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Exhibit 10.46
WESTERN WIRELESS CORPORATION
10 1/2% Senior Subordinated Notes Due 2007
Purchase Agreement
October 18, 1996
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation,
Salomon Brothers Inc,
Toronto Dominion Securities (USA) Inc.,
c/o Goldman, ▇▇▇▇▇ & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Ladies and Gentlemen:
Western Wireless Corporation, a Washington corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Purchasers named in Schedule I hereto (the "Purchasers") an aggregate of
$200,000,000 principal amount of the Senior Subordinated Notes Due 2007,
specified above (the "Securities").
1. The Company represents and warrants to, and agrees with, each of the
Purchasers that:
(a) A preliminary offering circular, dated October 9, 1996 (the
"Preliminary Offering Circular") and an offering circular, dated October
18, 1996 (the "Offering Circular", in each case including the
international supplement thereto), have been prepared in connection with
the offering of the Securities. Any reference to the Preliminary Offering
Circular or the Offering Circular shall be deemed to refer to and include
the Company's most recent Quarterly Report on Form 10-Q and all subsequent
documents filed with the United States Securities and Exchange Commission
(the "Commission") pursuant to Section 13(a), 13(c) or 15(d) of the United
States Securities Exchange Act of 1934, as amended (the "Exchange Act"),
on or prior to the date of the Preliminary Offering Circular or the
Offering Circular, as the case may be, and any reference to the
Preliminary Offering Circular or the Offering Circular, as the case may
be, as amended or supplemented, as of any specified date, shall be deemed
to include (i) any documents filed with the Commission pursuant to Section
13(a), 13(c) or 15(d) of the Exchange Act after the date of the
Preliminary Offering Circular or the Offering Circular, as the case may
be, and prior to such specified date and (ii) any Additional Issuer
Information (as defined in Section 5(f)) furnished by the Company prior to
the completion of the distribution of the Securities; and all documents
filed under the Exchange Act and so deemed to be included in the
Preliminary Offering Circular or the Offering Circular, as the case may
be, or any amendment or supplement thereto are hereinafter called the
"Exchange Act Reports". The Exchange Act Reports, when they were or are
filed with the Commission, conformed or will conform in all material
respects to the applicable requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder. The
Preliminary Offering Circular or the Offering Circular and any amendments
or supplements thereto and the Exchange Act Reports did not and will not,
as of their respective dates, contain an untrue
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statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by a Purchaser through ▇▇▇▇▇▇▇, Sachs & Co.
expressly for use therein;
(b) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included in the
Offering Circular any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Offering Circular; and, since the respective dates as of which information
is given in the Offering Circular, there has not been any change in the
capital stock or partnership interests and there has not been any increase
in the short-term debt or long-term debt of the Company or any of its
subsidiaries, or any material adverse change, or any development involving
a prospective material adverse change, in or affecting the general
affairs, management, financial position, shareholders' equity or results
of operations of the Company and its subsidiaries (a "Material Adverse
Effect"), otherwise than as set forth or contemplated in the Offering
Circular;
(c) The Company and its subsidiaries have valid title in fee simple
to all real property and valid title to all personal property owned by
them, in each case free and clear of all liens, encumbrances and defects
except those that are described in the Offering Circular, those that could
not reasonably be expected to have a Material Adverse Effect and those
that do not interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases with such exceptions
as could not reasonably be expected to have a Material Adverse Effect, and
do not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries;
(d) The Company has been duly incorporated and is validly existing
as a corporation under the laws of the State of Washington, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Offering Circular, and has been duly
qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; and
each subsidiary of the Company listed on Exhibit 21 to the Company's
Registration Statement (Commission File No. 333-2688) (the "Significant
Subsidiaries", or the "Significant Subsidiary", as the case may be) has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation;
(e) The Company has an authorized capitalization as set forth in the
Offering Circular, and all the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and conform to the description of the capital stock
contained in the Company's prospectus dated as of May 22, 1996 with
respect to the Company's Class A Common Stock; and all of the issued
shares of capital stock or partnership interests of each Significant
Subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and (except for minority
interests representing less than 10% of
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such Significant Subsidiary) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims
other than liens granted pursuant to the Loan Agreement, dated as of May
6, 1996, with The Toronto-Dominion Bank, Barclays Bank, PLC, and ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Managing Agents (the "Credit
Facility") or the Loan Agreement, dated June 30, 1995, with Northern
Telecom Inc. (the "NORTEL Facility" and, together with the Credit
Facility, the "Senior Secured Facilities");
(f) The Securities have been duly authorized and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by
the Indenture dated as of October 24, 1996 (the "Indenture") between the
Company and ▇▇▇▇▇▇ Trust Company of California, as Trustee (the
"Trustee"), under which they are to be issued; the Indenture constitutes a
valid and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Securities and the Indenture will conform in all material respects to the
descriptions thereof in the Offering Circular;
(g) The Exchange and Registration Rights Agreement between the
Company and the Purchasers dated the date hereof, which is substantially
in the form previously delivered to you (the "Registration Rights
Agreement"), has been duly authorized, executed and delivered by the
Company, and constitutes a valid and legally binding agreement of the
Company enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles, and will conform in all material respects to
the description thereof in the Offering Circular;
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and the Registration Rights Agreement and the consummation of
the transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement, shareholders agreement, registration rights agreement or other
material agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any
of its subsidiaries is subject, nor will such action result in any
violation of the provisions of the Articles of Incorporation or By-laws of
the Company or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company of the transactions
contemplated by this Agreement, the Indenture or the Registration Rights
Agreement, except such consents, approvals, authorizations, registrations
