchdenomination or denominations and registered in such name or names as theInitial Purchasers request upon notice to the Company, (i) one or moreInitial Notes in definitive global form, registered in the name of Cede &Co., as nominee of The Depository Trust Company (“***DTC***”), having an aggregate amountcorresponding to the aggregate principal amount of the Initial Notes soldpursuant to Exempt Resales to QIBs (the “***Global Note***”) and (ii) if any Exempt Resales aremade in reliance on Regulation S, one or more Initial Notes in definitive form,registered in the name of Cede & Co., as nominee of DTC, having anaggregate amount corresponding to the aggregate amount of the Initial Notes, ifany, sold pursuant to Exempt Resales in offshore transactions in reliance onRegulation S (the “***Regulation S GlobalNote***”), against payment of the purchase price therefor by wiretransfer of same-day funds to the account of the Company, previously designatedby it in writing.  Such delivery of andpayment for the Initial Notes shall be made at the offices of Latham &Watkins LLP, 885 Third Avenue, Suite 1000, New York, New York, 10022 or suchother location as may be mutually acceptable. Such delivery and payment shall be made at 9:30 a.m., New York Citytime, on February 23, 2004 or at such other time as shall be agreed uponby the Initial Purchasers and the Company. The time and date of such delivery and payment are herein called the “***Closing Date***.”  The Global Note and the

 

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Regulation S Global Noteshall be made available to the Initial Purchasers for inspection not later than5:00 p.m., New York City time, on the business day immediately preceding theClosing Date.

######  

# 5.                                       Offeringby Initial Purchasers.  The InitialPurchasers propose to make an offering of the Securities at the price and uponthe terms set forth in the Offering Memorandum as soon as practicable afterthis Agreement is entered into and as, in the judgment of the InitialPurchasers, is advisable.

#  

# 6.                                       Agreementsof the Company and the Guarantor. Each of the Company and the Guarantor covenants and agrees with theInitial Purchasers that:

#  

###### (a)                                  TheCompany and the Guarantor shall advise the Initial Purchasers promptly and, ifrequested by the Initial Purchasers, confirm such advice in writing,(i) of the issuance by any state securities commission or other regulatoryauthority of any stop order or order suspending the qualification or exemptionfrom qualification of any Notes or the Guarantees thereof for offering or salein any jurisdiction, or the initiation of any proceeding for such purpose byany state securities commission or other regulatory authority. and (ii) ofthe happening of any event that makes any statement of a material fact made inthe Preliminary Offering Memorandum or the Offering Memorandum untrue or thatrequires the making of any additions to or changes in the Preliminary OfferingMemorandum or the Offering Memorandum in order to make the statements in thePreliminary Offering Memorandum or the Offering Memorandum not misleading inthe light of the circumstances existing at the time it is delivered to anEligible Purchaser.  The Company and theGuarantor shall use their commercially reasonable efforts to prevent theissuance of any stop order or order suspending the qualification or exemptionfrom qualification of any Notes or the Guarantees thereof under any statesecurities or Blue Sky laws and, if at any time any state securities commissionor other regulatory authority issues an order suspending the qualification orexemption from qualification of any Notes or the Guarantees thereof under anystate securities or Blue Sky laws, the Company and the Guarantor shall usetheir commercially reasonable efforts to obtain the withdrawal or lifting ofsuch order at the earliest possible time.

######  

###### (b)                                 TheCompany and the Guarantor shall, without charge, provide to the InitialPurchasers, to counsel to the Initial Purchasers and to those personsidentified by the Initial Purchasers to the Company as many copies of thePreliminary Offering Memorandum and the Offering Memorandum, and any amendmentsor supplements thereto, as the Initial Purchasers may reasonably request.  The Company and the Guarantor consent to theuse of the Preliminary Offering Memorandum and the Offering Memorandum, and anyamendments and supplements thereto required pursuant hereto, by the InitialPurchasers in connection with Exempt Resales.

######  

###### (c)                                  Neitherthe Company nor the Guarantor will amend or supplement the Preliminary OfferingMemorandum or the Offering Memorandum or any amendment or supplement theretoduring such period as the Preliminary Offering Memorandum or the OfferingMemorandum is required by law to be delivered in connection with ExemptResales, unless the Initial Purchasers previously have been advised thereof andfurnished a copy for a reasonable period of time and as to which the InitialPurchasers have given their consent.  TheCompany and the Guarantor shall promptly make any amendment or supplement tothe Preliminary Offering

 

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Memorandum or theOffering Memorandum that may be necessary or advisable in connection with suchExempt Resales.

######  

###### (d)                                 If,during the period referred to in 6(c) above, any event occurs as a result ofwhich, it is necessary or advisable, to amend or supplement the PreliminaryOffering Memorandum or the Offering Memorandum in order to make such PreliminaryOffering Memorandum or Offering Memorandum not misleading in the light of thecircumstances existing at the time it is delivered to an Eligible Purchaser, orif for any other reason it shall be is necessary or advisable to amend orsupplement the Preliminary Offering Memorandum or the Offering Memorandum tocomply with applicable laws, rules or regulations, the Company and theGuarantor shall (subject to Section 6(c)) promptly amend or supplementsuch Preliminary Offering Memorandum or Offering Memorandum at its own expenseso that, as so amended or supplemented, such Preliminary Offering Memorandum orOffering Memorandum will not include an untrue statement of a material fact oromit to state a material fact necessary in order to make the statements therein,in light of the circumstances existing at the time it is so delivered, notmisleading or such Preliminary Offering Memorandum or Offering Memorandum willcomply with all applicable laws, rules or regulations.

######  

###### (e)                                  TheCompany and the Guarantor shall cooperate with the Initial Purchasers andcounsel for the Initial Purchasers in connection with the qualification orregistration of the Initial Notes and the Guarantees thereof for offering andsale under the securities or “Blue Sky” laws of such jurisdictions as theInitial Purchasers may designate and shall continue such qualifications ineffect for as long as may be necessary to complete the Exempt Resales; *provided,however*, that in connection therewith neither the Company nor theGuarantor shall be required to qualify as a foreign corporation where it is notnow so qualified or to execute a general consent to service of process in anyjurisdiction or to take any other action that would subject it to generalservice of process or to taxation in respect of doing business in anyjurisdiction in which it is not otherwise subject, in each case, other than asto matters and transactions relating to the Preliminary Offering Memorandum,the Offering Memorandum or Exempt Resales.

