EXHIBIT 99.2
NOTE REPURCHASE AGREEMENT
NOTE REPURCHASE AGREEMENT, dated as of October 28, 2002, by and among
UNITED STATES CELLULAR CORPORATION, a Delaware corporation (the "COMPANY"),
PRIMECO WIRELESS COMMUNICATIONS LLC, a Delaware limited liability company
("PRIMECO"), and the direct or indirect PrimeCo transferees identified on the
signature pages hereto (referred to herein as "PRIMECO TRANSFEREES").
RECITALS
WHEREAS, pursuant to a Note Purchase Agreement dated August 7, 2002,
between the Company and PrimeCo, on August 7, 2002, the Company issued 9% Series
A Notes due 2032 ("SERIES A NOTES") having an aggregate principal amount of
$175,000,000;
WHEREAS, the Series A Notes were issued under the Indenture, dated as
of June 1, 2002 ("BASE INDENTURE"), as supplemented by the First Supplemental
Indenture dated as of August 7, 2002 ("FIRST SUPPLEMENTAL INDENTURE" and,
together with the Base Indenture, the "INDENTURE"), between U.S. Cellular and
BNY Midwest Trust Company, an Illinois Trust Company, as Trustee ("TRUSTEE");
WHEREAS, Series A Notes having an aggregate principal amount of
$114,285,000 were issued to PrimeCo, and Series A Notes having an aggregate
principal amount of $60,715,000 were issued to LaSalle Bank National
Association, as Escrow Agent for United States Cellular Corporation/PrimeCo
Wireless Communications LLC (in its capacity as escrow agent, the "ESCROW
AGENT") pursuant to an Escrow Agreement ("ESCROW AGREEMENT"), dated as of August
7, 2002, among the Company, PrimeCo and the Escrow Agent, for the purpose of,
among other things, securing the indemnity obligations of PrimeCo to the Company
under the Purchase and Sale Agreement dated as of May 9, 2002, as amended as of
August 7, 2002, between the Company and PrimeCo (the "PURCHASE AND SALE
Agreement");
WHEREAS, in connection with the sale of the Series A Notes to PrimeCo,
the Company entered into a Registration Rights Agreement ("REGISTRATION RIGHTS
AGREEMENT") with PrimeCo, dated as of August 7, 2002, pursuant to which the
Company granted PrimeCo and the PrimeCo Transferees rights to require the
Company to take certain action to register the reoffer and resale of the Series
A Notes under the Securities Act;
WHEREAS, on August 7, 2002, the Company received a request from PrimeCo
under the Registration Rights Agreement to register Series A Notes for reoffer
and resale by PrimeCo and the PrimeCo Transferees;
WHEREAS, pursuant to such request, on August 29, 2002, the Company
filed with the Securities and Exchange Commission ("SEC") a Registration
Statement on Form S-3 (No. 333-98921) relating to the resale of the Series A
Notes ("RESALE S-3"), which registration statement, as amended, was declared
effective by the SEC on October 24, 2002;
WHEREAS, PrimeCo distributed, directly or indirectly, a portion of the
principal amount of the Series A Notes to the PrimeCo Transferees (PrimeCo and
the PrimeCo Transferees are collectively referred to as the "PRIMECO HOLDERS");
WHEREAS, the Series A Notes are currently represented by individual
certificated notes ("CERTIFICATED NOTES") registered in the name of the PrimeCo
Holders and the Escrow Agent;
WHEREAS, on May 15, 2002, the Company filed a shelf Registration
Statement on Form S-3 (No. 333-88344) relating to the offer and sale of debt
securities by the Company from time to time, which registration statement was
declared effective by the SEC on May 28, 2002 (the "PRIMARY S-3");
WHEREAS, PrimeCo, on behalf of the other PrimeCo Holders, requested the
Company to consider a proposal pursuant to which the Company would publicly
offer and sell debt securities under the Primary S-3, and use up to $175,000,000
of the proceeds thereof to repurchase the Series A Notes from the PrimeCo
Holders and the Escrow Agent; and
WHEREAS, the Company is willing to publicly offer and sell debt
securities under the Primary S-3 and use up to $175,000,000 of the net proceeds
thereof to repurchase Series A Notes from the PrimeCo Holders and the Escrow
Agent pursuant to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual agreements of the
parties hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. DEFINITIONS; INTERPRETATION
Certain capitalized terms used in this Agreement are defined in Exhibit
A. All other capitalized terms used but not defined herein shall have the
meanings set forth in the Registration Rights Agreement.
2. PRIMARY OFFERING
(a) In the sole discretion of the Company, the Company will attempt to
issue debt ("PRIMARY DEBT") in a public offering under the Primary S-3 between
October 28 and November 9, 2002 (unless extended by mutual consent of the
parties hereto), subject to the following terms and conditions (the "PRIMARY
OFFERING").
(b) The Company, in its sole discretion, will determine all terms and
conditions of the Primary Offering and the Primary Debt, including without
limitation (a) the principal amount of the Primary Debt to be issued, offered
and sold, (b) the interest rate and other terms of the Primary Debt, including
pricing, maturity, redemption and other terms, (c) the timing of the issuance,
offering, sale and closing, (d) the underwriters, (e) the terms and conditions
of any underwriting agreement, and (f) whether or not any Primary Debt should be
issued, offered, sold and closed considering market conditions and any other
factors.
