Exhibit 99.6
October , 2003
EXCHANGE AGENT AGREEMENT
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
Western Wireless Corporation, a Washington corporation (the
"Company") proposes to make an offer (the "Exchange Offer") to exchange all of
its outstanding 9.250% Senior Notes due 2013 (the "Old Securities") for its
9.250% Senior Notes due 2013 that have been registered under the Securities Act
of 1933, as amended (the "New Securities"). The terms and conditions of the
Exchange Offer as currently contemplated are set forth in a prospectus, dated
___________ (the "Prospectus"), proposed to be distributed to all record holders
of the Old Securities. The Old Securities and the New Securities are
collectively referred to herein as the "Securities".
The Company hereby appoints The Bank of New York to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer, and The Bank
of New York hereby accepts this appointment, subject to the provisions hereof.
References hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company on or
about _____________. The Letter of Transmittal accompanying the Prospectus (or
in the case of book-entry securities, the Automated Tender Offer Program
("ATOP") of the Book-Entry Transfer Facility (as defined below)) is to be used
by the holders of the Old Securities to accept the Exchange Offer and contains
instructions with respect to the delivery of certificates for Old Securities
tendered in connection therewith.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
_________ or on such subsequent date or time to which the Company may extend the
Exchange Offer (the "Expiration Date"). Subject to the terms and conditions set
forth in the Prospectus, the Company expressly reserves the right to extend the
Exchange Offer from time to time and may extend the Exchange Offer by giving
oral (promptly confirmed in writing) or written notice to you before 9:00 a.m.,
New York City time, on the business day following the previously scheduled
Expiration Date.
The Company expressly reserves the right to amend or terminate the
Exchange Offer, and not to accept for exchange any Old Securities not
theretofore accepted for exchange, upon the occurrence of any of the conditions
of the Exchange Offer specified in the Prospectus under the caption "The
Exchange Offer - Conditions to the Exchange Offer." The Company will give oral
(promptly confirmed in writing) or written notice of any amendment, termination
or nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The Exchange
Offer" or as specifically set forth herein; provided, however, that in no way
will your general duty to act in good faith and without gross negligence or
willful misconduct be limited by the foregoing.
2. You will establish a book-entry account with respect to the Old
Securities at The Depository Trust Company (the "Book-Entry Transfer Facility")
for purposes of the Exchange Offer within two business days after the date of
the Prospectus, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may make book-entry delivery of the Old
Securities by causing the Book-Entry Transfer Facility to transfer such Old
Securities into your account in accordance with the Book-Entry Transfer
Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Old Securities (or confirmation of book-entry transfer into
your account at the Book-Entry Transfer Facility) and any other documents
delivered or mailed to you by or for holders of the Old Securities to ascertain
whether: (i) the Letters of Transmittal and any such other documents are duly
executed and properly completed in accordance with instructions set forth
therein; (ii) the Old Securities have otherwise been properly tendered in
compliance with the requirements set forth in the section of the Prospectus
captioned "The Exchange Offer -- Procedures for Tendering" and in the Letter of
Transmittal, (iii) the Old Securities tendered in part are tendered in principal
amounts of $1,000 and integral multiples thereof and, if any Old Securities are
tendered for exchange in part, the untendered principal amount thereof is $1,000
or any integral multiple thereof, and (iv) holders have provided their Tax
Identification Number or required certification. In each case where the Letter
of Transmittal or any other document has been improperly completed or executed
or any of the certificates for Old Securities are
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not in proper form for transfer or some other irregularity in connection with
the acceptance of the Exchange Offer exists, you will endeavor to inform the
presenters of the need for fulfillment of all requirements and to take any other
action as may be reasonably necessary or advisable to cause such irregularity to
be corrected.
4. With the approval of the Chief Executive Officer, President,
Chief Financial Officer, any Vice President or the Secretary of the Company
(such approval, if given orally, to be promptly confirmed in writing) or any
other party designated in writing, by such an officer, you are authorized to
waive any irregularities in connection with any tender of Old Securities
pursuant to the Exchange Offer.
5. At the written request of the Company or its counsel, you shall
notify tendering holders of Old Securities in the event of any extension,
termination or amendment of the Exchange Offer. In the event of any such
termination, you will return all tendered Outstanding Notes to the persons
entitled thereto, at the written request and expense of the Company.
6. Tenders of Old Securities may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer -- Procedures for Tendering", and Old Securities shall be
considered properly tendered to you only when tendered in accordance with the
procedures set forth therein.
Notwithstanding the provisions of this Section 6, Old Securities
which the Chief Executive Officer, President, Chief Financial Officer, any Vice
President or the Secretary of the Company shall approve as having been properly
tendered shall be considered to be properly tendered (such approval, if given
orally, shall be promptly confirmed in writing).
7. You shall advise the Company with respect to any Old Securities
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Old Securities.
8. You shall accept tenders:
(a) in cases where the Old Securities are registered in two or
more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter
of Transmittal) is acting in a fiduciary or a representative capacity only when
proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Old
Securities, provided that customary transfer requirements, including payment of
any applicable transfer taxes, are fulfilled.