######  

###### (f)                                    Ifthis Agreement terminates or is terminated after execution because of anyfailure or refusal on the part of the Company or the Guarantor to comply withthe terms or fulfill any of the conditions of this Agreement, the Company shallreimburse the Initial Purchasers for all reasonable out-of-pocket expenses(including fees and expenses of counsel for the Initial Purchasers) incurred bythe Initial Purchasers in connection herewith.

######  

###### (g)                                 TheCompany shall apply the net proceeds from the sale of the Initial Notes in themanner set forth under “Use of Proceeds” in the Offering Memorandum and shallprovide the Initial Purchasers with evidence of any application of net proceedson the date of each such application.

######  

###### (h)                                 TheCompany and the Guarantor shall not voluntarily claim, and shall activelyresist any attempts to claim, the benefit of any usury laws against the holdersof any Notes.

######  

###### (i)                                     Noneof the Company, its subsidiary or the Guarantor or any of their respectiveaffiliates (as defined in Rule 501(b) of Regulation D under the Act) willsell, offer for

 

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sale or solicit offers tobuy or otherwise negotiate in respect of any “security” (as defined in the Act)that could be integrated with the sale of the Securities in a manner that wouldrequire the registration under the Act of the sale to the Initial Purchasers orthe Eligible Purchasers of the Securities or to take any other action thatwould result in the Exempt Resales not being exempt from registration under theAct.

######  

###### (j)                                     Forso long as any of the Notes remain outstanding and are “restricted securities”within the meaning of Rule 144(a)(3) under the Act and are not able to be soldin their entirety under Rule 144 under the Act (or any successor provision),for the benefit of holders from time to time of Initial Notes, the Company willfurnish at its expense, upon request, to any holder or beneficial owner ofInitial Notes and prospective purchasers of the Initial Notes, informationspecified in Rule 144A(d)(4) under the Act, unless the Company and theGuarantor are then subject to Section 13 or 15(d) of the Exchange Act.

######  

###### (k)                                  TheCompany and the Guarantor shall comply with all of the agreements set forth inthe representation letters to DTC relating to the approval of the Notes by DTCfor “book-entry” transfer.

######  

###### (l)                                     TheCompany and the Guarantor shall (i) permit the Notes to be included forquotation on the PORTAL market and (ii) permit the Notes to be eligiblefor clearance and settlement through DTC.

######  

###### (m)                               Duringthe period of three years from the Closing Date, the Company and the Guarantorshall deliver without charge to the Initial Purchasers (i) as soon asavailable, copies of each report and other communication (financial orotherwise) of the Company mailed to the Trustee of the holders of the Notes orstockholders (including without limitation, press releases) other thanmaterials filed with or furnished to the Commission and (ii)  from time totime such other information concerning the Company, its subsidiary and the Guarantoras the Initial Purchasers may reasonably request, subject, in the case ofinformation that is not public, to execution by the Initial Purchasers ofconfidentiality agreements reasonably satisfactory to the Company and theGuarantor.

######  

###### (n)                                 Priorto the Closing Date, the Company shall furnish to the Initial Purchasers, assoon as they have been prepared in the ordinary course by the Company, copiesof any unaudited interim consolidated financial statements of the Guarantor forany period subsequent to the periods covered by the financial statementsappearing in the Offering Memorandum.

######  

###### (o)                                 Eachof the Company and the Guarantor shall not take, directly or indirectly, anyaction designed to, or that could reasonably be expected to, cause or result instabilization or manipulation of the price of any security of the Company orthe Guarantor to facilitate the sale or resale of the Notes, or take any actionprohibited by Regulation M under the Exchange Act, in connection with thedistribution of the Securities and the Exchange Securities contemplatedhereby.  Except as permitted by the Act,neither the Company nor the Guarantor will distribute any (i) preliminaryoffering memorandum, including, without limitation, the Preliminary OfferingMemorandum, (ii) offering memorandum, including, without limitation, the

 

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Offering Memorandum, or(iii) other offering material in connection with the offering and sale ofthe Securities.

######  

###### (p)                                 Forso long as the Notes constitute “restricted” securities within the meaning ofRule 144(a)(3) under the Act, the Company and the Guarantor shall not, andshall not permit its subsidiary to, solicit any offer to buy or offer to sellthe Notes by means of any form of general solicitation or general advertising(as those terms are used in Regulation D under the Act) or in any mannerinvolving a public offering within the meaning of Section 4(2) of the Act.

######  

###### (q)                                 Duringthe period from the Closing Date until two years after the Closing Date, withoutthe prior written consent of the Initial Purchasers, the Company and theGuarantor shall not, and shall not permit any of their respective “affiliates”(as defined in Rule 144 under the Act) to, resell any of the Securities orthe Exchange Securities that constitute “restricted securities” under Rule 144that have been reacquired by any of them.

######  

###### (r)                                    TheCompany and the Guarantor shall do and perform all things required or necessaryto be done and performed under this Agreement prior to or after the ClosingDate and to satisfy all conditions precedent to the delivery of the InitialNotes and the Guarantees thereof.

 

# 7.                                       Expenses.  Whether or not the transactions contemplatedby this Agreement are consummated or this Agreement becomes effective or isterminated (pursuant to Section 14****or otherwise), the Company and theGuarantor agree to pay all the following costs and expenses and all othercosts, expenses, fees and taxes incident to the performance by the Company andthe Guarantor of their obligations hereunder: (i) the negotiation, preparation, printing, typing, filing,reproduction, execution and delivery of this Agreement and of the otherOffering Documents, any amendment or supplement to or modification of any ofthe foregoing and any and all other documents furnished pursuant hereto orthereto or in connection herewith or therewith and with the Exempt Resales;(ii) the preparation, printing or reproduction of the Preliminary OfferingMemorandum, and the OfferingMemorandum (including, without limitation, financial statements) and allamendments and supplements to any of them; (iii) the issuance, transferand delivery of the Initial Notes and the Guarantees thereof to the InitialPurchasers; (iv) the registration or qualification of the Notes and theGuarantees thereof for offer and sale under the securities or Blue Sky laws ofthe several states (including, without limitation, filing fees, the cost ofprinting and mailing a preliminary and final Blue Sky memorandum, and thereasonable fees and disbursements of counsel to the Initial Purchasers relatingto such registration or qualification); (v) the delivery (includingpostage, air freight charges and charges for counting and packaging) of suchcopies of each Preliminary Offering Memorandum, the Offering Memorandum and allamendments or supplements to any of them as may be requested for use inconnection with the offering and sale of the Notes and the Exempt Resales;(vi) the preparation, printing, authentication, issuance and delivery ofcertificates for the Notes, including any stamp taxes in connection with theoriginal issuance and sale of the Notes; (vii) the fees, disbursements andexpenses of the Company’s and the Guarantor’s counsel (including local andspecial counsel, if any) and accountants, (viii) all fees and expenses(including fees and expenses of counsel) of the Company and the Guarantor inconnection with the approval of the Notes by DTC for “book-entry” transfer;(ix) any fees charged by investment rating agencies for the rating of theNotes; (x) the fees and expenses of the Trustee and its counsel;(xi) all expenses incurred in connection with the performance by theCompany and the Guarantor of their other obligations under this

 

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Agreement and the otherOffering Documents; (xii) the transportation and other “roadshow” expensesincurred by or on behalf of the Company representatives in connection withpresentations to and related communications with prospective purchasers of theNotes; and (xiii) all expenses and listing fees incurred in connectionwith the application for quotation of the Notes on the PORTAL Market.

#  

# 8.                                       Indemnification.

#  

###### (a)                                  TheCompany and the Guarantor, jointly and severally, shall indemnify and holdharmless (i) each Initial Purchaser, (ii) each person, if any, whocontrols an Initial Purchaser within the meaning of Section 15 of the Actor Section 20(a) of the Exchange Act, and (iii) the respectiveofficers, directors, partners, employees, representatives and agents of theInitial Purchasers or any controlling person, from and against any and alllosses, liabilities, claims, damages and expenses as incurred (including butnot limited to attorneys’ fees and other expenses incurred in investigating,preparing or defending against any investigation or litigation, commenced orthreatened, and amounts paid in settlement of any claim or litigation), jointor several, to which they or any of them may become subject under the Act, theExchange Act or otherwise, insofar as such losses, liabilities, claims, damagesor expenses (or actions in respect thereof) arise out of or are based upon (A)any untrue statement or alleged untrue statement of a material fact containedin the Preliminary Offering Memorandum or the Offering Memorandum, or in anysupplement thereto or amendment thereof, or (B) the omission or allegedomission to state in the Preliminary Offering Memorandum or the OfferingMemorandum, or in any supplement thereto or amendment thereof, a material factrequired to be stated therein or necessary to make the statements therein, inlight of the circumstances under which they were made, not misleading; *provided*,*however*,that neither the Company nor the Guarantor will be liable in any such case tothe extent, but only to the extent, that any such loss, liability, claim,damage or expense arises out of or is based upon (i) the gross negligence orwillful misconduct of such Initial Purchaser as determined in a final judgmentby a court of competent jurisdiction or (ii) any such untrue statement oralleged untrue statement or omission or alleged omission made therein inreliance upon and in conformity with written information relating to theInitial Purchasers furnished to the Company and the Guarantor by or on behalfof the Initial Purchasers expressly for use therein.  The parties acknowledge and agree that such information providedby or on behalf of the Initial Purchasers consists solely of the materialidentified in Section 11 hereof. This indemnity agreement will be in addition to any liability that theCompany and the Guarantor may otherwise have, including under this Agreement.

######  

###### (b)                                 EachInitial Purchaser agrees, severally and not jointly, to indemnify and holdharmless (i) the Company and the Guarantor, (ii) each person, if any,who controls the Company or the Guarantor within the meaning of Section 15of the Act or Section 20(a) of the Exchange Act, and (iii) theofficers, directors, partners, employees, representatives and agents of theCompany and the Guarantor, against any and all losses, liabilities, claims,damages and expenses as incurred (including but not limited to attorneys’ feesand other expenses incurred in investigating, preparing or defending againstany investigation or litigation, commenced or threatened, and amounts paid insettlement of any claim or litigation), joint or several, to which they or anyof them may become subject under the Act, the Exchange Act or otherwise,insofar as such losses, liabilities, claims, damages or expenses (or actions inrespect thereof) arise out of or are based upon any untrue statement or allegeduntrue statement of a material fact contained in the 

 

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Preliminary OfferingMemorandum or the Offering Memorandum, or in any amendment thereof orsupplement thereto, or arise out of or are based upon the omission or allegedomission to state therein a material fact required to be stated therein ornecessary to make the statements therein, in light of the circumstances underwhich they were made, not misleading, in each case to the extent, but only tothe extent, that any such loss, liability, claim, damage or expense arises outof or is based upon (i)  the grossnegligence or willful misconduct of such Initial Purchaser as determined in afinal judgment by a court of competent jurisdiction or (ii) any untruestatement or alleged untrue statement or omission or alleged omission madetherein in reliance upon and in conformity with written information relating tosuch Initial Purchaser furnished to the Company and the Guarantor by or onbehalf of such Initial Purchaser expressly for use therein; *provided*,*however*,that in no case shall any Initial Purchaser be liable or responsible for anyamount in excess of the discounts and commissions received by such InitialPurchaser.  The parties acknowledge andagree that such information provided by or on behalf of the Initial Purchasersconsists solely of the material identified in Section 11******hereof.** **Thisindemnity will be in addition to any liability that the Initial Purchasers mayotherwise have, including under this Agreement.

######  

###### (c)                                  Promptlyafter receipt by an indemnified party under subsection (a) or (b) above ofnotice of the commencement or threat of any action, such indemnified partyshall, if a claim in respect thereof is to be made against the indemnifyingparty under such subsection, notify each party against whom indemnification isto be sought in writing of the commencement or threat thereof (*provided* that the failure so to notify anindemnifying party shall relieve it from any liability that it may have underthis Section 8 solely to the extent that such failure to provide noticeforfeits or materially prejudices any defense otherwise available to suchindemnifying party).  In case any suchaction is, or is threatened to be, brought against any indemnified party, andit notifies an indemnifying party of the commencement or threat thereof, theindemnifying party will be entitled to participate, at its own expense in thedefense of such action, and to the extent it may elect by written noticedelivered to the indemnified party promptly after receiving the aforesaidnotice from such indemnified party, to assume the defense thereof with counselreasonably satisfactory to such indemnified party; *provided*, *however*,that counsel to the indemnifying party shall not (except with the writtenconsent of the indemnified party) also be counsel to the indemnifiedparty.  Notwithstanding the foregoing,the indemnified party or parties shall have the right to participate in suchdefense and to employ its or their own counsel in any such case, but the feesand expenses of such counsel shall be at the expense of such indemnified partyor parties unless (i) the employment of such counsel has been authorized inwriting by one of the indemnifying parties in connection with the defense ofsuch action, (ii) the indemnifying parties have not employed counsel totake charge of the defense of such action within a reasonable time after noticeof commencement of the action, (iii) the indemnifying party does notdiligently defend the action after assumption of the defense, or (iv) the namedparties to any such action (including impleaded parties) include both theindemnified party and the indemnifying party and the indemnified party orparties has reasonably concluded that there may be defenses available to it orthem that are different from or additional to those available to one or all ofthe indemnifying parties (in which case the indemnifying party or parties shallnot have the right to direct the defense of such action on behalf of theindemnified party or parties), in any of which events such fees and expenses ofcounsel shall be borne by the indemnifying parties.  In any such case, the indemnifying party shall not, in connectionwith any one action or separate but substantially similar or related actions inthe same jurisdiction arising out of the same general allegations orcircumstances, be liable for the fees and expenses of more than one separatefirm of

 

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attorneys (in addition toany local counsel) for all indemnified parties and all such fees and expensesshall be reimbursed as they are incurred. Such firm shall be designated in writing by a majority of the InitialPurchasers, in the case of the parties indemnified pursuant toSection 8(a), and by the Company and Guarantor(s), in the case of partiesindemnified pursuant to section 8(b). No indemnifying party shall, without the prior written consent of theindemnified parties, effect any settlement or compromise of, or consent to theentry of judgment with respect to, any pending or threatened claim,investigation, action or proceeding in respect of which indemnity orcontribution may be or could have been sought by an indemnified party underthis Section 8 or Section 9 hereof (whether or not the indemnifiedparty is an actual or potential party thereto), unless (x) suchsettlement, compromise or judgment (1) includes an unconditional releaseof the indemnified party from all liability arising out of such claim,investigation, action or proceeding and (2) does not include a statementas to or an admission of fault, culpability or any failure to act, by or onbehalf of the indemnified party, and (y) the indemnifying party confirmsin writing its indemnification obligations hereunder with respect to suchsettlement, compromise or judgment.

######  

# 9.                                       Contribution.  In order to provide for contribution incircumstances in which the indemnification provided for in Section 8 isfor any reason held to be unavailable from an indemnifying party or isinsufficient to hold harmless a party indemnified thereunder, the Company andthe Guarantor, on the one hand, and the Initial Purchasers, on the other hand,shall contribute to the aggregate losses, liabilities, claims, damages andexpenses of the nature contemplated by such indemnification provision(including any investigation, legal and other expenses incurred in connectionwith, and any amount paid in settlement of, any action, suit or proceeding orany claims asserted, but after deducting in the case of losses, liabilities,claims, damages and expenses suffered by the Company or the Guarantor, anycontribution received by the Company and the Guarantor from persons, other thanthe Initial Purchasers, who may also be liable for contribution, includingpersons who control the Company or the Guarantor within the meaning ofSection 15 of the Act or Section 20(a) of the Exchange Act) to whichthe Company, the Guarantor and the Initial Purchasers may be subject, in suchproportion as is appropriate to reflect the relative benefits received by theCompany and the Guarantor, on the one hand, and the Initial Purchasers, on theother hand, from the offering of the Initial Notes or, if such allocation isnot permitted by applicable law or indemnification is not available as a resultof the indemnifying party’s not having received notice as provided inSection 8, in such proportion as is appropriate to reflect not only therelative benefits referred to above but also the relative fault of the Companyand the Guarantor, on the one hand, and the Initial Purchasers, on the otherhand, in connection with the statements or omissions that resulted in suchlosses, liabilities, claims, damages or expenses, as well as any other relevantequitable considerations.  The relativebenefits received by the Company and the Guarantor, on the one hand, and theInitial Purchasers, on the other hand, shall be deemed to be in the sameproportion as (i) the total proceeds from the offering of the InitialNotes (net of discounts and commissions but before deducting expenses) receivedby the Company and the Guarantor bear to (ii) the discounts andcommissions received by the Initial Purchasers, respectively.  The relative fault of the Company and theGuarantor, on the one hand, and of the Initial Purchasers, on the other hand,shall be determined by reference to, among other things, whether the untrue oralleged untrue statement of a material fact or the omission or alleged omissionto state a material fact relates to information supplied by the Company, theGuarantor or any Initial Purchaser and the parties’ relative intent, knowledge,access to information and opportunity to correct or prevent such statement oromission.  The Company, the Guarantorand

 

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the Initial Purchasersagree that it would not be just and equitable if contribution pursuant to thisSection 9 were determined by *pro rata* allocation (even if the InitialPurchasers were treated as one entity for such purpose) or by any other methodof allocation that does not take into account the equitable considerationsreferred to above.  The aggregate amountof losses, liabilities, claims, damages and expenses incurred by an indemnifiedparty and referred to above in this Section 9 shall be deemed to includeany legal or other expenses reasonably incurred by such indemnified party ininvestigating, preparing or defending against any litigation, or any investigationor proceeding by any judicial, regulatory, administrative or other legal orgovernmental agency or body, commenced or threatened, or any claim whatsoeverbased upon any such untrue or alleged untrue statement or omission or allegedomission.  Notwithstanding theprovisions of this Section 9, (i) in no case shall any InitialPurchaser be required to contribute any amount in excess of the amount by whichthe discounts and commissions applicable to the Initial Notes purchased by suchInitial Purchaser pursuant to this Agreement exceeds the amount of damages thatthe Initial Purchasers has otherwise been required to pay by reason of anyuntrue or alleged untrue statement or omission or alleged omission and(ii) no person guilty of fraudulent misrepresentation (within the meaningof Section 11(f) of the Act) shall be entitled to contribution from anyperson who was not guilty of such fraudulent misrepresentation.  For purposes of this Section 9,(A) each person, if any, who controls any Initial Purchaser within the meaningof Section 15 of the Act or Section 20(a) of the Exchange Act and(B) the respective officers, directors, partners, employees,representatives and agents of such Initial Purchaser or any controlling personshall have the same rights to contribution as such Initial Purchaser, and(A) each person, if any, who controls the Company or any Guarantor withinthe meaning of Section 15 of the Act or Section 20(a) of the ExchangeAct and (B) the respective officers, directors, partners, employees,representatives and agents of the Company and the Guarantor shall have the samerights to contribution as the Company and the Guarantor, subject in each caseto clauses (i) and (ii) of this Section 9.  Any party entitled to contribution will, promptly after receiptof notice of commencement of any action, suit or proceeding against such partyin respect of which a claim for contribution may be made against another partyor parties under this Section 9, notify such party or parties from whomcontribution may be sought, but the failure to so notify such party or partiesshall not relieve the party or parties from whom contribution may be soughtfrom any obligation it or they may have under this Section 9 orotherwise.  No party shall be liable forcontribution with respect to any action or claim settled without its priorwritten consent; *provided* that such written consent was not unreasonablywithheld.The Initial Purchasers’ obligations to contribute pursuantto this Section 9 are several in proportion to the respective principalamount of Initial Notes purchased by each of the Initial Purchasers hereunderand not joint.

#  

# 10.                                 Conditionsof Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase and pay for theInitial Notes, as provided herein, are subject to the absence from anycertificates, opinions, written statements or letters furnished to the InitialPurchasers pursuant to this Section 10 of any misstatement or omissionsand to the satisfaction of the following additional conditions unless waived inwriting by the Initial Purchasers:

#  

###### (a)                                  Allof the representations and warranties of the Company and the Guarantorcontained in this Agreement shall be true and correct on the date hereof and onthe Closing Date with the same force and effect as if made on and as of thedate hereof and the Closing Date, respectively.  The Company and the Guarantor shall have performed or complied

 

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with all of theagreements and satisfied all conditions on their respective parts to beperformed or complied with or satisfied hereunder on or prior to the ClosingDate.

######  

###### (b)                                 TheOffering Memorandum shall have been printed and copies distributed to theInitial Purchasers not later than 10:00 a.m., New York City time, on the dayfollowing the date of this Agreement or at such later date and time as to whichthe Initial Purchasers may agree, and no stop order or order suspending thequalification or exemption from qualification of the Initial Notes or theGuarantees thereof in any jurisdiction referred to in Section 6(e) shallhave been issued, and no proceeding for that purpose shall have been commencedor shall be pending or threatened.

######  

###### (c)                                  Noneof the issuance and sale of the Securities pursuant to this Agreement or any ofthe transactions contemplated by any of the other Offering Documents shall beenjoined (temporarily or permanently) and no restraining order or otherinjunctive order shall have been issued; and there shall not have been anyaction, and there shall not have been any law, rule, regulation, ordinance,directive, judgment, decree or order enacted, adopted, issued or threatenedagainst the Company, its subsidiary or the Guarantor, or against the InitialPurchasers relating to the issuance of the Securities or the InitialPurchasers’ activities in connection therewith or any other transactionscontemplated by this Agreement or the Offering Memorandum, or the otherOffering Documents.  No action, suit orproceeding shall have been commenced and be pending against or directlyaffecting or, to the best knowledge of the Company and the Guarantor,threatened against, the Company, its subsidiary or the Guarantor before anycourt or arbitrator or any regulatory, administrative or any governmental bodyor agency, foreign or domestic, (including, without limitation, the FCC) that,if adversely determined, could, individually or in the aggregate, reasonably beexpected to result in a Material Adverse Effect; and no stop order shall havebeen issued preventing the use of the Offering Memorandum, or any amendment orsupplement thereto.

######  

###### (d)                                 Subsequentto the date of this Agreement and since the date of the most recent financialstatements in the Offering Memorandum (exclusive of any amendment or supplementthereto after the date hereof), (i) there shall not have occurred anychange, or any development involving a prospective change, in or affecting thegeneral affairs, management, business, condition (financial or other),properties, prospects, results of operations, capital stock, or long-term debt,or a material increase in the short-term debt, of the Company, its subsidiaryor the Guarantor, not contemplated by the Offering Memorandum that is, in thejudgment of the Initial Purchasers, so material and adverse as to make itimpracticable or inadvisable to proceed with the offering of the Securities onthe terms and in the manner contemplated by the Offering Documents,(ii) no dividend or distribution of any kind shall have been declared,paid or made by the Company, its subsidiary or the Guarantor on any class ofits capital stock, (iii) neither the Company, its subsidiary or theGuarantor shall have incurred any liability or obligation, direct orcontingent, that is material, individually or in the aggregate, to the Company,its subsidiary or the Guarantor, taken as a whole, and that is required to bedisclosed on a balance sheet or notes thereto in accordance with generallyaccepted accounting principles and is not disclosed on the latest balance sheetor notes thereto included in the Offering Memorandum, and (iv) there shallnot have occurred any event or development relating to or involving theCompany, its subsidiary or the Guarantor, or any of their respective officersor directors that makes any statement made in the Offering Memorandum untrue orthat, in the opinion of the Company, the Guarantor and their

 

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counsel or the InitialPurchasers and its counsel, require the making of any addition to or change inthe Offering Memorandum in order to state a material fact required by anyapplicable law, rule or regulation to be stated therein or necessary in orderto make the statements made therein, in the light of the circumstances underwhich it was made, not misleading.

######  

###### (e)                                  Atthe Closing Date and after giving effect to the consummation of thetransactions contemplated by the Offering Memorandum and the OfferingDocuments, there exists no Default or Event of Default (as defined in theIndenture).

######  

###### (f)                                    TheInitial Purchasers shall have received certificates, dated the Closing Date,signed by the chief executive officer and the chief financial officer of eachof the Company and the Guarantor (in their respective capacities as such), inform and substance satisfactory to the Initial Purchasers, confirming, as ofthe Closing Date, the matters set forth in paragraphs (a), (b), (c), (d) and(e) of this Section 10 and that, as of the Closing Date, the obligationsof the Company and the Guarantor, as the case may be, to be performed hereunderon or prior thereto have been duly performed.

######  

###### (g)                                 TheInitial Purchasers shall have received on the Closing Date a corporate andregulatory opinion, dated the Closing Date, in form and substance satisfactoryto the Initial Purchasers and Latham & Watkins LLP, counsel for the InitialPurchasers, of Greenberg Traurig P.A. counsel for the Company and theGuarantor, to the effect set forth in Exhibit A hereto.

######  

###### (h)                                 Atthe time Guarantor’s audit has been completed by PricewaterhouseCoopers LLP andat the Closing Date, the Initial Purchasers shall have received fromPricewaterhouseCoopers LLP, independent public accountants for the Company andthe Guarantor, dated as of the date of such completion and as of the ClosingDate, customary “comfort” letters addressed to the Initial Purchasers and inform and substance satisfactory to the Initial Purchasers and Latham &Watkins LLP, counsel for the Initial Purchasers, with respect to the financialstatements and certain financial information of the Company, its subsidiary andthe Guarantor contained in the Offering Memorandum.