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(c) The first $175,000,000 of the net proceeds to the Company from the
Primary Offering ("NET PROCEEDS") will be used by the Company to repurchase
Series A Notes from the PrimeCo Holders and the Escrow Agent pursuant to the
terms set forth below.
3. PURCHASE OF NOTES
(a) Subject to the terms and conditions of this Agreement, at the
Closing (as defined below), the Company will purchase from the Escrow Agent
and/or each PrimeCo Holder, and the Escrow Agent and/or each PrimeCo Holder will
sell to the Company, Series A Notes at the purchase price per note of (i) 100%
of the principal amount thereof, plus (ii) accrued but unpaid interest, if any,
relating to the principal amount purchased, from and including the Interest
Payment Date (as defined in the Indenture) to and including the business day
immediately preceding the Closing Date, but not including the Closing Date, less
(iii) in the case of the PrimeCo Holders but not the Escrow Agent, the
Reimbursable Expenses (as defined below) based on the percentages set forth on
Exhibit B (the "REPURCHASE PRICE").
(b) If the Net Proceeds are at least $175,000,000, the Company shall
purchase all of the aggregate principal amount of the Series A Notes from the
PrimeCo Holders and the Escrow Agent in the amounts set forth opposite their
names on Exhibit B hereto.
(c) If the Net Proceeds are at least $114,285,000 but less than
$175,000,000, the Company shall purchase all of the principal amount of the
Series A Notes from the PrimeCo Holders in the amounts set forth opposite their
names on Exhibit B hereto, and shall purchase from the Escrow Agent an aggregate
principal amount of the Series A Notes equal to the amount by which the Net
Proceeds exceed $114,285,000 in each case, rounded to the nearest $25.00;
provided, that the Company may elect, in its sole discretion, to purchase for
cash at the Repurchase Price but not including any deduction for Reimbursable
Expenses, any or all of the remaining balance of the Series A Notes held by the
Escrow Agent. If any Series A Notes are purchased from the Escrow Agent, an
amount of cash equal to the aggregate principal amount of the Series A Notes
purchased from the Escrow Agent shall be retained in escrow pursuant to the
terms of the Escrow Agreement and amount of cash equal to any accrued interest
portion of the Repurchase Price shall be delivered to PrimeCo.
(d) If the Net Proceeds are less than $114,285,000, the Company shall
purchase from the PrimeCo Holders the principal amount of Series A Notes equal
to the product of the Net Proceeds and the percentages set forth opposite their
names on Exhibit B hereto in each case, rounded to the nearest $25.00, not to
exceed the Net Proceeds in the aggregate.
(e) Any Series A Notes purchased under paragraphs (a) through (d) are
hereinafter referred to herein as the "REPURCHASED NOTES."
(f) Delivery of and payment for the Repurchased Notes (the "CLOSING")
shall be made on the third business day following the closing of the Primary
Offering, or at such time on such later date as the Company and PrimeCo shall
agree to (such date and time of delivery and payment for the Repurchased Notes
being referred to herein as the "CLOSING DATE").
(g) If the Company purchases any principal amount of Series A Notes
from the PrimeCo Holders, delivery of the Certificated Notes to be purchased
shall be made on the
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Closing Date by PrimeCo on behalf of itself and for the respective accounts of
the several PrimeCo Transferees against payment by the Company of the Repurchase
Price thereof, by wire transfer payable in same-day funds to the accounts of the
PrimeCo Holders as specified by PrimeCo. On the Closing Date, PrimeCo shall
deliver the Certificated Notes together with Assignment Forms (as defined below)
executed in blank by each of the PrimeCo Holders.
(h) If the Company purchases any principal amount of Series A Notes
from the Escrow Agent, the Company and PrimeCo shall deliver Joint Instructions
(as defined in the Escrow Agreement) to the Escrow Agent to instruct the Escrow
Agent to deliver on the Closing Date any Series A Notes to be purchased by the
Company in consideration for the Repurchase Price for such notes pursuant to
this Section 3.
(i) If less than the aggregate principal amount represented by any
Certificated Note is to be purchased, the Company shall issue and instruct the
Trustee to authenticate certificated notes in an amount equal to the difference
between the principal amount of the Certificated Note less the principal amount
of such Certificated Note purchased by the Company ("UNPURCHASED NOTES"), and on
the Closing Date shall deliver such certificated notes representing the
Unpurchased Notes to or as instructed by PrimeCo or the Escrow Agent, as the
case may be.
(j) Each PrimeCo Holder agrees to deliver to the Company such other
documentation as the Company may reasonably request in order to effectuate any
of the provisions hereof, which shall be in form and substance reasonably
satisfactory in all respects to the Company.
4. OTHER AGREEMENTS
4.1. EXPENSES.
(a) The PrimeCo Holders shall bear and pay and the Company shall have
no responsibility for any and all fees and expenses of counsel for the PrimeCo
Holders, whether incurred in connection with the Primary Offering or otherwise.
