EXHIBIT 1.1
WESTERN WIRELESS CORPORATION
9.250% SENIOR NOTES DUE 2013
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PURCHASE AGREEMENT
July 11, 2003
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
▇.▇. ▇▇▇▇▇▇ Securities Inc.,
Wachovia Capital Markets, LLC,
As representatives of the several Purchasers
named in Schedule I hereto,
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
$600,000,000 principal amount of the 9.250% Senior Notes due 2013 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 July 8, 2003 (the
"Preliminary Offering Circular") and an offering circular, dated July 11, 2003
(the "Offering Circular"), 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 Annual Report on Form 10-K 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
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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 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 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, stockholders' equity or results
of operations of the Company and its subsidiaries, taken as a whole, 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
such as are described in the Offering Circular (including the Loan Agreement and
the Foreign Financings, each as defined in Section 1(f) below) or 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 the real property and buildings held
under lease by the Company and its subsidiaries, taken together, 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 subsidiaries listed on Schedule II attached hereto are the
only "significant subsidiaries" of the Company, as defined in Rule 1-02 of
Regulation S-X (each, a "Significant Subsidiary" and, collectively, the
"Significant Subsidiaries");
(e) The Company and each Significant Subsidiary has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is chartered or organized, with full power
and authority (corporate and other) to own, lease or operate 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;
(f) 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; and all of the issued shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and issued,
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are fully paid and nonassessable and (except for minority interests representing
less than 3% of such Significant Subsidiary or as otherwise set forth in the
Offering Circular) are owned by the Company either directly or through wholly
owned subsidiaries free and clear of any security interest, claim, lien, equity
or encumbrance other than liens granted pursuant to (i) the Loan Agreement,
dated as of April 25, 2000 (the "Loan Agreement"), as amended, among the Company
and the financial institutions named therein or (ii) any debt agreement to which
Western Wireless International Holding Corporation or its subsidiaries is a
party (the "Foreign Financings");
(g) The Securities have been duly authorized and, when executed
and authenticated in accordance with the provisions of the indenture to be dated
as of July 16, 2003 (the "Indenture") between the Company and The Bank of New
York, as Trustee (the "Trustee") and delivered to and paid for by the
Purchasers, will constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture (subject, as to the
enforcement of remedies, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors' rights and to
general equity principles); the Indenture has been duly authorized and, when
executed and delivered by the Company and the Trustee, the Indenture will
constitute 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 to the descriptions thereof in the Offering Circular and
will be in substantially the form previously delivered to you;
(h) 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 T, U and X of the Board of Governors of the Federal Reserve System;
(i) 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 reasonably have been expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities;
(j) Neither the execution and delivery of the Indenture, this
Agreement or the exchange and registration rights agreement to be dated as of
July 16, 2003 (the "Exchange and Registration Rights Agreement") between the
Company and you, as representatives of the Purchasers, the issuance and sale of
the Securities, nor the consummation of any other of the transactions herein or
therein contemplated, nor the fulfillment of the terms hereof or thereof will
conflict with, result in a breach or violation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any of its
Significant Subsidiaries pursuant to, (i) the organizational documents of the
Company or any of its Significant Subsidiaries; (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement,
shareholders agreement, registration rights agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or any of its
Significant Subsidiaries is a party or bound or to which its or their property
is subject; or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of its Significant Subsidiaries of any
court, regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or any of its Significant
Subsidiaries or any of its or their properties;
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(k) 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 or any of their
properties is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this Agreement
and the Indenture, except, in connection with the Exchange and Registrations
Rights Agreement, for the filing of a registration statement by the Company with
the Commission pursuant to the United States Securities Act of 1933, as amended
(the "Securities Act"), and the qualification of an indenture under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and such
consents, approvals, authorizations, orders, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Purchasers;
(l) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries or its or their property is pending or, to the
knowledge of the Company, threatened that (i) could reasonably be expected to
have a material adverse effect on the performance of this Agreement, the
Indenture or the Registration Rights Agreement, or the consummation of any of
the transactions contemplated hereby or thereby or (ii) could reasonably be
expected to have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business (the effects described in (i) and (ii) are referred
to herein as, a "Material Adverse Effect"), except as set forth in or
contemplated in the Offering Circular;
(m) Except as otherwise set forth in or contemplated by the
Offering Circular, neither the Company nor any of its Significant Subsidiaries
is in violation or default of (i) any provision of its organizational documents;