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You shall accept partial tenders of Old Securities where so
indicated and as permitted in the Letter of Transmittal and deliver certificates
for Old Securities to the registrar for split-up and return any untendered Old
Securities to the holder (or such other person as may be designated in the
Letter of Transmittal) as promptly as practicable after expiration or
termination of the Exchange Offer.
9. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Company will notify you (such notice, if given orally, to be
promptly confirmed in writing) of its acceptance, promptly after the Expiration
Date, of all Old Securities properly tendered and you, on behalf of the Company,
will exchange such Old Securities for New Securities and cause such Old
Securities to be cancelled. Delivery of New Securities will be made on behalf of
the Company by you at the rate of $1,000 principal amount of New Securities for
each $1,000 principal amount of the corresponding series of Old Securities
tendered promptly after notice (such notice if given orally, to be promptly
confirmed in writing) of acceptance of said Old Securities by the Company;
provided, however, that in all cases, Old Securities tendered pursuant to the
Exchange Offer will be exchanged only after timely receipt by you of
certificates for such Old Securities (or confirmation of book-entry transfer
into your account at the Book-Entry Transfer Facility), a properly completed and
duly executed Letter of Transmittal (or manually signed facsimile thereof) with
any required signature guarantees and any other required documents. You shall
issue New Securities only in denominations of $1,000 or any integral multiple
thereof.
10. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and upon the conditions set forth in the Prospectus
and the Letter of Transmittal, Old Securities tendered pursuant to the Exchange
Offer may be withdrawn at any time prior to the Expiration Date.
11. The Company shall not be required to exchange any Old Securities
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company not to exchange any Old Securities
tendered shall be given (if given orally, to be promptly confirmed in writing)
by the Company to you.
12. If, pursuant to the Exchange Offer, the Company does not accept
for exchange all or part of the Old Securities tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "The Exchange Offer - Conditions to the Exchange Offer" or
otherwise, you shall as soon as practicable after the expiration or termination
of the Exchange Offer return those certificates for unaccepted Old Securities
(or effect appropriate book-entry transfer), together with any related required
documents and the Letters of Transmittal relating thereto that are in your
possession, to the persons who deposited them.
13. All certificates for reissued Old Securities, unaccepted Old
Securities or for New Securities shall be forwarded by first-class mail.
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14. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
15. As Exchange Agent hereunder you:
(a) shall not be liable for any action or omission to act unless
the same constitutes your own gross negligence, willful misconduct or bad faith,
and in no event shall you be liable to a securityholder, the Company or any
third party for special, indirect or consequential damages, or lost profits,
arising in connection with this Agreement;
(b) shall have no duties or obligations other than those
specifically set forth herein or as may be subsequently agreed to in writing
between you and the Company;
(c) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any of
the certificates or the Old Securities represented thereby deposited with you
pursuant to the Exchange Offer, and will not be required to and will make no
representation as to the validity, value or genuineness of the Exchange Offer;
(d) shall not be obligated to take any legal action hereunder
which might in your reasonable judgment involve any expense or liability, unless
you shall have been furnished with indemnity reasonably satisfactory to you;
(e) may conclusively rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter, telegram or
other document or security delivered to you and reasonably believed by you to be
genuine and to have been signed or presented by the proper person or persons;
(f) may reasonably act upon any tender, statement, request,
document, agreement, certificate or other instrument whatsoever not only as to
its due execution and validity and effectiveness of its provisions, but also as
to the truth and accuracy of any information contained therein, which you shall
in good faith believe to be genuine or to have been signed or presented by the
proper person or persons;
(g) may conclusively rely on and shall be protected in acting
upon written or oral instructions from any authorized officer of the Company;
(h) may consult with counsel of your selection with respect to
any questions relating to your duties and responsibilities and the advice or
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by you hereunder
in good faith and in accordance with the advice or opinion of such counsel; and
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(i) shall not advise any person tendering Old Securities pursuant
to the Exchange Offer as to the wisdom of making such tender or as to the market
value or decline or appreciation in market value of any Old Securities.
provided, however, that in no way will your general duty to act in good faith
and without gross negligence or willful misconduct be limited by the foregoing.
16. You shall take such action as may from time to time be requested
by the Company (and such other action as you may reasonably deem appropriate) to
furnish copies of the Prospectus, Letter of Transmittal and the Notice of
Guaranteed Delivery accompanying the Prospectus or such other forms as may be
approved from time to time by the Company, to all persons requesting such
documents and to accept and comply with telephone requests for information
relating to the Exchange Offer, provided that such information shall relate only
to the procedures for accepting (or withdrawing from) the Exchange Offer. The
Company will furnish you with copies of such documents on your request. All
other requests for information relating to the Exchange Offer shall be directed
to the Company, Attention: Xxxxxxx X. Xxxxxxxxxxxx.