The PrimeCo Holders shall reimburse to the Company all reasonable expenses
incurred in connection with the Primary Offering, including all filing (other
than any SEC registration fees) and National Association of Securities Dealers,
Inc. fees, all rating agency fees, stock exchange listing fees, all fees and
expenses of complying with securities or blue sky laws (including fees and
expenses of underwriters counsel), all word processing, duplicating and printing
expenses, messenger and delivery expenses, and of the Company's independent
public accountants, including the expenses of "cold comfort" letters required by
or incident to the Primary Offering, any fees and disbursements of underwriters,
and including all underwriting discounts and commissions relating to the Primary
Offering ("REIMBURSABLE EXPENSES"), which shall be reimbursed on a pro rata
basis by the PrimeCo Holders based on the percentages set forth on Exhibit B;
provided that the Company shall pay all costs and expenses that the Company
determines to incur on its own behalf in its sole discretion, including (i) the
fees and expenses of the Trustee under the Indenture and counsel retained by the
Trustee, (ii) the fees and expenses of counsel to the Company and (iii) any
underwriting discounts and commissions directly related to the sale of more than
$175,000,000 of debt by the Company in the Primary Offering; PROVIDED, FURTHER,
that
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the Reimbursable Expenses with respect to the purchase of Series A Notes from
the Escrow Agent may be reimbursed to the Company by PrimeCo. The fees and
expenses of the Escrow Agent shall be paid as provided in the Escrow Agreement.
(b) The Reimbursable Expenses will be treated by the Company and the
PrimeCo Holders as a reduction in the purchase price for Chicago 20MHz, LLC
under the Purchase and Sale Agreement.
4.2. WITHDRAWAL OR AMENDMENT OF RESALE S-3.
(a) If the Company acquires all of the Series A Notes, the PrimeCo
Holders agree that the Company shall file with the SEC a request to withdraw the
Resale S-3 pursuant to Rule 477 of the Securities Act.
(b) If the Company acquires some but not all of the Series A Notes, the
PrimeCo Holders agree that the Company shall use commercially reasonable efforts
to file with the SEC within 15 days from the Closing Date a post-effective
amendment to the Resale S-3 to remove the Series A Notes purchased therefrom and
to update and disclose such information therein as may be necessary or
appropriate in order to keep the Resale S-3 current and effective.
4.3. REGISTRATION RIGHTS AGREEMENT
(a) The PrimeCo Holders agree, during the term of this Agreement, not
to take any action under the Registration Rights Agreement that is inconsistent
with the terms of this Agreement, including not to:
(i) Transfer any Series A Notes except to the Company pursuant to
this Agreement;
(ii) request the Company to file a Shelf Prospectus Supplement with
respect to a takedown from the Resale S-3; or
(iii) request the Company to file a Demand Registration Statement.
(b) If the Company completes a Primary Offering but does not acquire
100% of the Series A Notes, the PrimeCo Holders shall not effect any public sale
or distribution of Series A Notes, including a sale pursuant to Rule 144 or Rule
144A under the Securities Act, during such period ("Lock-up Period") following
the completion of the Primary Offering as may be reasonably requested in writing
to PrimeCo by the Underwriters' Representative for the Primary Offering
("LOCK-UP AGREEMENT"), which Lock-up Agreement shall be in usual and customary
form. In order to enforce the foregoing covenant, the Company shall be entitled
to impose stop-transfer instructions with respect to the Series A Notes of each
PrimeCo Holder until the end of the Lock-up Period. The PrimeCo Holders shall
have the right to make a request that the Company file a Shelf Prospectus
Supplement to effect a takedown under the Resale S-3 or Demand Registration with
respect to the Unpurchased Notes under the terms of the Registration Rights
Agreement, subject to the expiration of any Lock-up Period required by the
Underwriters'
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Representative as provided in this Section 4.3(b) and subject to the Company's
right to delay such registration statement or prospectus supplement for up to
120 days pursuant to the terms of the Registration Rights Agreement.
(c) In the event that the Company does not commence a Primary Offering
prior to November 9, 2002 (unless such date is extended by mutual agreement of
the parties hereto), the PrimeCo Holders shall be permitted to request that the
Company file (i) a Shelf Prospectus Supplement to effect a takedown under the
Resale S-3 provided that the closing of any such takedown occurs on or prior to
December 14, 2002 or (ii) a Demand Registration provided that the closing of an
offering pursuant to the Demand Registration occurs on or prior to December 14,
2002. If any such closing does not occur on or prior to December 14, 2002, the
Company shall be permitted to delay any such requests for up to 120 days
pursuant to the terms of the Registration Rights Agreement.
5. CONDITIONS TO CLOSING
The obligation of the Company to purchase and pay for the Series A
Notes with respect to each PrimeCo Holder severally and not jointly at the
Closing is subject to the fulfillment to the Company's satisfaction, prior to or
at the Closing, of the following conditions, it being understood that the
failure on the part of any one or more PrimeCo Holders ("FAILING PRIMECO
HOLDERS") to fulfill to the Company's satisfaction, prior to or at the Closing,
the conditions of this Section 5 shall not in any way affect the Company's
obligation, subject to the fulfillment to the Company's satisfaction, prior to
or at the Closing, of the conditions of this Section 5 by each non-Failing
PrimeCo Holder, to purchase and pay for Series A Notes of each such non-Failing
PrimeCo Holder:
5.1. REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the PrimeCo Holders in this
Agreement shall be correct when made and at the time of the Closing.