(ii) assuming in the case of the 10 1/2% Senior Subordinated Notes due 2006 (the
"2006 Notes") and the 10 1/2% Senior Subordinated Notes due 2007 (the "2007
Notes") that the payment of interest on the 4.625% Convertible Subordinated
Notes due 2023 does not constitute a payment of a dividend or a distribution in
respect of the Company's Capital Stock (as such term is defined in the
indentures pursuant to which the 2006 Notes and the 2007 Notes were issued), the
terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement, shareholders agreement, registration rights agreement
or other agreement, obligation, condition, covenant or instrument to which it is
a party or bound or to which its property is subject; or (iii) any statute, law,
rule, regulation, judgment, order or decree applicable to it of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over it or any of its properties, which violation
or default would, in the case of clauses (ii) and (iii) above, either
individually or in the aggregate with all other violations and defaults referred
to in this paragraph (if any), have a Material Adverse Effect;
(n) The statements under the headings "Description of Notes" in
the Offering Circular, insofar as they purport to constitute a summary of the
terms of the Securities, the Indenture and the Registration Rights Agreement,
"Certain United States Federal Income Tax Considerations" in the Offering
Circular and "Regulatory Environment," "Licensing of Wireless Communications
Systems," "Regulatory Developments" and "Governmental Regulation" in the
Company's Annual Report on Form 10-K, incorporated by reference in the Offering
Circular, insofar, in each case, as they purport to constitute a summary of the
provisions of laws and documents referred to therein, are accurate and complete
in all material respects;
(o) 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
4
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;
(p) The Company is subject to Section 13 or 15(d) of the Exchange
Act;
(q) The Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof as
described in the Offering Circular, will not be an "investment company", as such
term is defined in the United States Investment Company Act of 1940, as amended
(the "Investment Company Act"), without taking account of any exemption arising
out of the number of holders of the Company's securities;
(r) None of the Company, its affiliates or any person acting on
its or their behalf (which for purposes of this Section 1(r) shall not be deemed
to include any of the Purchasers) has offered or sold the Securities by means of
any general solicitation or general advertising within the meaning of Rule
502(c) under the Securities 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 (which for purposes of this Section 1(r)
shall not be deemed to include any of the Purchasers) has complied with and will
implement the "offering restrictions" within the meaning of such Rule 902;
(s) Within the preceding six months, neither the Company nor any
other person acting on behalf of the Company (which for purposes of this Section
1(s) shall not be deemed to include any of the Purchasers) 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;
(t) Subject to compliance by the Purchasers with the
representations, warranties and agreements set forth in Section 3 and Annex I
hereof, no registration under the Securities Act of the Securities is required
for the offer and sale of the Securities to or by the Purchasers in the manner
contemplated herein and in the Offering Circular;
(u) The consolidated historical financial statements and schedules
of the Company and its consolidated subsidiaries incorporated by reference in
the Offering Circular present fairly in all material respects the financial
condition, results of operations and cash flows of the Company as of the dates
and for the periods indicated, comply as to form with the applicable accounting
requirements of Regulation S-X and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted therein);
(v) Except as otherwise set forth in or contemplated by the
Offering Circular (exclusive of any amendment or supplement thereto), 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)
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revocation or termination thereof or result 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 a Material Adverse Effect; and, except as described in
the Offering Circular (exclusive of any amendment or supplement thereto), 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;
(w) In the ordinary course of its business, the Company
periodically reviews the effect applicable non-U.S., U.S. federal, state and
local laws and regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes, pollutants
or contaminants ("Environmental Laws") on the business, operations and
properties of the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties); on the basis of such review, the Company has
reasonably concluded that such associated costs and liabilities would not,
singly or in the aggregate, have a Material Adverse Effect, except as set forth
in or contemplated in the Offering Circular;
(x) To the knowledge of the Company, PricewaterhouseCoopers LLP,
who have certified certain financial statements of the Company and its
consolidated subsidiaries, are independent public accountants as required by the
Securities Act and the rules and regulations of the Commission thereunder;
(xi) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorizations; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences;
(xii) None of the Company, its subsidiaries or, to the knowledge of
the Company, any director, officer, agent, employee or affiliate of the Company
or any of its subsidiaries is aware of or has taken any action, directly or
indirectly, that would result in a violation by such persons of the Foreign
Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder (the "FCPA"), including, without limitation, making use of the mails
or any means or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the payment of any
money or other property, gift, promise to give, or authorization of the giving
of anything of value to any "foreign official" (as such term is defined in the
FCPA) or any foreign political party or official thereof or any candidate for
foreign political office, in contravention of the FCPA; and the Company, its
subsidiaries and, to the knowledge of the Company, their respective affiliates
have conducted their businesses in compliance with the FCPA and have instituted
and maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance therewith;