or qualifications as may be required under state or foreign securities or
Blue Sky laws in connection with the purchase and distribution of the
Securities by the Purchasers, and such consents, approvals,
authorizations, registrations and qualifications as may be required under
the Securities Act of 1933, as amended (the "Securities Act"), the Trust
Indenture Act of 1939 and state or foreign securities or Blue Sky laws in
connection with the exchange offer or resale registration statement
contemplated in the Offering Circular and described in the Registration
Rights Agreement;
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(i) Neither the Company nor any of its Significant Subsidiaries is
(a) in violation of its Articles or Certificate of Incorporation, as the
case may be, or By-laws or (b) in default in the performance or observance
of any material obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease,
shareholders agreement, registration rights agreement or other agreement
or instrument to which it is a party or by which it or any of its
properties may be bound, except, in the case of this clause (b), for
defaults that individually or in the aggregate would not have a Material
Adverse Effect;
(j) The statements set forth in the Offering Circular under the
caption "Description of Senior Subordinated Notes," insofar as they
purport to constitute a summary of the terms of the Securities, under the
captions "Offer and Resale", "Risk Factors -- Competition",
"--Intellectual Property and Branding", "--Governmental Regulation",
"Description of Indebtedness", "Business -- Competition" and "Business --
Governmental Regulation" insofar as they purport to describe the
provisions of the laws and documents to which the Company or any
subsidiary is a party referred to therein are accurate, complete and fair
in all material respects;
(k) Other than as set forth or contemplated in the Offering
Circular, there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect on the
current or future consolidated financial position, shareholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole; and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened
by others;
(l) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(m) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes;
(n) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Securities Act and the rules and
regulations of the Commission thereunder;
(o) Except as otherwise disclosed or contemplated by the Offering
Circular, the Company and its subsidiaries have such certificates of
convenience or necessity, easements, rights-of-way, operating rights,
permits, licenses, franchises and authorizations of governmental or
regulatory authorities ("Permits"), including Permits issued by the
Federal Communications Commission (the "FCC"), as are necessary to own
their respective properties and to conduct their respective businesses
substantially in the manner described in the Offering Circular, except for
any such Permits the absence of which could not reasonably be expected to
result in a Material Adverse Effect; the Company and its subsidiaries have
fulfilled all their material obligations with respect to such Permits and
no event has occurred which allows (or after notice or lapse of time would
allow) revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such Permit, in each case
which could reasonably be expected to result in
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a Material Adverse Effect; and, except as described in the Offering
Circular, none of such Permits contains any restriction that is burdensome
to the Company or any of its subsidiaries, except for restrictions that
could not reasonably be expected to have a Material Adverse Effect;
(p) Except as otherwise disclosed or contemplated by the Offering
Circular, the Company and its subsidiaries own or possess all trademarks,
trademark registrations, service marks, service ▇▇▇▇ registrations, trade
names, licenses relating to intellectual property, trade secrets and
rights ("Intellectual Property") described in the Offering Circular as
being owned or possessed by them or any of them, and the Company is not
aware of any claim to the contrary or any challenge by any other person to
the rights of the Company or any of its subsidiaries with respect to the
foregoing, which claim or challenge could reasonably be expected to have a
Material Adverse Effect;
(q) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale of
the Securities) will violate or result in a violation of Section 7 of the
Exchange Act, or any regulation promulgated thereunder, including, without
limitation, Regulations G, T, U, and X of the Board of Governors of the
Federal Reserve System;
(r) Prior to the date hereof, neither the Company nor any of its
affiliates has taken any action which is designed to or which has
constituted or which might have been expected to cause or result in
stabilization or manipulation of the price of any security of the Company
in connection with the offering of the Securities;
(s) When the Securities are issued and delivered pursuant to this
Agreement, the Securities will not be of the same class (within the
meaning of Rule 144A under the Securities Act) as securities which are
listed on a national securities exchange registered under Section 6 of the
Exchange Act or quoted in a U.S. automated inter-dealer quotation system;
(t) The Company is subject to Section 13 or 15(d) of the Exchange
Act;
(u) Neither the Company, nor any person acting on its behalf (other
than the Purchasers, as to which the Company makes no representation), has
offered or sold the Securities by means of any general solicitation or
general advertising within the meaning of Rule 502(c) under the Act or,
with respect to Securities sold outside the United States to non-U.S.
persons (as defined in Rule 902 under the Securities Act), by means of any
directed selling efforts within the meaning of Rule 902 under the
Securities Act and the Company, any affiliate of the Company and any
person acting on its or their behalf has complied with and will implement
the "offering restrictions" within the meaning of such Rule 902; and
(v) Within the preceding six months, except for the Company's 10
1/2% Senior Subordinated Notes due 2006, neither the Company nor any other
person acting on behalf of the Company has offered or sold to any person
any Securities, or any securities of the same or a similar class as the
Securities, other than Securities offered or sold to the Purchasers
hereunder. The Company will take reasonable precautions designed to insure
that any offer or sale, direct or indirect, in the United States or to any
U.S. person (as defined in Rule 902 under the Securities Act) of any
Securities or any substantially similar security issued by the Company,
within six months subsequent to the date on which the distribution of the
Securities has been completed (as notified to the Company by ▇▇▇▇▇▇▇,
Sachs & Co.), is made under restrictions and other circumstances
reasonably designed not to affect the status of the offer and sale of the
Securities in the United
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States and to U.S. persons contemplated by this Agreement as transactions
exempt from the registration provisions of the Securities Act.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Purchasers, and each of the Purchasers
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of 97.25% of the principal amount thereof, plus accrued interest, if any,
from October 24, 1996 to the Time of Delivery hereunder, the principal amount of
Securities set forth opposite the name of such Purchaser in Schedule I hereto.
3. Upon the authorization by you of the release of the Securities, the
several Purchasers propose to offer the Securities for sale upon the terms and
conditions set forth in this Agreement and the Offering Circular and each
Purchaser hereby represents and warrants to, and agrees with the Company that:
(a) It will offer and sell the Securities only to: (i) persons who
it reasonably believes are "qualified institutional buyers" ("QIBs")
within the meaning of Rule 144A under the Securities Act in transactions
meeting the requirements of Rule 144A, (ii) institutions which it
reasonably believes are "accredited investors" ("Institutional Accredited
Investors") within the meaning of Rule 501 under the Securities Act or
(iii) upon the terms and conditions set forth in Annex I to this
Agreement;
(b) It is an Institutional Accredited Investor; and
(c) It will not offer or sell the Securities by any form of general
solicitation or general advertising, including but not limited to the
methods described in Rule 502(c) under the Securities Act.
4. (a) Except as set forth in the next paragraph, the Securities to be
purchased by each Purchaser hereunder will be represented by one or more
definitive global Securities in book-entry form which will be deposited by or on
behalf of the Company with The Depository Trust Company ("DTC") or its
designated custodian. The Company will deliver the Securities to ▇▇▇▇▇▇▇, ▇▇▇▇▇
& Co., for the account of each Purchaser, against payment by or on behalf of
such Purchaser of the purchase price therefor by certified or official bank
check or checks, payable to the order of the Company in, or by wire transfer to
an account specified by the Company of, Federal (same day) funds, by causing DTC
to credit the Securities to the account of ▇▇▇▇▇▇▇, Sachs & Co. at DTC. The
Company will cause the certificates representing the Securities to be made
available to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. for checking at least twenty-four hours prior
to the Time of Delivery (as defined below) at the office of DTC or its
designated custodian (the "Designated Office"). The time and date of such
delivery and payment shall be 9:30 a.m., New York City time, on October 24, 1996
or such other time and date as ▇▇▇▇▇▇▇, Sachs & Co. and the Company may agree
upon in writing. Such time and date are herein called the "Time of Delivery".
Such Securities, if any, as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. may request upon at least
forty-eight hours' prior notice to the Company (such request to include the
authorized denominations and the names in which they are to be registered),
shall be delivered in definitive certificated form, by or on behalf of the
Company to ▇▇▇▇▇▇▇, Sachs & Co. for the account of certain of the Purchasers,
against payment by or on behalf of such Purchaser of the purchase price therefor
by certified or official bank check or checks, payable to the order of the
Company in, or by wire transfer to an account specified by the Company of,
Federal (same day) funds. The Company will cause the certificates representing
the
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Securities to be made available for checking and packaging at least twenty-four
hours prior to the Time of Delivery at the office of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
(b) The documents to be delivered at the Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross-receipt
for the Securities and any additional documents requested by the Purchasers
pursuant to Section 7(j) hereof, will be delivered at such time and date at the
offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ (the "Closing Location"), and the Securities will be delivered at the
Designated Office, all at the Time of Delivery. A meeting will be held at the
Closing Location at 1:00 p.m., Seattle time, on the New York Business Day next
preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Purchasers:
(a) To prepare the Offering Circular in a form approved by you; to
make no amendment or any supplement to the Offering Circular which shall
be disapproved by you promptly after reasonable notice thereof; and to
furnish you with copies thereof;
(b) In connection with the exchange offer and the registration
statement (the "Registration Statement") contemplated by the Registration
Rights Agreement, to prepare the Secondary Transactions Prospectus (as
defined below) in a form approved by ▇▇▇▇▇▇▇, Sachs & Co. and to file such
prospectus pursuant to Rule 424(b) under the Securities Act not later than
the Commission's close of business on the second business day following
the date on which such Registration Statement is declared effective, or,
if applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Securities Act; to make no amendment or any supplement to the
Registration Statement or Secondary Transactions Prospectus which shall be
disapproved by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., promptly after reasonable notice
thereof (such approval not to be unreasonably withheld or delayed); to
advise ▇▇▇▇▇▇▇, Sachs & Co., promptly after it receives notice thereof, of
the time when such Registration Statement becomes effective and to advise
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. when any supplement to the Secondary Transactions
Prospectus or any amended Secondary Transactions Prospectus has been filed
and to furnish ▇▇▇▇▇▇▇, Sachs & Co. with copies thereof; to cause such
Registration Statement (and, if requested by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. in order
to register under the Securities Act Securities for offer and sale in
secondary transactions, one or more additional registration statements
under the Securities Act) to remain in effect as to the Securities for so
long as ▇▇▇▇▇▇▇, Sachs & Co. may deem necessary in order to facilitate
secondary transactions therein (any reference herein to the Registration
Statement or the Secondary Transactions Prospectus shall be deemed to
refer to and include any such additional registration statement or the
form of prospectus included therein (in the form first filed pursuant to
Rule 424(b) under the Securities Act)); to advise ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any prospectus, or the suspension of the qualification of the
Securities for offer or sale in any jurisdiction, of the initiation of
threatening of any proceeding for any such purpose, or of any request by
the Commission for the amending or supplementing of the Registration
Statement or Secondary Transactions Prospectus or for additional
information; in the event of the issuance of any stop order or of any
order preventing or suspending the use of any prospectus or suspending any
such qualification, promptly to use
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its best efforts to obtain the withdrawal of such order; as used herein,
"Secondary Transactions Prospectus" means the form of prospectus relating
to the distribution of the Securities in secondary transactions, in the
form first filed pursuant to Rule 424(b) under the Securities Act;
(c) Promptly from time to time to take such action as ▇▇▇▇▇▇▇, Sachs
& Co. may reasonably request to qualify the Securities for offer or sale
under the securities laws of such jurisdictions as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
may request and to comply with such laws so as to permit the continuance
of sales and dealings therein in such jurisdictions for as long as may be
necessary to facilitate secondary transactions in the Securities provided
that in connection therewith the Company shall not be required to qualify
as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(d) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale under
the securities laws of such jurisdictions as you may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the distribution of the Securities, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction;
(e) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time to
time, to furnish the Purchasers with four copies of the Offering Circular
in New York City and each amendment or supplement thereto signed by an
authorized officer of the Company with the independent accountants'
report(s) in the Offering Circular, and any amendment or supplement
containing amendments to the financial statements covered by such
report(s), signed by the accountants, and additional copies thereof in
such quantities as you may reasonably request, and if, at any time prior
to the expiration of nine months after the date of the Offering Circular,
any event shall have occurred as a result of which the Offering Circular
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made when such Offering Circular is delivered, not misleading,
or, if for any other reason it shall be necessary or desirable during such
same period to amend or supplement the Offering Circular, to notify you
and upon your request to prepare and furnish without charge to each
Purchaser and to any dealer in securities as many copies as you may from
time to time reasonably request of an amended Offering Circular or a
supplement to the Offering Circular which will correct such statement or
omission or effect such compliance;
(f) During the period beginning from the date hereof and continuing
until the date six months after the Time of Delivery, not to offer, sell
contract to sell or otherwise dispose of, except as provided hereunder,
any securities of the Company that are substantially similar to the
Securities;
(g) Not to be or become, at any time prior to the expiration of
three years after the Time of Delivery, an open-end investment company,
unit investment trust, closed-end investment company or face-amount
certificate company that is or is required to be registered under Section
8 of the Investment Company Act;
(h) At any time when the Company is not subject to Section 13 or
15(d) of the Exchange Act, for the benefit of holders from time to time of
Securities, to furnish at its expense, upon
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request, to holders of Securities and prospective purchasers of securities
information (the "Additional Issuer Information") satisfying the
requirements of subsection (d)(4)(i) of Rule 144A under the Securities
Act;
(i) If requested by you, to use its best efforts to cause such
Designated Securities to be eligible for the PORTAL trading system of the
National Association of Securities Dealers, Inc.;
(j) To file with the Commission, not later than 15 days after the
Time of Delivery, five copies of a notice on Form D under the Securities
Act (one of which will be manually signed by a person duly authorized by
the Company); to otherwise comply with the requirements of Rule 503 under
the Securities Act; and to furnish promptly to you evidence of each such
required timely filing (including a copy thereof);
(k) To furnish to the holders of the Securities as soon as
practicable after the end of each fiscal year an annual report (including
a balance sheet and statements of income, shareholders' equity and cash
flows of the Company and its consolidated subsidiaries certified by
independent public accountants) and, as soon as practicable after the end
of each of the first three quarters of each fiscal year (beginning with
the fiscal quarter ending after the date of the Offering Circular),
consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail; and to furnish to the
holder of the Securities all other documents specified in Section 704 of
the Indenture all in the manner so specified;
(l) During a period of five years from the date of the Offering
Circular, to furnish to you, and for so long as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. may
offer or sell Securities in secondary transactions to furnish to ▇▇▇▇▇▇▇,
Sachs & Co., copies of all reports or other communications (financial or
other) furnished to shareholders of the Company, and to deliver to you,
and for so long as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. may offer or sell Securities in
secondary transactions to deliver to ▇▇▇▇▇▇▇, Sachs & Co., (i) as soon as
they are available, (A) copies of any reports and financial statements
furnished to or filed with the Commission or any inter-dealer quotation
system or national securities exchange on which the Securities or any
class of securities of the Company is listed; and (B) the documents
specified in Section 704 of the Indenture as in effect at the Time of
Delivery; and (ii) such additional information concerning the business and
financial condition of the Company as you and, for so long as ▇▇▇▇▇▇▇,
Sachs & Co. may offer or sell Securities in secondary transactions,
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in reports
furnished to its shareholders generally or to the Commission);
(m) During the period of three years after the Time of Delivery, the
Company will not, and will not permit any of its "affiliates" (as defined
in Rule 144 under the Securities Act) to, resell any of the Securities
which constitute "restricted securities" under Rule 144 that have been
reacquired by any of them;
(n) The Company shall file and use its best efforts to cause to be
declared or become effective under the Securities Act, on or prior to the
30th day after the Time of Delivery, a registration statement on Form S-4
providing for the registration of (i) another series of debt securities of
the Company, with terms substantially identical to the Securities (except
that such securities will not contain terms with respect to special
interest payments or transfer restrictions) (the "Exchange Securities"),
and the exchange of the Securities for the Exchange Securities, all
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in a manner which will permit persons who acquire the Exchange Securities
to resell the Exchange Securities pursuant to Section 4(1) of the
Securities Act;
(o) To furnish or cause to be furnished to you, each time the
Secondary Transactions Prospectus shall be amended or supplemented,
written opinions of counsel for the Company specified in Section 7 hereof,
a letter from the independent accountants who have certified the financial
statements included in the Secondary Transactions Prospectus as then
amended and certificates of officers of the Company, in each case in form
and substance satisfactory to you, all to the effect specified in
subsections (b), (c), (d), (e) and (j), respectively, of Section 7 hereof
(as modified to relate to the Secondary Transactions Prospectus as then
amended or modified); and
(p) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the
Offering Circular under the caption "Use of Proceeds".
6. The Company covenants and agrees with the several Purchasers that the
Company will pay or cause to be paid the following: (i) all expenses in
connection with the preparation, printing and filing of the Registration
Statement and amendments and supplements thereto and the mailing and delivering
of copies thereof to ▇▇▇▇▇▇▇, Sachs & Co.; (ii) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the issue
of the Securities and all other expenses in connection with the preparation,
printing and filing of the Preliminary Offering Circular and the Offering
Circular and any amendments and supplements thereto and the mailing and
delivering of copies thereof to the Purchasers and dealers; (iii) the cost of
printing or producing any Agreement among Purchasers, this Agreement, the
Indenture, the Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iv) all expenses
in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 5(b) hereof, including the
fees and disbursements of counsel for the Purchasers in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(v) any fees charged by securities rating services for rating the Securities;
(vi) the cost of preparing the Securities; (vii) the fees and expenses of the
Trustee and any agent of the Trustee and the fees and disbursements of counsel
for the Trustee in connection with the Indenture and the Securities; (viii) any
cost incurred in connection with the designation of the Securities for trading
in PORTAL; and (ix) all other costs and expenses incident to the performance of
its obligations hereunder which are not otherwise specifically provided for in
this Section. It is understood, however, that, except as provided in this
Section, and Sections 8 and 11 hereof, the Purchasers will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Purchasers hereunder shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Company herein are, at and as of the Time of Delivery, true
and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Purchasers, shall have furnished
to you such opinion or opinions (a draft of each such opinion is attached as
Annex III(a) hereto), dated the Time of Delivery, with respect to the matters
covered in paragraphs (i), (ii), (vi), (vii) and (viii) of subsection (b) below
as well as such other related matters as you may reasonably request, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass
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upon such matters;
(b) Each of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Constant & ▇▇▇▇▇▇▇▇,
each counsel for the Company, shall have furnished to you their written opinions
(a draft of each such opinion is attached as Annex III(b) and Annex III(c)
hereto), dated the Time of Delivery, in form and substance satisfactory to you,
to the effect that (such opinions may cover different subsections set forth
below, provided that ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Constant & ▇▇▇▇▇▇▇▇ shall give the opinion
with respect to the validity of the Indenture):
(i) The Company has been duly incorporated and is validly existing
as a corporation under the laws of the State of Washington, with corporate
power and authority to own its properties and conduct its business as
described in the Offering Circular.
(ii) The Company has an authorized capitalization as set forth in
the Offering Circular, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued and are fully
paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws of
each jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, other than such
jurisdictions in which the failure to be so qualified would not result in
a Material Adverse Effect (such counsel being entitled to rely in respect
of the opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the Company,
provided that such counsel shall state that they believe that both you and
they are justified in relying upon such opinions and certificates);
(iv) Each Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation; and all of the issued
shares of capital stock or partnership interests of each Significant
Subsidiary have been duly and validly authorized and issued, are fully
paid and non-assessable, and (except for minority interests representing
less than 10% of such Significant Subsidiary) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims other than liens granted pursuant to the Senior Secured
Facilities (such counsel being entitled to rely in respect of the opinion
in this clause upon opinions of local counsel and in respect to matters of
fact upon certificates of officers of the Company or its Significant
Subsidiaries, provided that such counsel shall state that they believe
that both you and they are justified in relying upon such opinions and
certificates);
(v) To the best of such counsel's knowledge and other than as set
forth in the Offering Circular, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its subsidiaries
is the subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect; and, to the best of such counsel's knowledge and other
than as set forth in the Offering Circular, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(vi) This Agreement has been duly authorized, executed and delivered
by the Company;
(vii) The Securities have been duly authorized, executed,
authenticated, issued and delivered
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and constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture; and the Securities and
the Indenture conform to the descriptions thereof in the Offering
Circular;
(viii) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights and to
general equity principles;
(ix) The Registration Rights Agreement has been duly authorized,
executed and delivered, and constitutes a valid and legally binding
obligation of the Company enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Registration Rights
Agreement conforms in all material respects to the description thereof in
the Offering Circular;
(x) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and the Registration Rights Agreement and the consummation of
the transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement, shareholders agreement, registration rights agreement or other
material agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Articles of Incorporation
or By-laws of the Company or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties;
(xi) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries and, in the case
of any court, known to such counsel is required for the issue and sale of
the Securities or the consummation by the Company of the transactions
contemplated by this Agreement, the Indenture or the Registration Rights
Agreement, except such consents, approvals, authorizations, registrations
or qualifications as may be required under state or foreign securities or
Blue Sky laws in connection with the purchase and distribution of the
Securities by the Purchasers, and such consents, approvals,
authorizations, registrations and qualifications as may be required under
the Securities Act, the Trust Indenture Act and state or foreign
securities or Blue Sky laws in connection with the exchange offer or
resale registration statement contemplated in the Offering Circular and
described in the Registration Rights Agreement;
(xii) Neither the Company nor any of its Significant Subsidiaries is
(a) in violation of its Articles or Certificate of Incorporation, as the
case may be, or By-laws or (b) in default in the performance or observance
of any material obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease,
shareholders agreement, registration rights agreement or other agreement
or instrument, which such agreement or instrument is known to such
counsel, to which it is a party or by which it or any of its properties
may be bound, except, in the case of this clause (b), for defaults that
individually or in the aggregate would not have a Material Adverse Effect;
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(xiii) The statements set forth in the Offering Circular under the
caption "Description of Senior Subordinated Notes", insofar as they
purport to constitute a summary of the terms of the Securities, and under
the captions "Description of Indebtedness" and "Offer and Resale", insofar
as they purport to describe the provisions of the laws and documents to
which the Company or a subsidiary of the Company is a party referred to
therein are accurate, complete and fair in all material respects; and
(xiv) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act.
(xv) The Exchange Act Reports (other than the financial statements
and related schedules therein, as to which such counsel need express no
opinion), when they were filed with the Commission, complied as to form in
all material respects with the requirements of the Exchange Act, and the
rules and regulations of the Commission thereunder;
(xvi) No registration of the Securities under the Securities Act,
and no qualification of an indenture under the United States Trust
Indenture Act of 1939 with respect thereto, is required for the offer,
sale and initial resale of the Securities by the Purchasers in the manner
contemplated by this Agreement and the Offering Circular;
In addition, such counsel shall state that nothing has come to their
attention that would cause them to believe that, as of its date, the
Offering Circular, excluding the Exchange Act Reports, and the Offering
Circular or any further amendment or supplement thereto made by the
Company prior to the Time of Delivery (other than the financial statements
and related schedules or other financial data therein, as to which such
counsel need express no belief) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading or that, as of the Time of Delivery, the
Offering Circular, excluding the Exchange Act Reports, and the Offering
Circular or any further amendment or supplement thereto made by the
Company prior to the Time of Delivery (other than the financial statements
and related schedules or other financial data therein, as to which such
counsel need express no belief) contains an untrue statement of a material
fact or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(c) A Senior Vice President of the Company responsible for real estate
matters shall furnish to you a certificate on behalf of the Company, dated the
Time of Delivery, in form and substance satisfactory to you, stating that to the
best of his knowledge and without any independent investigation (i) the Company
and its subsidiaries have valid title in fee simple to all real property owned
by them, in each case free and clear of all liens, encumbrances and defects
except those that are described in the Offering Circular and those that could
not reasonably be expected to have a Material Adverse Effect; and (ii) any real
property and buildings held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable leases with such exceptions
as could not reasonably be expected to have a Material Adverse Effect.
(d) ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Chartered, regulatory counsel for the
Company, shall have furnished to you their written opinion (a draft of each such
opinion is attached as Annex III(d) hereto), dated the Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) None of the Company or any of its subsidiaries has failed to
obtain any Permit from the
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FCC which is material to the conduct of the Company's or such subsidiary's
business. The Company and its subsidiaries have all Permits from the FCC
necessary to own their respective properties and to conduct their
respective telecommunications businesses in the manner described in the
Offering Circular, which Permits are material to the conduct of the
Company's or such subsidiary's business;
(ii) The compliance by the Company with all of the provisions of
this Agreement and the Indenture and the consummation of the transactions
herein and therein contemplated will not result in any conflict with or
result in a breach or violation of the Communications Act or the
Commission's Rules or any Permit issued to the Company or any of its
subsidiaries, as the case may be, under or pursuant to authority granted
under the Communications Act;
(iii) No consent, approval, authorization, order, registration or
qualification under the Communications Act or the Commission's Rules is
required for the sale of the Securities as described in the Offering
Circular or the consummation by the Company of the transactions
contemplated by this Agreement and the Indenture;
(iv) Other than as set forth or contemplated in the Offering
Circular, such counsel does not know of any legal or governmental
proceedings pending before the FCC to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of operations of the
Company and its subsidiaries taken as a whole; and such counsel does not
know of any such proceedings that are threatened or contemplated by the
FCC; and
(v) The statements set forth in the Offering Circular under the
captions "Risk Factors--Governmental Regulation," "Business--Competition"
and "Business--Governmental Regulation", insofar as they purport to
describe the provisions of the Communications Act and the Commission's
Rules and documents to which the Company or a subsidiary of the Company is
a party referred to therein are accurate, complete and fair in all
material respects.
(e) On the date of the Offering Circular prior to the execution of this
Agreement and also at the Time of Delivery, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP shall have
furnished to you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, to the effect set forth in
Annex II hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex II(a) hereto and a draft of the
form of letter to be delivered at the Time of Delivery is attached as Annex
II(b) hereto);
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Offering Circular any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Offering Circular, and (ii) since the
respective dates as of which information is given in the Offering Circular there
shall not have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Offering
Circular, the effect of which, in any such case described in Clause (i) or
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(ii), is in your judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the offering or the delivery of the Securities on
the terms and in the manner contemplated in this Agreement and in the Offering
Circular;
(g) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities;
(h) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange or on NASDAQ; (ii) a suspension or
material limitation in trading in the Company's securities on NASDAQ; (iii) a
general moratorium on commercial banking activities declared by either Federal
or New York or Washington State authorities; (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the United States
of a national emergency or war, if the effect of any such event specified in
this Clause (iv) in your judgment makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on the terms
and in the manner contemplated in the Offering Circular; or (v) the occurrence
of any material adverse change in the existing financial, political or economic
conditions in the United States or elsewhere which, in your judgment, would
materially and adversely affect the financial markets or the market for the
Securities and other debt securities;
(i) The Securities have been designated for trading on PORTAL; and
(j) The Company shall have furnished or caused to be furnished to you at
the Time of Delivery certificates of officers of the Company satisfactory to you
as to the accuracy of the representations and warranties of the Company herein
at and as of such Time of Delivery, as to the performance by the Company of all
of its obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in the first paragraph of and subsection
(f) of this Section and as to such other matters as you may reasonably request.
8. (a) The Company will indemnify and hold harmless each Purchaser against
any losses, claims, damages or liabilities, joint or several, to which such
Purchaser may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Offering Circular or the
Offering Circular, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, and will reimburse each
Purchaser for any legal or other expenses reasonably incurred by such Purchaser
in connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Offering Circular or the
Offering Circular or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Purchaser
through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein.
(b) Each Purchaser will indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Securities Act or
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otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Offering
Circular or the Offering Circular, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Offering Circular or the Offering Circular or any such amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by such Purchaser through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use
therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to,
or an admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Purchasers on the other from the offering
of the Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Purchasers on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations (including any
material prejudice as a result of a failure to give notice as required by
subsection (c) above). The relative benefits received by the Company on the one
hand and the Purchasers on the
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other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Purchasers, in
each case as set forth in the Offering Circular. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Purchasers on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Purchasers agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if the Purchasers were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Purchaser shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to investors were offered to investors exceeds the amount of any
damages which such Purchaser has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. The
Purchasers' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Purchaser within the meaning of the Securities Act; and the obligations of the
Purchasers under this Section 8 shall be in addition to any liability which the
respective Purchasers may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company and to each person,
if any, who controls the Company within the meaning of the Securities Act.
9. (a) If any Purchaser shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder, you may in your discretion
arrange for you or another party or other parties to purchase such Securities on
the terms contained herein. If within thirty-six hours after such default by any
Purchaser you do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to you to purchase such
Securities on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Securities, or the Company notifies you that it has so arranged for the
purchase of such Securities, you or the Company shall have the right to postpone
the Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Offering Circular,
or in any other documents or arrangements, and the Company agrees to prepare
promptly any amendments to the Offering Circular which in your opinion may
thereby be made necessary. The term "Purchaser" as used in this Agreement shall
include any person substituted under this Section with like effect as if such
person had originally been a party to this Agreement with respect to such
Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Purchaser or Purchasers by you and the Company as
provided in subsection (a) above, the aggregate principal amount of such
Securities which remains unpurchased does not exceed one-eleventh of the
17
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aggregate principal amount of all the Securities, then the Company shall have
the right to require each non-defaulting Purchaser to purchase the principal
amount of Securities which such Purchaser agreed to purchase hereunder and, in
addition, to require each non-defaulting Purchaser to purchase its pro rata
share (based on the principal amount of Securities which such Purchaser agreed
to purchase hereunder) of the Securities of such defaulting Purchaser or
Purchasers for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Purchaser from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Purchaser or Purchasers by you and the Company as
provided in subsection (a) above, the aggregate principal amount of Securities
which remains unpurchased exceeds one-eleventh of the aggregate principal amount
of all the Securities, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Purchasers to purchase
Securities of a defaulting Purchaser or Purchasers, then this Agreement shall
thereupon terminate, without liability on the part of any non-defaulting
Purchaser or the Company, except for the expenses to be borne by the Company and
the Purchasers as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Purchaser from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Purchasers, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Purchaser or any controlling person of any Purchaser, or the Company, or
any officer or director or controlling person of the Company, and shall survive
delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company shall not then be under any liability to any Purchaser except as
provided in Sections 6 and 8 hereof; but, if for any other reason, the
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Purchasers through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Purchasers in making preparations for the
purchase, sale and delivery of the Securities, but the Company shall then be
under no further liability to any Purchaser except as provided in Sections 6 and
8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Purchasers, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Purchaser made or given
by you.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Purchasers shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Registration
Department; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the Offering
Circular, Attention: General Counsel; provided, however, that any notice to a
Purchaser pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Purchaser at its address set forth in
its Purchasers' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
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13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Purchasers, the Company and, to the extent provided in Sections 8 and 10
hereof, the officers and directors of the Company and each person who controls
the Company or any Purchaser, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Purchaser shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one and the same
instrument.
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If the foregoing is in accordance with your understanding, please sign and
return to us eight (8) counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Purchasers, this letter and such acceptance hereof
shall constitute a binding agreement between each of the Purchasers and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Purchasers is pursuant to the authority set forth in a form of Agreement
among Purchasers, the form of which shall be submitted to the Company for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
Western Wireless Corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice Chariman of the Board
Accepted as of the date hereof:
▇▇▇▇▇▇▇, Sachs & Co.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation
Salomon Brothers Inc
Toronto Dominion Securities (USA) Inc.
By: /s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
----------------------------------------
(▇▇▇▇▇▇▇, Sachs & Co.)
On behalf of each of the Purchasers
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SCHEDULE I
Principal Amount of
Securities to be
Purchaser Purchased
--------- -------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $110,000,000
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation 30,000,000
Salomon Brothers Inc 30,000,000
Toronto Dominion Securities (USA) Inc. 30,000,000
------------
Total $200,000,000
============
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ANNEX I
(1) The Securities have not been and will not be registered under the
Securities Act and may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons except in accordance with Regulation
S under the Securities Act or pursuant to an exemption from the registration
requirements of the Securities Act. Each Purchaser represents that it has
offered and sold the Securities, and will offer and sell the Securities (i) as
part of their distribution at any time and (ii) otherwise until 40 days after
the later of the commencement of the offering and the Time of Delivery, only in
accordance with Rule 903 of Regulation S, Rule 144A or pursuant to Paragraph 2
of this Annex I under the Securities Act. Accordingly, each Purchaser agrees
that neither it, its affiliates nor any persons acting on its or their behalf
has engaged or will engage in any directed selling efforts with respect to the
Securities, and it and they have complied and will comply with the offering
restrictions requirement of Regulation S. Each Purchaser agrees that, at or
prior to confirmation of sale of Securities (other than a sale pursuant to Rule
144A) or pursuant to Paragraph 2 of this Annex I, it will have sent to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases Securities from it during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933 (the "Securities Act") and may not be
offered and sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any time
or (ii) otherwise until 40 days after the later of the commencement of
the offering and the closing date, except in either case in accordance
with Regulation S (or Rule 144A if available) under the Securities Act.
Terms used above have the meaning given to them by Regulation S."
Terms used in this paragraph have the meanings given to them by Regulation S.
Each Purchaser further agrees that it has not entered and will not enter
into any contractual arrangement with respect to the distribution or delivery of
the Securities, except with its affiliates or with the prior written consent of
the Company.
(2) Notwithstanding the foregoing, Securities in registered form may be
offered, sold and delivered by the Purchasers in the United States and to U.S.
persons pursuant to Section 3 of this Agreement without delivery of the written
statement required by paragraph (1) above.
(3) Each Purchaser further represents and agrees that (i) it has not
offered or sold and prior to the date six months after the date of issue of the
Securities will not offer or sell any Securities to persons in the United
Kingdom except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995, (b) it
has complied, and will comply, with all applicable provisions of the Financial
Services Act of 1986 of Great Britain with respect to anything done by it in
relation to the Securities in, from or otherwise involving the United Kingdom,
and (c) it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the issuance of
the Securities to a person who is of a kind described in Article 11(3) of the
Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions) Order 1996
of Great Britain or is a person to whom the document may
A-1
23
otherwise lawfully be issued or passed on.
(4) Each Purchaser agrees that it will not offer, sell or deliver any of
the Securities in any jurisdiction outside the United States except under
circumstances that will result in compliance with the applicable laws thereof,
and that it will take at its own expense whatever action is required to permit
its purchase and resale of the Securities in such jurisdictions. Each Purchaser
understands that no action has been taken to permit a public offering in any
jurisdiction outside the United States where action would be required for such
purpose. Each Purchaser agrees not to cause any advertisement of the Securities
to be published in any newspaper or periodical or posted in any public place and
not to issue any circular relating to the Securities, except in any such case
with ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.'s express written consent and then only at its own
risk and expense.
A-2
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ANNEX II
Pursuant to Section 7(e) of the Purchase Agreement, the accountants shall
furnish letters to the Purchasers to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries;
(ii) In our opinion, the consolidated financial statements and
financial statement schedules audited by us and included in the
Offering Circular comply as to form in all material respects with the
applicable requirements of the Exchange Act and the related published
rules and regulations;
(iii) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Offering
Circular agrees with the corresponding amounts (after restatements
where applicable) in the audited consolidated financial statements for
such five fiscal years;
(iv) On the basis of limited procedures not constituting an audit
in accordance with generally accepted auditing standards, consisting of
a reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included in the Offering Circular,
inquiries of officials of the Company and its subsidiaries responsible
for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of
cash flows included in the Offering Circular are not in
conformity with generally accepted accounting principles
applied on the basis substantially consistent with the basis
for the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of
cash flows included in the Offering Circular;
(B) any other unaudited income statement data and balance
sheet items included in the Offering Circular do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included in the Offering Circular;
(C) the unaudited financial statements which were not
included in the Offering Circular but from which were derived
any unaudited condensed financial statements referred to in
Clause (A) and any unaudited income statement data and balance
sheet items included in the Offering Circular and referred to
in Clause (B) were not determined on a basis substantially
consistent with the basis for the audited consolidated
financial statements included in the Offering Circular;
(D) any unaudited pro forma consolidated condensed
financial statements included in the Offering Circular do not
comply as to form in all material respects with the applicable
accounting requirements or the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital
stock upon
25
exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest financial statements included in the
Offering Circular or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders'
equity or other items specified by the Purchasers, or any
increases in any items specified by the Purchasers, in each
case as compared with amounts shown in the latest balance
sheet included in the Offering Circular except in each case
for changes, increases or decreases which the Offering
Circular discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest financial
statements included in the Offering Circular to the specified
date referred to in Clause (E) there were any decreases in
consolidated net revenues or operating profit or the total or
per share amounts of consolidated net income or other items
specified by the Purchasers, or any increases in any items
specified by the Purchasers, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the Purchasers,
except in each case for decreases or increases which the
Offering Circular discloses have occurred or may occur or
which are described in such letter; and
(v) In addition to the examination referred to in their
report(s) included in the Offering Circular and the limited
procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (iv) above,
they have carried out certain specified procedures, not
constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts,
percentages and financial information specified by the
Purchasers, which are derived from the general accounting
records of the Company and its subsidiaries, which appear in
the Offering Circular, and have compared certain of such
amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and
have found them to be in agreement.
2
26
ANNEX III(a)
Form of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Opinion
27
ANNEX III(b)
Form of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ Opinion
28
ANNEX III(c)
Form of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Constant & ▇▇▇▇▇▇▇▇ Opinion
29
ANNEX III(d)
Form of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Chartered Opinion