5.2. PERFORMANCE.
The PrimeCo Holders shall have performed and complied with all
agreements and conditions contained in this Agreement that are required to be
performed or complied with by them prior to or at the Closing.
5.3. CLOSING OF PRIMARY OFFERING.
The Primary Offering shall have been consummated and the Company shall
have received the net proceeds of such offering.
5.4. LOCK-UP AGREEMENT.
If requested by the Underwriters' Representatives, each PrimeCo Holder
or an Attorney-in-Fact thereof shall have executed and delivered a Lock-up
Agreement prior to or at the Closing in form and substance reasonably
satisfactory in all respects to the Underwriters' Representative and the
Company.
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6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to you that:
6.1. ORGANIZATION; POWER AND AUTHORITY.
The Company is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation, and is duly
qualified as a foreign corporation and is in good standing in each jurisdiction
in which such qualification is required by law, other than those jurisdictions
as to which the failure to be so qualified or in good standing could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Except as would not individually or in the aggregate reasonably
be expected to have a Material Adverse Effect, the Company has the corporate
power and authority to own or hold under lease the properties it purports to own
or hold under lease and to transact the business it transacts and proposes to
transact. The Company has the corporate power and authority to execute and
deliver this Agreement and to perform the provisions hereof.
6.2. AUTHORIZATION, ETC.
This Agreement has been duly authorized by all necessary corporate
action on the part of the Company, and this Agreement constitutes a legal, valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
6.3. COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC.
Except as would not, individually or in the aggregate reasonably be
expected to have a Material Adverse Effect, the execution, delivery and
performance by the Company of this Agreement will not (i) contravene, result in
any breach of, or constitute a default under, or result in the creation of any
Lien in respect of any property of the Company under, any indenture, mortgage,
deed of trust, loan, purchase or credit agreement, lease, corporate charter or
by-laws, or any other agreement or instrument to which the Company is bound or
by which the Company or any of its properties may be bound or affected, (ii)
conflict with or result in a breach of any of the terms, conditions or
provisions of any order, judgment, decree, or ruling of any court, arbitrator or
Governmental Authority applicable to the Company or (iii) violate any provision
of any statute or other rule or regulation of any Governmental Authority
applicable to the Company.
6.4. GOVERNMENTAL AUTHORIZATIONS, ETC.
Except as has been obtained or made, or would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect, no
consent, approval or authorization of, or registration, filing or declaration
with, any Governmental Authority is required in connection with the execution,
delivery or performance by the Company of this Agreement.
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7. REPRESENTATIONS AND WARRANTIES OF THE PRIMECO HOLDERS
Each of the PrimeCo Holders severally and not jointly and with respect
to itself only represents and warrants to the Company that:
7.1. ORGANIZATION; POWER AND AUTHORITY.
(a) If such PrimeCo Holder is an entity, that such PrimeCo Holder is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization or formation, and is duly qualified and is in
good standing in each jurisdiction in which such qualification is required by
law, other than those jurisdictions as to which the failure to be so qualified
or in good standing could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Each such PrimeCo Holder that is an
entity has the requisite power and authority to execute and deliver this
Agreement and to perform the provisions hereof.
(b) If such PrimeCo Holder is an individual, such PrimeCo Holder has
full legal capacity and the requisite power and authority to execute and deliver
this Agreement and to perform the provisions hereof.
7.2. AUTHORIZATION, ETC.
This Agreement been duly authorized by all necessary action on the part
of each PrimeCo Holder that is an entity, and this Agreement constitutes a
legal, valid and binding obligation of each PrimeCo Holder enforceable against
such PrimeCo Holder in accordance with its terms, except as such enforceability
may be limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
7.3. COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC.
Except as would not, individually or in the aggregate reasonably be
expected to have a Material Adverse Effect, the execution, delivery and
performance by such PrimeCo Holder of this Agreement will not (i) constitute a
default under, or result in the creation of any Lien in respect of any property
of such PrimeCo Holder under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or by-laws, or any other
agreement or instrument to which PrimeCo is bound or by which PrimeCo or any of
its or his respective properties may be bound or affected, (ii) conflict with or
result in a breach of any of the terms, conditions or provisions of any order,
judgment, decree, or ruling of any court, arbitrator or Governmental Authority
applicable to such PrimeCo Holder or (iii) violate any provision of any statute
or other rule or regulation of any Governmental Authority applicable to such
PrimeCo Holder.
7.4. GOVERNMENTAL AUTHORIZATIONS, ETC.
Except as has been obtained or made, or would not, individually or in
the aggregate reasonably be expected to have a Material Adverse Effect, no
consent, approval or
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authorization of, or registration, filing or declaration with, any Governmental
Authority is required in connection with the execution, delivery or performance
by such PrimeCo Holder of this Agreement.
7.5. RECEIPT OF CERTAIN INFORMATION.
Such PrimeCo Holder has received all relevant information as it deems
necessary in order to permit an investment decision with respect to the sale of
the Certificated Notes.
7.6. ACCREDITED INVESTOR.
Each Person who has the right to make, or has made or will make a
decision with respect to the sale of the Series A Notes by the Selling
Noteholder is an Accredited Investor (as defined in Regulation D under the
Securities Act), and has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits of the decision to sell the
Certificated Notes to the Company.
7.7. ARMS-LENGTH NEGOTIATED TRANSACTION REQUESTED BY PRIMECO.
Such PrimeCo Holder acknowledges that (i) PrimeCo requested the Company
to consider a repurchase of the Series A Notes from the PrimeCo Holders, (ii)
the Company did not solicit or attempt to influence in any way the decision of
such PrimeCo Holder with respect thereto and (iii) the terms of the transactions
contemplated by this Agreement have been negotiated at arms-length between the
representatives of such PrimeCo Holders and the representatives of the Company.
7.8. GOOD TITLE; NO LIENS.
Such PrimeCo Holder has, and upon the Closing, the Company shall
acquire, good and marketable title to the Repurchased Notes delivered to the
Company by such PrimeCo Holder hereunder, free and clear of all liens, security
interests, claims and other encumbrances.
7.9. EFFECT OF POWER OF ATTORNEY.
(a) Upon execution and delivery of any agreement, instrument, document
or certificate contemplated hereby by an Attorney-in-Fact (as defined below) on
behalf of such PrimeCo Holder, the PrimeCo Holder agrees to be bound by and to
perform each of the covenants and agreements of such PrimeCo Holder of each such
agreement, instrument, document or certificate contemplated thereby.
8. POWER OF ATTORNEY AND CUSTODY AGREEMENT
8.1. POWER OF ATTORNEY.
(a) Each PrimeCo Holder hereby irrevocably constitutes and appoints W.
Xxxx Xxxxxxx, Xx. and Xxxxxx X. Xxxxxxxxx, or either of them, as its or his
agents and attorneys-in-fact (either or both of them the "Attorneys-in-Facts"),
with full power and authority to act, including full power of substitution, with
respect to all matters arising in connection with this Agreement
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and the transactions contemplated hereby, including, but not limited to, the
power and authority on behalf of such PrimeCo Transferee to do or cause to be
done any of the following things:
(i) negotiate, and perform this Agreement and any amendments
thereto, including such insertions, changes, additions or
deletions as the Attorneys-in-Fact shall approve, such
approval to be conclusively evidenced by the execution and
delivery of any amendment to this Agreement or any instrument,
agreement or document contemplated hereby by the
Attorneys-in-Fact;
(ii) sell, assign, transfer and deliver for cancellation and
exchange, if applicable, pursuant to this Agreement and any
instrument, agreement or document contemplated thereby any and
all Certificated Notes and the Assignment Form;
(iii) take any and all steps and execute and perform any and all
other agreements, instruments and documents deemed necessary
or desirable by the Attorneys-in-Fact in connection with this
Agreement and give or make such undertakings, representations
and agreements and take such other steps on behalf of such
PrimeCo Holder as the Attorneys-in-Fact may deem necessary or
advisable;
(iv) instruct all other parties on behalf of such PrimeCo Holder on
all matters pertaining to this Agreement and the transactions
contemplated hereby;
(v) take all actions and do all things necessary or proper,
required, contemplated or deemed advisable by the
Attorneys-in-Fact under any instrument, agreement or document
contemplated by this Agreement, including, but not limited to,
waiving prior defaults or existing rights and delivering any
consents required under this Agreement or such instruments,
agreements and documents;
(vi) otherwise take all actions and do all things necessary or
proper, required, contemplated or deemed advisable or
desirable by the Attorneys-in-Fact in its or their sole
discretion, including the execution, delivery and performance
of any documents, instruments and agreements and generally act
for and in the name of such PrimeCo Holder with respect to
this Agreement and all related matters as fully as could such
PrimeCo Holder if then personally present and acting; and
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(vii) accept consideration payable to such PrimeCo Holder under this
Agreement, to give receipt for such consideration and remit or
authorize the Custodian to remit such consideration to such
PrimeCo Holder.
(b) The Attorneys-in-Fact are hereby empowered to determine, in its or
their sole and absolute discretion, the time or times when, the purposes for
which, and the manner in which, any power herein conferred upon the
Attorneys-in-Fact shall be exercised.
(c) The Custodian, the Company and any other persons dealing with the
Attorneys-in-Fact as such may rely and act upon any writing believed in good
faith to be signed by one or more Attorneys-in-Fact.
(d) Each PrimeCo Holder understands that the Attorneys-in-Fact assume
no responsibility or liability to the PrimeCo Holders or any other person
(except for liability for their gross negligence or willful misconduct), other
than in connection with the responsibilities delegated to the Attorneys-in-Fact
under this Section 8.1, and each PrimeCo Holder, severally and not jointly,
agrees to indemnify and hold harmless the Attorneys-in-Fact and their respective
officers, agents, successors and assigns and personal representatives, with
respect to any act or omission of or done by the Attorneys-in-Fact in good faith
in connection and in accordance with this Agreement and the instructions of this
Section 8.1.