(xiii) None of the Company, any of its subsidiaries or, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of
the Company or any of its subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury ("OFAC"); and the Company will not directly or
indirectly use the proceeds from the sale of the Securities, or lend, contribute
or
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otherwise make available such proceeds to any subsidiary, joint venture partner
or other person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by OFAC; and
(xiv) The Company has not taken any action or omitted to take any
action (such as issuing any press release relating to the Securities without an
appropriate legend) which may result in the loss by any of the Purchases of the
ability to rely on any stabilization safe harbor provided by the Financial
Services Authority under the Financial Services and Markets ▇▇▇ ▇▇▇▇ (the
"FSMA"). The Company has been informed of the guidance relating to stabilization
provided by the Financial Services Authority, in particular in Section MAR 2
Annex 2G of the Financial Services Handbook.
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 97.375% of the principal amount thereof, plus accrued
interest, if any, from July 16, 2003 to the Time of Delivery (as defined below)
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 or (ii) 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) 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 wire
transfer 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 July 16, 2003 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".
(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(l) hereof, will be
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delivered at such time and date at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP: ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (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 4:00
p.m., New York City 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) 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;
(c) To furnish the Purchasers with 7 copies of the Offering
Circular and each amendment or supplement thereto signed by an authorized
officer of the Company, and additional written and electronic copies thereof in
such quantities as you may from time to time reasonably request, and if, at any
time prior to the completion of the distribution of the Securities or the
expiration of nine months after the date of the Offering Circular, whichever is
earlier, 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 reasonable request
to prepare and furnish without charge to each Purchaser and to any dealer in
securities as many written and electronic 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;
(d) 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;
(e) Not to be or become, at any time prior to the expiration of
two 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;
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(f) Until such time as none of the Securities are "restricted
securities" within the meaning of Rule 144 under the Securities Act, 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 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;
(g) If requested by you, to use commercially reasonable efforts to
cause the Securities to be eligible for the PORTAL trading system of the
National Association of Securities Dealers, Inc.;
(h) During a period of twelve months from the date of the Offering
Circular, to furnish to you upon your request copies of all reports or other
communications (financial or other) furnished to stockholders of the Company,
and to deliver to you upon your request (i) as soon as they are available,
copies of any reports and financial statements furnished to or filed with the
Commission or any securities exchange on which the Securities or any class of
securities of the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company as you 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 stockholders generally
or to the Commission);
(i) During the period of two 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; and
(j) 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) 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; (ii) the
cost of printing or producing any Agreement among Purchasers, this Agreement,
the Indenture, any 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; (iii) 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
reasonable fees and disbursements of counsel for the Purchasers in connection
with such qualification and in connection with the Blue Sky and legal investment
surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) the cost of preparing the Securities; (vi) 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;
(vii) any cost incurred in connection with the designation of the Securities for
trading in PORTAL; and (viii) 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
9
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) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company,
shall have furnished to you their written opinion, dated the Time of Delivery,
in form and substance satisfactory to you, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by the Company;
(ii) the Indenture has been duly authorized, executed and
delivered by the Company, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its terms
(subject to (x) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and (y) general principles of
equity and the discretion of the court before which any proceeding
therefor may be brought (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and an implied covenant
of good faith and fair dealing);
(iii) the Securities have been duly authorized by the
Company; the temporary global Security, when executed, authenticated,
issued and delivered in accordance with the terms of the Indenture,
will constitute a valid and legally binding and enforceable obligation
of the Company entitled to the benefits of the Indenture (subject to
(x) bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and (y) general principles of equity and
the discretion of the court before which any proceeding therefor may be
brought (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing); the Securities in definitive form, when executed,
authenticated, issued and delivered in exchange for the temporary
global Security in accordance with the terms of the Indenture, will
have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding and enforceable obligations of the
Company entitled to the benefits of the Indenture (subject to (x)
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and (y) general principles of equity and
the discretion of the court before which any proceeding therefor may be
brought (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing); and all Company actions required to authorize the
Trustee to authenticate and deliver the temporary global Security and
the Securities in definitive form under the Indenture have been taken;
(iv) the Registration Rights Agreement has been duly
authorized, executed and delivered by the Company, and constitutes a
legal, valid and binding instrument enforceable against the Company in
accordance with its terms (subject to (x) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other
10
similar laws now or hereafter in effect relating to creditors' rights
generally, and (y) general principles of equity and the discretion of
the court before which any proceeding therefor may be brought
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing);
(v) the statements set forth under the heading
"Description of Notes" in the Offering Circular, insofar as such
statements purport to summarize certain provisions of the Securities,
the Indenture and the Registration Rights Agreement, are accurate and
complete in all material respects;
(vi) no consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in
connection with the transactions contemplated in this Agreement, in the
Indenture or in the Registration Rights Agreement, except such as have
been obtained or as may be required under the Blue Sky or securities
laws of any jurisdiction in which the Securities are offered or sold
(as to which such counsel need express no opinion beyond that set forth
in paragraph (ix) below) and, in the case of the Registration Rights
Agreement, such as will be obtained under the Securities Act and the
Trust Indenture Act;
(vii) neither the execution and delivery of the Indenture,
this Agreement or the Registration Rights Agreement, the issuance and
sale of the Securities, nor the consummation of any other of the
transactions therein contemplated, nor the fulfillment of the terms
thereof, will conflict with, result in a breach or violation of, or
imposition of any lien, charge or encumbrance upon any property or
asset of the Company or of any of its Significant Subsidiaries pursuant
to, (i) the organizational documents of the Company or any of its
Significant Subsidiaries; (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement,
shareholders agreement, registration rights agreement or other
agreement, obligation, condition, covenant or instrument of which such
counsel has knowledge to which the Company or any of its Significant
Subsidiaries is a party or bound or to which its or their property is
subject; or (iii) any statute, law, rule, regulation or, to such
counsel's knowledge, judgment, order or decree applicable to the
Company or any of its Significant Subsidiaries of any court, regulatory
body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company, any of its Significant
Subsidiaries or any of their respective properties;
(viii) to such counsel's knowledge, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property that is not
adequately disclosed in the Offering Circular, except in each case for
such proceedings that, if the subject of an unfavorable decision,
ruling or finding would not singly or in the aggregate, have a Material
Adverse Effect;
(ix) assuming the accuracy of the representations and
warranties and compliance with the agreements of the Company and the
Purchasers contained in this Agreement, no registration under the
Securities Act of the Securities, and no qualification of an indenture
under the Trust Indenture Act, are required for the offer and sale by
the Purchasers of the Securities in the manner contemplated in this
Agreement and in the Offering Circular;
11
(x) 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;
(xi) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Offering Circular, will not be an
"investment company" as defined in the Investment Company Act, without
taking account of any exemption arising out of the number of holders of
the Company's securities; and
(xii) nothing has come to such counsel's attention to cause
it to believe that the Offering Circular and any amendments or
supplements thereto made by the Company prior to the Time of Delivery
(other than the financial statements and related schedules therein, as
to which such counsel need express no opinion) contained as of its date
or contains as of the Time of Delivery an untrue statement of a
material fact or omitted or omits, as the case may be, to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(b) ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, shall have
furnished to you their written opinion, dated the Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Washington, with full
corporate power and authority to own, lease or operate its properties and
conduct its business as described in the Offering Circular, and is duly
qualified to do business as a foreign corporation and is in good standing (in
jurisdictions where such concept applies) under the laws of each jurisdiction in
which it owns or leases material properties or conducts material business and
where the failure to be so qualified would, individually or in the aggregate,
have a Material Adverse Effect, except as set forth in or contemplated in the
Offering Circular;
(ii) each of the Significant Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the State of Delaware (except for WWC Texas RSA Limited Partnership
("WWC Texas LP"), which has been duly formed and is validly existing as a
limited partnership in good standing under the laws of the State of Delaware,
and WWC License LLC, which has been duly formed and is validly existing as a
limited liability company in good standing under the laws of the State of
Delaware), with full corporate (or partnership, in the case of WWC Texas LP, or
limited liability company, in the case of WWC License LLC) power and authority
to own, lease or operate its properties and conduct its business as described in
the Offering Circular, and is duly qualified to do business as a foreign
corporation (or partnership, in the case of WWC Texas LP, or limited liability
company, in the case of WWC License LLC) and is in good standing (in
jurisdictions where such concept applies) under the laws of each jurisdiction in
which it owns or leases material properties or conducts material business and
where the failure to be so qualified would, individually or in the aggregate,
have a Material Adverse Effect, except as set forth in or contemplated in the
Offering Circular;
12
(iii) all of the outstanding shares of capital stock (or,
in the case of WWC Texas LP, partnership interests, or, in the case of WWC
License LLC, membership interests) of each Significant Subsidiary have been duly
and validly authorized and issued, are fully paid and non-assessable, and,
except as otherwise set forth in the Offering Circular (and except for minority
interests representing less than 3% of such Significant Subsidiary), are owned
by the Company either directly or through wholly owned subsidiaries;
(iv) all of the outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid and
nonassessable; and
(v) this Agreement has been duly authorized, executed and
delivered by the Company; the Indenture has been duly authorized, executed and
delivered by the Company; the Securities (in both temporary and definitive form)
have been duly authorized by the Company and all Company actions required to
authorize the Trustee to authenticate and deliver the Securities (in both
temporary and definitive form) under the Indenture have been taken; and the
Registration Rights Agreement has been duly authorized, executed and delivered
by the Company.
(c) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special communications regulatory
counsel for the Company, shall have furnished to you their written opinion,
dated the Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) the Company and its subsidiaries have all Permits
from the FCC necessary to conduct their respective cellular telephone 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, the Indenture, the Securities and the Registration
Rights Agreement 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 of 1934, as amended (the "Communications
Act") or the published rules and regulations (the "FCC Rules") of the FCC 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 FCC'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, the Indenture, the Securities and the Registration Rights Agreement;
and
(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 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.
(d) ▇▇▇▇▇ Day, special tax counsel for the Company, shall have
furnished to you their written opinion, dated the Time of Delivery, to the
effect that the statements in the Offering
13
Circular under the heading "Certain United States Federal Income Tax
Considerations," insofar as they purport to summarize the provisions of law and
documents referred to therein, are accurate in all material respects.
(e) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Purchasers, shall
have furnished to you such opinion or opinions, dated the Time of Delivery, with
respect to the issuance and sale of the Securities, the Indenture, the
Registration Rights Agreement, the Offering Circular (as amended or supplemented
at the Time of Delivery) and 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 upon such matters.
(f) On the date of the Offering Circular prior to the execution of
this Agreement and also at the Time of Delivery, PricewaterhouseCoopers LLP
shall have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, confirming that
they are independent accountants within the applicable rules and regulations
adopted by the Commission and stating in effect that;
(i) in their opinion, the consolidated audited financial
statements and financial statement schedules incorporated by reference
in the Offering Circular and reported on by them comply as to form in
all material respects with the applicable sections of Regulation S-X;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; their limited review in accordance with the standards
established by the American Institute of Certified Public Accountants
under Statement on Auditing Standards No. 100 and Statement on Auditing
Standards No. 71 of the unaudited condensed consolidated financial
statements for the three-month periods ended March 31, 2003 and March
31, 2002, respectively, and as at March 31, 2003 and March 31, 2002,
respectively; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with respect
to the comments set forth in such letter; a reading of the minutes of
the meetings of the stockholders, directors and compensation and audit
committees of the Company and its subsidiaries since the date of the
latest audited consolidated financial statements incorporated by
reference in the Offering Circular; and inquiries of certain officials
of the Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions and
events subsequent to December 31, 2002, nothing came to their attention
which caused them to believe that:
(A) the unaudited condensed consolidated
financial statements referred to in clause (ii) above and incorporated
by reference in the Offering Circular do not comply as to form in all
material respects with the applicable sections of Regulation S-X or
that any material modifications should be made to said unaudited
condensed consolidated financial statements for them to be in
conformity with generally accepted accounting principles applied on a
basis substantially consistent with that of the consolidated audited
financial statements incorporated by reference in the Offering
Circular; or
(B) with respect to the period subsequent to
March 31, 2003, there were any changes, at a specified date not more
than five days prior to the date of the letter, in the long term debt
of the Company and its subsidiaries or capital stock of the
14
Company (excluding employee exercises of common stock options) as
compared with the amounts shown on the March 31, 2003 unaudited
condensed consolidated balance sheet incorporated by reference in the
Offering Circular, except in all instances for changes set forth in
such letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof unless said
explanation is not deemed necessary by you; or
(C) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature (which is
limited to accounting, financial or statistical information derived
from the general accounting records of the Company and its
subsidiaries) set forth in the Offering Circular, including the
information set forth under the caption "Ratio of Earnings to Fixed
Charges" in the Offering Circular, the information included or
incorporated by reference in Items 1, 6, 7, 7A and 11 of the Company's
Annual Report on Form 10-K, incorporated by reference in the Offering
Circular, and the information included in "Management's Discussion and
Analysis of Financial Condition and Results of Operations" included in
the Company's Quarterly Report on Form 10-Q, incorporated by reference
in the Offering Circular, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal
interpretation.