######  

###### (i)                                     TheInitial Purchasers shall have received an opinion, dated the Closing Date, inform and substance reasonably satisfactory to the Initial Purchasers, of Latham& Watkins LLP, counsel for the Initial Purchasers, relating to thisAgreement and such other related matters as the Initial Purchasers may require.

######  

###### (j)                                     Latham& Watkins LLP, counsel to the Initial Purchasers, shall have been furnishedwith such documents, in addition to those set forth above, as they mayreasonably require for the purpose of enabling them to review or pass upon thematters referred to in this Section 10 and in order to evidence theaccuracy, completeness or satisfaction in all material respects of any of therepresentations, warranties or conditions herein contained.

######  

###### (k)                                  TheCompany and the Guarantor shall have furnished or caused to be furnished to theInitial Purchasers such further information, certificates and documents as theInitial Purchasers may have reasonably requested.

######  

###### (l)                                     TheCompany, the Guarantor and the Trustee shall have entered into the Indenture,and the Initial Purchasers shall have received counterparts, conformed asexecuted,

 

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thereof, and the InitialNotes and the Guarantees thereof shall have been duly executed and delivered bythe Company and the Guarantor, and the Initial Notes shall have been dulyauthenticated by the Trustee.

######  

###### (m)                               TheCompany, the Guarantor and the Initial Purchasers shall have entered into theRegistration Rights Agreement, and the Initial Purchasers shall have receivedcounterparts, conformed as executed, thereof, and such agreement shall be infull force and effect.

######  

###### (n)                                 Atthe time the Guarantor’s audit has been completed by PricewaterhouseCoopersLLP, the Initial Purchasers shall have received a certificate, substantially inthe form of Exhibit B hereto, dated the date of the Offering Memorandum,of the Chief Financial Officer of the Company.

######  

###### (o)                                 Onor after the date hereof, (i) there shall not have occurred anydowngrading, suspension or withdrawal of, nor shall there have been anyannouncement of any potential or intended downgrading, suspension or withdrawalof, or of any review (or of any potential or intended review) for a possibledowngrading, or with negative implications, or direction not determined of, anyrating of the Company or the Guarantor or any securities of the Company or theGuarantor (including, without limitation, the placing of any of the foregoingratings on credit watch with negative or developing implications or underreview with an uncertain direction) by any “nationally recognized statisticalrating organization” as such term is defined for purposes of Rule 436(g)(2)under the Act, (ii) there shall not have occurred any change, nor shallany notice have been given of any potential or intended change, in the outlookfor any rating of the Company or the Guarantor or any securities of the Companyor the Guarantor by any such rating organization, and (iii) no such ratingorganization shall have given notice that it has assigned (or is consideringassigning) a lower rating to the Notes than that on which the Notes weremarketed.

######  

###### (p)                                 TheNotes shall have been approved for trading on PORTAL.

######  

###### (q)                                 Eachof the Offering Documents and each other agreement or instrument executed inconnection with the transactions contemplated thereby shall be reasonablysatisfactory in form and substance to the Initial Purchasers and shall havebeen executed and delivered by all the respective parties thereto and shall bein full force and effect.

######  

###### (r)                                    Allopinions, certificates, letters, schedules, documents or instruments requiredby this Section 10 to be delivered by the Company and the Guarantor willbe in compliance with the provisions hereof only if they are reasonablysatisfactory in form and substance to the Initial Purchasers and counsel to theInitial Purchasers.  The Company and theGuarantor shall furnish the Initial Purchasers such conformed copies of suchopinions, certificates, letters, schedules, documents and instruments in suchquantities as the Initial Purchasers shall reasonably request.

######  

###### (s)                                  Onor prior to the Closing Date, or in the case of clauses (i)(A) and (iii) below,simultaneously with the closing of the Offering, the Company shall (i) either(A) use a portion of the net proceeds from the sale of the Initial Notes torepay the Credit Agreement as described in the Offering Memorandum under thecaption “Use of Proceeds” or (B) have obtained

 

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a waiver or consent, inform and substance reasonably satisfactory to the Initial Purchasers, from therequisite lenders under the Credit Agreement permitting the Offering; (ii) havedelivered to the holders of the Company’s existing 14% Series B Senior DiscountNotes due 2008 irrevocable notice of redemption of such notes in accordancewith the terms of the note purchase agreement governing such notes; (iii) use aportion of the net proceeds from the sale of the Initial Notes to repurchasethe Company’s 14% Senior Discount Notes due 2010 from Bear, Stearns & Co.Inc. as described in the Offering Memorandum under the caption “Use ofProceeds”; and (iv) provide evidence to the Initial Purchasers reasonablysatisfactory to the Initial Purchasers that the Company has completed theactions described in clauses (i), (ii) and (iii) hereof.

######  

# 11.                                 InitialPurchasers’ Information.  TheCompany and the Guarantor acknowledge that the statements with respect to theoffering of the Initial Notes set forth in the first sentence of the fourthparagraph, the fifth sentence of the seventh paragraph and the eighth paragraphunder the heading “Plan of Distribution” in the Offering Memorandum constitutethe only written information relating to any of the Initial Purchasersfurnished to the Company and the Guarantor by or on behalf of the InitialPurchasers expressly for use in the Offering Memorandum, for purposes ofSections 2(a), 8(a) and 8(b) hereof.

#  

# 12.                                 Offeringof Securities; Restrictions on Transfer. Each Initial Purchaser agrees with the Company and each Guarantor as toitself only that (i) it has not and will not solicit offers for, or offeror sell, the Securities by any form of general solicitation or general advertising(as those terms are used in Regulation D under the Act) or in any mannerinvolving a public offering within the meaning of Section 4(2) of the Act;and (ii) it has and will solicit offers for the Securities only from, andwill offer the Securities only to, persons within the United States whom suchInitial Purchaser reasonably believes to be QIBs or, if any such person isbuying for one or more institutional accounts for which such person is actingas fiduciary or agent, only when such person has represented to such InitialPurchaser that each such account is a QIB, to whom notice has been given thatsuch sale or delivery is being made in reliance on Rule 144A and, in each case,in transactions under Rule 144A.