8.2. APPOINTMENT OF CUSTODIAN; DEPOSIT OF SHARES.
(a) In connection with the transactions contemplated by this Agreement,
each PrimeCo Holder hereby appoints PrimeCo as custodian (the "CUSTODIAN") and
hereby deposits or shall promptly deposit (but in any event, no later than four
business days after the date hereof), with the Custodian, each Certificated Note
held by such PrimeCo Holder, accompanied by a duly executed Assignment Form in
the form attached to the Certificated Notes ("ASSIGNMENT FORM" and, together
with such Certificated Notes, the "INSTRUMENTS"), undated and executed in blank
and bearing the signature of such PrimeCo Holder or a duly authorized
representative thereof. Each PrimeCo Holder represents and warrants to the
Attorneys-in-Fact and the Custodian that each such Certificated Note so
deposited is in negotiable and proper deliverable form. The Custodian is hereby
authorized and directed subject to the instructions of the Attorneys-in-Fact:
(i) to hold in custody the Instruments deposited hereby, and (ii) at the
direction of the Attorneys-in-Fact to deliver the Instruments in accordance with
the terms of this Agreement.
(b) Until the Instruments have been delivered against payment therefor
in accordance with this Agreement, each PrimeCo Holder shall retain all rights
of ownership with respect to the Instruments deposited hereunder, including the
right to vote and to receive all interest or other payment thereon.
(c) Each PrimeCo Holder understands that the Custodian assumes no
responsibility or liability to the PrimeCo Holders or any other person (except
for liability for its gross negligence or willful misconduct), other than in
connection with the responsibilities delegated to the Custodian under this
Section 8.2, and each PrimeCo Holder, severally and not
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jointly, agrees to indemnify and hold harmless the Custodian and its respective
officers, agents, successors and assigns and personal representatives, with
respect to any act or omission of or done by the Custodian in good faith in
connection and in accordance with this Agreement and the instructions of this
Section 8.2.
8.3. IRREVOCABILITY.
(a) The foregoing power of attorney, custody appointment, deposit of
Instruments pursuant hereto and all authority hereby conferred, is granted, made
and conferred subject to and in consideration of and for the purpose of
completing the transactions contemplated by this Agreement and each agreement,
instrument, document or certificate contemplated hereby, and, in connection
herewith, each of the Attorneys-in-Fact and the Custodian is hereby further
vested with an estate, right, title and interest in and to the Instruments
deposited herewith for the purpose of irrevocably empowering and securing to it
authority sufficient to consummate the transactions contemplated by such
agreements. Accordingly, the agreements contained in Section 8.1 and 8.2 shall
be irrevocable prior to the termination of this Agreement in accordance with
Section 11 and shall remain in full force and effect until such time. The
undersigned further agrees that the agreements contained in Sections 8.1 and 8.2
shall not be terminated by operation of law or upon the occurrence of any event
whatsoever, including death, disability, incompetence, dissolution, winding up,
distribution of assets or other event affecting legal existence of any PrimeCo
Holder, PrimeCo or any other person, including but not limited to any executor,
personal representative or trustee of any of the foregoing. If any event
referred to in the preceding sentence shall occur, whether with or without
notice thereof to the Custodian or the Attorneys-in-Fact, the Custodian and the
Attorneys-in-Fact shall nevertheless be authorized and empowered to deliver in
accordance with the terms and provisions of the agreements contained in Sections
8.1 and 8.2 and each agreement, instrument, document or certificate contemplated
hereby and the Instruments held by the Custodian with respect to such PrimeCo
Holder, and provide for the distribution of the proceeds therefrom as if such
event has not occurred.
(b) Notwithstanding anything to the contrary contained in the
immediately preceding paragraph above, if this Agreement is terminated in
accordance with Section 11.11 the Custodian shall return promptly to each
PrimeCo Holder all Instruments deposited hereunder.
9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the purchase by the Company of the
Repurchased Notes. All statements contained in any certificate or other
instrument delivered by or on behalf of a party pursuant to this Agreement shall
be deemed representations and warranties of such party under this Agreement.
10. NOTICES
All notices and communications provided for hereunder shall be in
writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), or (b) by registered or certified mail
12
with return receipt requested (postage prepaid), or (c) by a recognized
overnight delivery service (with charges prepaid). Any such notice must be sent:
(i) if to the Company, as follows, or at such other address as the
Company shall have specified in writing:
United States Cellular Corporation
c/o Telephone and Data Systems, Inc.
00 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Fax: 000-000-0000
With a required copy to:
United States Cellular Corporation
0000 Xxxx Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile Number: (000) 000-0000
With a required copy to:
Sidley Xxxxxx Xxxxx & Xxxx
00 Xxxxx Xxxxxxxx Xx.
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. XxXxxxx, Esq.
Facsimile Number: (000) 000-0000
(ii) if to the PrimeCo Holders, to PrimeCo as follows, or at such
other address as PrimeCo shall have specified in writing:
PrimeCo Wireless Communications LLC
c/o Clarity Partners, L.P.
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Fax: 000-000-0000
With a required copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
13
Facsimile Number: (000) 000-0000
With a required copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Rise X. Xxxxxx, Esq.
Facsimile Number: (000) 000-0000
Notices under this Section 10 will be deemed given only when actually received.
11. MISCELLANEOUS
11.1. SUCCESSORS AND ASSIGNS.
All covenants and other agreements contained in this Agreement by or on
behalf of any of the parties hereto bind and inure to the benefit of their
respective successors and assigns. This Agreement may not be assigned by any
PrimeCo Holder without the written consent of the Company or by the Company
without the written consent of PrimeCo.
11.2. AMENDMENT; WAIVER.
(a) This Agreement shall not be amended or modified except by written
instrument duly executed by each of the parties hereto which, in the case of the
Company, shall require the signature of the Chairman of the Company or other
person so authorized by the Chairman of the Company or the Company's Board of
Directors.
(b) No waiver of any terms or conditions of this Agreement shall
operate as a waiver of any other breach of such terms and conditions or any
other term or condition, nor shall any failure to enforce any provision hereof
operate as a waiver of such provision or of any other provision hereof. No
written waiver hereunder, unless it by its own terms explicitly provides to the
contrary, shall be construed to effect a continuing waiver of the provisions
being waived and no such waiver in any instance shall constitute a waiver in any
other instance or for any other purpose or impair the right of the party against
whom such waiver is claimed in all other instances or for all other purposes to
require full compliance with such provision.
(c) No amendment or waiver will extend to or affect any obligation,
covenant, or agreement not expressly amended or waived or impair any right
consequent thereon. As used herein, the term "THIS AGREEMENT" and references
thereto shall mean this Agreement as it may from time to time be amended or
supplemented.
11.3. SEVERABILITY.
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition
14
or unenforceability in any jurisdiction shall (to the full extent permitted by
law) not invalidate or render unenforceable such provision in any other
jurisdiction.
11.4. CONSTRUCTION.
Where any provision herein refers to action to be taken by any Person,
or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person.
11.5. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
11.6. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, without giving effect to such State's laws
and principles regarding the conflict of laws.
11.7. INTERPRETATION
(a) References to a Person are also references to its assigns and
successors in interest (by means of merger, consolidation or sale of all or
substantially all the assets of such Person or otherwise, as the case may be).
(b) References to Series A Notes "owned" by a Person shall include
Series A Notes beneficially owned by such Person but which are held of record in
the name of a nominee, trustee, custodian, or other agent.
(c) References to a document are to it as amended, waived and otherwise
modified from time to time and references to a statute or other governmental
rule are to it as amended and otherwise modified from time to time (and
references to any provision thereof shall include references to any successor
provision).
(d) References to Sections or to Schedules or Exhibits are to sections
hereof or schedules or exhibits hereto, unless the context otherwise requires.
(e) The definitions set forth herein are equally applicable both to the
singular and plural forms and the feminine, masculine and neuter forms of the
terms defined.
(f) The term "including" and correlative terms shall be deemed to be
followed by "without limitation" whether or not followed by such words or words
of like import.
(g) The term "hereof" and similar terms refer to this Agreement as a
whole.
15
11.8. CONSENT TO JURISDICTION.
Each of the Parties hereto (a) consents to submit itself to the
personal jurisdiction of any Federal court located in the State of Delaware or
any Delaware state court in connection with any dispute that arises out of this
Agreement or any of the transactions contemplated by this Agreement, (b) agrees
that it will not attempt to deny or defeat such personal jurisdiction by motion
or other request for leave from any such court and (c) agrees that it will not
bring any action relating to this Agreement or any of the transactions
contemplated by this Agreement in any court other than a Federal court sitting
in the State of Delaware or a Delaware state court unless venue would not be
proper under rules applicable in such courts. Each of the Parties agrees that
service of process by which any action is begun in any court referred to in this
Section 11 shall be effective if notice is delivered in accordance with Section
10 and hereby irrevocably and unconditionally waives any objection to the
validity and effectiveness of such service of process. Nothing contained herein
shall affect the right of the Parties to serve process in any other manner
permitted by law.
11.9. ATTORNEYS' FEES.
In any action or proceeding brought to enforce any provision of this
Agreement, or where any provision hereof is validly asserted as a defense, the
successful party shall be entitled to recover reasonable attorneys' fees
(including any fees incurred in any appeal) in addition to its costs and
expenses and any other available remedy.
11.10. NO THIRD PARTY BENEFICIARIES.
Nothing herein expressed or implied is intended to confer upon any
Person, other than the parties hereto or their respective permitted assigns,
successors, heirs and legal representatives, any rights, remedies, obligations
or liabilities under or by reason of this Agreement.
11.11. TERMINATION.
This Agreement may be terminated at any time by a written instrument
signed by the parties hereto. Unless sooner terminated in accordance with the
preceding sentence, this Agreement (other than Sections 4.3(b), 4.3(c), 10 and
11 hereof) shall terminate in its entirety on the earlier of (unless such date
is extended by mutual agreement of the parties): (i) the date that the Company
delivers written notice to PrimeCo to the effect that it is abandoning its
efforts to commence a Primary Offering prior to November 9, 2002, (ii) November
9, 2002 if the Company has not commenced a Primary Offering prior to such date
or (iii) November 23, 2002 if the Company has commenced a Primary Offering prior
to November 9, 2002 but the closing thereof has not occurred by November 23,
2002.
* * * * *
16
IN WITNESS WHEREOF, the Parties have executed this Agreement to be
effective as of the date first above written.
UNITED STATES CELLULAR CORPORATION
By:
----------------------------------------------
Name: XxXxx X. Xxxxxxx, Xx.
Title: Chairman
By:
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President-Finance
(Chief Financial Officer) and Treasurer
PRIMECO WIRELESS COMMUNICATIONS LLC
By:
----------------------------------------------
Name: W. Xxxx Xxxxxxx
Title: Chief Financial Officer
CLARITY PARTNERS, L.P.
By: Clarity GenPar, LLC
its General Partner
By:
----------------------------------------------
Name: R. Xxxxxxx Xxxxxxxxx
Title: Managing Member
CLARITY PRIMECO HOLDINGS L.L.C.
By: Clarity Partners, L.P.
its Manager
By: Clarity GenPar, LLC
its General Partner
By:
----------------------------------------------
Name: R. Xxxxxxx Xxxxxxxxx
Title: Managing Member
PAGE 1 OF SIGNATURE PAGE TO
NOTE REPURCHASE AGREEMENT
CLARITY ADVISORS, L.P.
By: Clarity GenPar, LLC
its General Partner
By:
----------------------------------------------
Name: R. Xxxxxxx Xxxxxxxxx
Title: Managing Member
CLARITY ASSOCIATES, L.P.
By: Clarity GenPar, LLC
its General Partner
By:
----------------------------------------------
Name: R. Xxxxxxx Xxxxxxxxx
Title: Managing Member
CLARITY PRIMECO GP
By: Clarity GenPar, LLC
its Managing Partner
By:
----------------------------------------------
Name: R. Xxxxxxx Xxxxxxxxx
Title: Managing Member
CLARITY MANAGEMENT, L.P.
By: Clarity Management, LLC
its General Partner
By:
----------------------------------------------
Name: R. Xxxxxxx Xxxxxxxxx
Title: Managing Member
GREEN LEAF RIDGE ACQUISITION
COMPANY III, L.L.C.
By:
----------------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: President
PAGE 2 OF SIGNATURE PAGE TO
NOTE REPURCHASE AGREEMENT
GREEN LEAF RIDGE ACQUISITION
COMPANY IV, L.L.C.
By:
----------------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: President
GREEN LEAF CONTINENTAL, LLC
By:
----------------------------------------------
Name:
Title: Vice Chairman/Manager
PRIMECO VENTURE INVESTORS/GREEN LEAF LLC
By: SYNCOM PRIMECO IBC
Managing Member
By:
----------------------------------------------
Name:
Title:
TREGAN PARTNERS II, LP
By: TPGP, LP
By: TPGP, LLC
By:
----------------------------------------------
Name:
Title:
TREGAN PRIMECO, LP
By: TREGAN PRIMECO GP, LLC
By:
----------------------------------------------
Name:
Title:
PAGE 3 OF SIGNATURE PAGE TO
NOTE REPURCHASE AGREEMENT
PCG CHICAGO PCS, LLC
By PCG TAGI (SERIES F), LLC
its sole member
By: PACIFIC CAPITAL GROUP, INC.
its Manager
By:
----------------------------------------------
Name: Xxxxx x. Xxxxxxx
Title: Managing Director and
Chief Financial Officer
PS WIRELESS LLC
By: XXXXXXXXXXX MANAGEMENT, INC.,
as Manager
By:
----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
XXXXXXXXXXX CAPITAL, LP
By: XXXXXXXXXXX MANAGEMENT, INC.,
as General Partner
By:
----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
X.X. XXXXXX PARTNERS (BHCA), L.P.
By: JPMP MASTER FUND MANAGER, L.P.
its General Partner
By: JPMP CAPITAL CORP.
its General Partner
By:
----------------------------------------------
Name:
Title:
PAGE 4 OF SIGNATURE PAGE TO
NOTE REPURCHASE AGREEMENT
X.X. XXXXXX PARTNERS GLOBAL INVESTORS, L.P.
By: JPMP GLOBAL INVESTORS, L.P.
a General Partner
By: JPMP CAPITAL CORP.
its General Partner
By:
----------------------------------------------
Name:
Title:
X.X. XXXXXX PARTNERS GLOBAL INVESTORS
(CAYMAN), L.P.
By: JPMP GLOBAL INVESTORS, L.P.
its General Partner
By: JPMP CAPITAL CORP.
its General Partner
By:
----------------------------------------------
Name:
Title:
TRIMARAN CHICAGO PARTNERS, LLC
By: TRIMARAN FUND MANAGEMENT, LLC
its Investment Manager
By:
----------------------------------------------
Name:
Title:
J & J INVESTMENTS, INC.
By:
----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
PAGE 5 OF SIGNATURE PAGE TO
NOTE REPURCHASE AGREEMENT
----------------------------------------------
Xxxxxxx Xxxxxxxx
X.X. XXXXXX PARTNERS GLOBAL INVESTORS
(CAYMAN) II, L.P.
By: JPMP GLOBAL INVESTORS, L.P.
a General Partner
By: JPMP CAPITAL CORP.
its General Partner
By:
----------------------------------------------
Name:
Title:
X.X. XXXXXX PARTNERS GLOBAL INVESTORS
A, L.P.
By: JPMP GLOBAL INVESTORS, L.P.
a General Partner
By: JPMP CAPITAL CORP.
its General Partner
By:
----------------------------------------------
Name:
Title:
X.X. XXXXXX PARTNERS INVESTORS
(CAYMAN) V, L.P.
By: JPMP GLOBAL INVESTORS, L.P.
a General Partner
By: JPMP CAPITAL CORP.
its General Partner
By:
----------------------------------------------
Name:
Title:
PAGE 6 OF SIGNATURE PAGE TO
NOTE REPURCHASE AGREEMENT