(g) (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, stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated in
the Offering Circular, the effect of which, in any such case described in clause
(i) or (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;
(h) 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;
(i) 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 California State authorities or a material
disruption in commercial banking or securities settlement or clearance services
in the United States; (iv) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war or (v) the occurrence of any other calamity or crisis or any
change in financial, political or economic conditions in the United States or
elsewhere, if the effect of any
15
such event specified in clause (iv) or (v) 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;
(j) The Securities have been designated for trading on PORTAL;
(k) The Exchange and Registration Rights Agreement shall have been
duly and validly authorized, executed and delivered by the Company; and
(l) 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 subsection (g) 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 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, 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
16
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection (a) or (b). 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 reasonably 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. The relative benefits received by the
Company on the one hand and the Purchasers on the 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
17
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed 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 9 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
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
18
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 in the case of the non-defaulting Purchasers 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 one 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 jointly or by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Purchasers shall be delivered or sent by hand, mail,
courier or facsimile transmission to you as the representatives in care of
▇▇▇▇▇▇▇, Sachs & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Registration Department; and if to the Company shall be delivered or sent by
hand, mail, courier 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.
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.
19
16. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts (including by facsimile
transmission), each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
17. The Company is authorized, subject to applicable law, to
disclose any and all aspects of this potential transaction that are necessary to
support any U.S. federal income tax benefits expected to be claimed with respect
to such transaction, and all materials of any kind (including tax opinions and
other tax analyses) related to those benefits, without the Purchasers imposing
any limitation of any kind.
If the foregoing is in accordance with your understanding, please sign
and return to us 7 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: Executive Vice President and Chief
Financial Officer
Accepted as of the date hereof:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Wachovia Capital Markets, LLC
By: /s/ ▇▇▇▇▇▇▇, Sachs & Co.
___________________________________
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
On behalf of each of the Purchasers
20
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 or Rule 144A 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), 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 represents, warrants and agrees that: (i) it
has not offered or sold and, prior to the expiry of a period of six months from
the Time of Delivery, 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; (ii) it
has only communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement to engage in investment
activity (within the meaning of section 21 of the FSMA) received by it in
connection with the issue or sale of any Securities in circumstances in which
section 21(1) of the FSMA does not apply to the Company; and (iii) it has
complied and will comply with all applicable provisions of the FSMA with respect
to anything done by it in relation to the Securities in, from or otherwise
involving the United Kingdom.
A-1
(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 ▇▇▇▇▇▇▇, Sachs & Co.'s express written consent and then only at its own
risk and expense.
A-2
SCHEDULE I
PRINCIPAL AMOUNT
OF SECURITIES
PURCHASER TO BE PURCHASED
--------- ----------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.............................................. $200,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc....................................... 200,000,000
Wachovia Capital Markets, LLC ................................... 200,000,000
------------
Total................................................... $600,000,000
============
S-1
SCHEDULE II
Significant Subsidiaries
1. WWC Texas RSA Limited Partnership (Delaware)
2. WWC License LLC (Delaware)
3. WWC Holding Co., Inc. (Delaware)
4. Western Wireless International Holding Corporation (Delaware)
5. Western Wireless International Ireland Corporation (Delaware)
6. Western Wireless International Austria Corporation (Delaware)
7. Western Wireless International Slovenia Corporation (Delaware)
8. Western Wireless International Croatia Corporation (Delaware)
S-2