#  

# 13.                                 Survivalof Representations and Agreements. The respective representations, warranties, covenants, agreementsindemnities and other statements of the Company and the Guarantor, theirrespective officers and the Initial Purchasers set forth in this Agreement ormade by or on behalf of them, respectively pursuant to this Agreement shallremain operative and in full force and effect regardless of (i) anyinvestigation made by or on behalf of the Company, the Guarantor, any of theirrespective officers of directors, the Initial Purchasers or any controllingperson thereof referred to in Sections 8 and 9 hereof, and (ii) deliveryof and payment for the Initial Notes to and by the Initial Purchasers, andshall be binding upon and shall inure to the benefit of, any successors,assigns, heirs, personal representatives of the Company, the Guarantor, theInitial Purchasers and the indemnified parties referred to in Section 8hereof.  The respective representations,covenants, agreements, indemnities and other statements set forth in Sections7, 8, 9, 13 and 14 shall survive the termination of this Agreement.

#  

# 14.                                 EffectiveDate of Agreement; Termination.

#  

###### (a)                                  ThisAgreement shall become effective upon execution and delivery of a counterparthereof by each of the parties hereto.

 

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###### (b)                                 ThisAgreement may be terminated in the sole discretion of the Initial Purchasers bynotice to the Company from the Initial Purchasers, without liability (otherthan with respect to Sections 8 and 9) on the Initial Purchasers’ part to theCompany or the Guarantor in the event that the Company or the Guarantor hasfailed, refused or been unable to perform or satisfy all conditions on theirrespective parts to be performed or satisfied hereunder on or prior to theClosing Date, any other condition to the obligations of the Initial Purchasershereunder as provided in Section 10 is not fulfilled when and as required,or if:

######  

(i)                                     inthe reasonable judgment of the Initial Purchasers, any material adverse changehas occurred since the respective dates as of which information is given in theOffering Memorandum (or, if the Offering Memorandum is not in existence, themost recent Preliminary Offering Memorandum) in the condition (financial orotherwise), business, properties, assets, liabilities, prospects, net worth,results of operations or cash flows of the Company, its subsidiary and theGuarantor, taken as a whole, other than as set forth in the OfferingMemorandum;

 

(ii)                                  anydomestic or international event or act or occurrence has materially disrupted,or in the opinion of the Initial Purchasers will in the immediate futurematerially disrupt, the market for the Company’s or the Guarantor’s securitiesor for securities in general;

 

(iii)                               trading in securitiesgenerally on the New York Stock Exchange, or the Nasdaq National Market, hasbeen suspended or made subject to material limitations, or minimum or maximumprices for trading has been fixed, or maximum ranges for prices for securitieshas been required, on the New York Stock Exchange or the Nasdaq NationalMarket, or by order of the Commission or other regulatory body or governmentalauthority having jurisdiction;

 

(iv)                              abanking moratorium has been declared by any federal or state authority, amoratorium in foreign exchange trading by major international banks or personshas been declared, or if any material disruption in commercial banking orsecurities settlement or clearance services has occurred; or

 

(v)                                 (A) therehas occurred any outbreak or escalation of hostilities or acts of terrorisminvolving the United States on or after the date hereof, or there is adeclaration of a national emergency or war by the United States, or(B) there has been any other calamity or crisis or any change inpolitical, financial or economic conditions if the effect of any such event in(A) or (B), in the Initial Purchasers’ judgment, makes it inadvisable orimpracticable to proceed with the offering, sale and delivery of theSecurities, on the terms and in the manner contemplated hereby and in the OfferingMemorandum; or

 

(vi)                              anydebt securities of the Company or any Guarantor has been downgraded or placedon any “watch list” for possible downgrading by any “nationally recognizedstatistical rating organization” as defined for purposes of Rule 436(g) underthe Act.

 

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###### (c)                                  Anynotice of termination pursuant to this Section 14 shall be by telephone orfacsimile and, in either case, confirmed in writing by letter.

######  

###### (d)                                 Ifthis Agreement is terminated pursuant to any of the provisions hereof, or ifthe sale of the Initial Notes provided for herein is not consummated becauseany condition to the obligations of the Initial Purchasers set forth herein isnot satisfied or because of any refusal, inability or failure on the part ofthe Company or the Guarantor to perform any agreement herein or comply with anyprovision hereof, the Company and the Guarantor shall, subject to writtendemand by the Initial Purchasers, reimburse the Initial Purchasers for all out-of-pocketexpenses (including the fees and expenses of the Initial Purchasers’ counsel),incurred by the Initial Purchasers in connection herewith.

######  

###### (e)                                  Ifon the Closing Date any one or more of the Initial Purchasers fails or refusesto purchase the Initial Notes which it or they have agreed to purchasehereunder on such date and the aggregate principal amount of the Initial Notesthat such defaulting Initial Purchaser or Initial Purchasers, as the case maybe, agreed but failed or refused to purchase is not more than one-tenth of theaggregate principal amount of the Initial Notes to be purchased on such date byall Initial Purchasers, each non-defaulting Initial Purchaser shall beobligated severally, in the proportion that the principal amount of the InitialNotes set forth opposite its name in Schedule I bears to theaggregate principal amount of the Initial Notes that all the non-defaultingInitial Purchasers, as the case may be, have agreed to purchase, or in suchother proportion as Bear, Stearns & Co. Inc. (“***Bear Stearns***”) may specify, to purchase theInitial Notes which such defaulting Initial Purchaser or Initial Purchasers, asthe case may be, agreed but failed or refused to purchase on such date; *provided*that in no event shall the aggregate principal amount of the Initial Notes thatany Initial Purchaser has agreed to purchase pursuant to Section 4 hereofbe increased pursuant to this Section 14 by an amount in excess ofone-ninth of such principal amount of the Initial Notes without the written consentof such Initial Purchaser.  If on theClosing Date any Initial Purchaser or Initial Purchasers fails or refuses topurchase the Initial Notes and the aggregate principal amount of the InitialNotes with respect to which such default occurs is more than one-tenth of theaggregate principal amount of the Initial Notes to be purchased by all InitialPurchasers and arrangements satisfactory to the Initial Purchasers and theCompany for purchase of such the Initial Notes are not made within 48 hoursafter such default, this Agreement will terminate without liability on the partof any non-defaulting Initial Purchaser and the Company.  In any such case that does not result intermination of this Agreement, either Bear Stearns or the Company shall havethe right to postpone the Closing Date, but in no event for longer than sevendays, in order that the required changes, if any, in the Offering Memorandum orany other documents or arrangements may be effected.  Any action taken under this paragraph shall not relieve anydefaulting Initial Purchaser from liability in respect of any default of anysuch Initial Purchaser under this Agreement.

######  

# 15.                                 Notices.  All communications hereunder shall be inwriting and, if sent to any Initial Purchaser, shall be hand-delivered,couriered by next-day air courier or faxed and confirmed in writing to suchInitial Purchaser at Bear, Stearns & Co. Inc., 383 Madison Avenue, NewYork, NY 10179, Attention: Lawrence B. Alletto, Debt Capital Markets, and witha copy to Latham & Watkins LLP, 885 Third Avenue, Suite 1000, New York, NewYork 10022, Attention: Ian Blumenstein, Esq. If sent to the Company or the Guarantor, shall be hand-delivered,couriered by next-day air courier or faxed and confirmed in writing toUbiquiTel Operating 

 

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Company, One West ElmStreet, Suite 400, Conshohocken, Pennsylvania 19428 Attention:  Patricia E. Knese, Vice President andGeneral Counsel, and with a copy to Greenberg Traurig, LLP, 1221 BrickellAvenue, Miami, Florida 33131 Attention: Andrew E. Balog, Esq.

#  

# 16.                                 Successors.  This Agreement shall inure to the benefitof, and shall be binding upon, the Initial Purchasers, the Company, theGuarantor and their respective successors, legal representatives and assigns,and nothing expressed or mentioned in this Agreement is intended or shall beconstrued to give any other person any legal or equitable right, remedy orclaim under or in respect of, or by virtue of, this Agreement or any provisionherein contained; this Agreement and all conditions and provisions hereof beingintended to be and being for the sole and exclusive benefit of such persons andfor the benefit of no other person except that (i) the indemnities of theCompany and the Guarantor contained in Section 8 of this Agreement shallalso be for the benefit of their respective controlling persons and officers,directors, partners, employees, representatives and agents referred to inSections 8 and 9, and (ii) the indemnities of the Initial Purchaserscontained in Section 8 of this Agreement shall also be for the benefit oftheir respective controlling persons and officers, directors, partners,employees, representatives and agents referred to in Sections 8 and 9.  No purchaser of Initial Notes from theInitial Purchasers will be deemed a successor, legal representative or assignbecause of such purchase.

#  

# 17.                                 NoWaiver; Modifications in Writing. No failure or delay on the part of the Company, the Guarantor or theInitial Purchasers in exercising any right, power or remedy hereunder shalloperate as a waiver thereof, nor shall any single or partial exercise of anysuch right, power or remedy preclude any other or further exercise thereof orthe exercise of any other right, power or remedy.  The remedies provided for herein are cumulative and are notexclusive of any remedies that may be available to the Company, the Guarantoror the Initial Purchasers at law or in equity or otherwise.  No waiver of or consent to any departure bythe Company, the Guarantor or the Initial Purchasers from any provision of thisAgreement shall be effective unless signed in writing by the party entitled tothe benefit thereof; *provided*that notice of any such waiver shall be given to each party hereto as set forthabove.  Except as otherwise providedherein, no amendment, modification or termination of any provision of thisAgreement shall be effective unless signed in writing by or on behalf of theCompany, the Guarantor and the Initial Purchasers.  Any amendment, supplement or modification of or to any provisionof this Agreement, any waiver of any provision of this Agreement, and anyconsent to any departure by the Company, the Guarantor or the InitialPurchasers from the terms of any provision of this Agreement shall be effectiveonly in the specific instance and for the specific purpose for which made orgiven.  Except where notice isspecifically required by this Agreement, no notice to or demand on the Companyor the Guarantor in any case shall entitle the Company or the Guarantor to anyother or further notice or demand in similar or other circumstances.

#  

# 18.                                 EntireAgreement.  This Agreementconstitutes the entire agreement among the parties hereto and supersedes allprior agreements, understandings and arrangements, oral or written, among theparties hereto with respect to the subject matter hereof.

#  

# 19.                                 ApplicableLaw.  THE VALIDITY ANDINTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREINSHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THESTATE OF NEW YORK.  TIME IS OF THEESSENCE IN THIS AGREEMENT.

 

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# 20.                                 Captions.  The captions included in this Agreement areincluded solely for convenience of reference and are not to be considered apart of this Agreement.

#  

# 21.                                 Counterparts.  This Agreement may be executed in variouscounterparts, which together shall constitute one and the same instrument.

#  

*[SignaturePage Follows]*

 

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If the foregoingcorrectly sets forth the understanding among the Initial Purchasers, theCompany and the Guarantor, please so indicate in the space provided below forthat purpose, whereupon this letter shall constitute a binding agreement amongus.

 
|   | Very truly  yours,                           |
|--------|----------------------------------------------|
|   |                                         |
|   | UBIQUITEL  OPERATING COMPANY                 |
|   |                                         |
|   |                                         |
|   | By:                                          |   |   |
|   | Name: Donald A. Harris                       |
|   | Title: President and Chief Executive Officer |
|   |                                         |
|   |                                         |
|   | UBIQUITEL INC.                               |
|   |                                         |
|   |                                         |
|   | By:                                          |   |   |
|   | Name: Donald A. Harris                       |
|   | Title: President and Chief Executive Officer |

 

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Accepted and agreed to asofthe date first above written:

 
| BEAR, STEARNS & CO.  INC.   |
|---------------------------------|
|                            |   |
|                            |   |
| By:                             |   |   |
|                            | Name: |   |
|                            | Title: |   |
|                            |   |   |
|                            |   |   |
| CITIGROUP GLOBAL  MARKETS INC.  |   |
|                            |   |   |
|                            |   |   |
| By:                             |   |   |
|                            | Name: |   |
|                            | Title: |   |
|                            |   |   |
|                            |   |   |
| BANC OF AMERICA  SECURITIES LLC |   |
|                            |   |   |
|                            |   |   |
| By:                             |   |   |
|                            | Name: |
|                            | Title: |
|                                 |  |  |  |

 

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SCHEDULE I

 

 
| **Initial Purchaser**           |   | **Principal  Amount  of Notes** |        |
|---------------------------------|--------|---------------------------------|-------------|
|                            |   |                            |        |
| Bear,  Stearns & Co. Inc.   |   | $                               | 175,500,000 |   |
|                            |   |                            |        |
| Citigroup  Global Markets Inc.  |   | 67,500,000                      |        |
|                            |   |                            |        |
| Banc  of America Securities LLC |   | 27,000,000                      |        |
|                            |   |                            |        |
| Total                           |   | $                               | 270,000,000 |   |

 

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