17. You shall advise by facsimile transmission Xxxxxxx X.
Xxxxxxxxxxxx, the Senior Vice President, General Counsel and Secretary of the
Company (at the facsimile number (000) 000-0000), and such other person or
persons as the Company may request, daily (and more frequently during the week
immediately preceding the Expiration Date if requested) up to and including the
Expiration Date, as to the number of Old Securities which have been tendered
pursuant to the Exchange Offer and the items received by you pursuant to this
Agreement, separately reporting and giving cumulative totals as to items
properly received and items improperly received. In addition, you will also
inform, and cooperate in making available to, the Company or any such other
person or persons upon oral request made from time to time prior to the
Expiration Date of such other information as they may reasonably request. Such
cooperation shall include, without limitation, the granting by you to the
Company and such person as the Company may request of access to those persons on
your staff who are responsible for receiving tenders, in order to ensure that
immediately prior to the Expiration Date the Company shall have received
information in sufficient detail to enable it to decide whether to extend the
Exchange Offer. You shall prepare a final list of all persons whose tenders were
accepted, the aggregate principal amount of Old Securities tendered, the
aggregate principal amount of Old Securities accepted and deliver said list to
the Company.
18. Letters of Transmittal and Notices of Guaranteed Delivery shall
be stamped by you as to the date and, after the expiration of the Exchange
Offer, the time, of receipt thereof and shall be preserved by you for a period
of time at least equal to the period of time you preserve other records
pertaining to the transfer of securities. You shall dispose of unused Letters of
Transmittal and other surplus materials by returning them to the Company.
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19. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as shall be agreed in writing between the Company
and you. The provisions of this section shall survive the termination of this
Agreement.
20. You hereby acknowledge receipt of the Prospectus and the Letter
of Transmittal. Any inconsistency between this Agreement, on the one hand, and
the Prospectus and the Letter of Transmittal (as they may be amended from time
to time), on the other hand, shall be resolved in favor of the latter two
documents, except with respect to your duties, liabilities and indemnification
as Exchange Agent.
21. Subject to the terms and conditions expressly set forth in this
Agreement, you hereby agree to take all other actions customary, reasonable and
necessary, in your good faith judgment, for you as Exchange Agent to effect the
matters contemplated hereby.
22. You hereby expressly waive any lien, encumbrance or right of
set-off whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes by reasons of amounts, if any, borrowed by the
Company, or any of its subsidiaries or affiliates pursuant to any loan, credit
or other agreement with you or for compensation owed to you hereunder or under
any other agreement.
23. The Company covenants and agrees to fully indemnify and hold you
harmless in your capacity as Exchange Agent hereunder against any and all loss,
liability, cost or expense, including reasonable attorneys' fees and expenses,
incurred without gross negligence or willful misconduct on your part, arising
out of or in connection with any act, omission, delay or refusal made by you in
reliance upon any signature, endorsement, assignment, certificate, order,
request, notice, instruction or other instrument or document reasonably believed
by you in good faith to be valid, genuine and sufficient and in accepting any
tender or effecting any transfer of Old Securities reasonably believed by you in
good faith to be authorized, and in delaying or refusing in good faith to accept
any tenders or effect any transfer of Old Securities. In no case shall the
Company be liable under this indemnity with respect to any claim against you
unless the Company shall be notified by you, by letter or facsimile
transmission, of the written assertion of a claim against you or of any other
action commenced against you, promptly after you shall have received any such
written assertion or shall have been served with a summons in connection
therewith. The Company shall be entitled to participate at its own expense in
the defense of any such claim or other action and, if the Company so elects, the
Company shall assume the defense of any suit brought to enforce any such claim.
In the event that the Company shall assume the defense of any such suit, the
Company shall not be liable for the fees and expenses of any additional counsel
thereafter retained by you, so long as the Company shall retain counsel
reasonably satisfactory to you to defend such suit, and so long as you have not
determined, in your reasonable judgment, that a conflict of interest exists
between you and the Company. The provisions
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of this section shall survive the termination of this Agreement. You understand
and agree that the Company shall not be liable under this paragraph for the fees
and expenses of more than one legal counsel for you.
24. You shall arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service.
25. You shall deliver or cause to be delivered, in a timely manner
to each governmental authority to which any transfer taxes are payable in
respect of the exchange of Old Securities, the Company's check in the amount of
all transfer taxes so payable; provided, however, that you shall reimburse the
Company for amounts refunded to you in respect of your payment of any such
transfer taxes, at such time as such refund is received by you.
26. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of New
York applicable to agreements made and to be performed entirely within such
state, and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
27. This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
28. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
29. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party or
parties to be charged. This Agreement may not be modified orally.
30. Unless otherwise provided herein, all notices, requests and
other communications to any party hereunder shall be in writing (including
facsimile or similar writing) and shall be given to such party, addressed to it,
at its address or telecopy number set forth below:
If to the Company:
Western Wireless Corporation
0000 000(xx) Xxxxxx X.X.
0
Xxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxxxxx, Esq.
If to the Exchange Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust
Administration
31. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Sections 19 and 23 shall survive the termination of this Agreement.
Upon any termination of this Agreement, you shall promptly deliver to the
Company any certificates for Securities, funds or property then held by you as
Exchange Agent under this Agreement.
32. This Agreement shall be binding and effective as of the date
hereof.
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
WESTERN WIRELESS CORPORATION
By:
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Name:
Title:
Accepted as of the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:
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Name:
Title:
