EXECUTION COPY
$300,000,000
WINSTAR COMMUNICATIONS, INC.
$100,000,000 14 1/2% Senior Deferred Interest Notes Due 2005
WINSTAR EQUIPMENT CORP.
$200,000,000 12 1/2% Guaranteed Senior Secured Notes Due 2004
PURCHASE AGREEMENT
March 13, 1997
CREDIT SUISSE FIRST BOSTON CORPORATION
BT SECURITIES CORPORATION
c/o Credit Suisse First Boston Corporation,
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 10010
Dear Sirs:
1. Introductory. WinStar Communications, Inc., a Delaware corporation
("WinStar"), and WinStar Equipment Corp., a Delaware corporation ("WinStar
Equipment" and, together with WinStar, the "Issuers"), propose, subject to the
terms and conditions stated herein, to issue and sell to the several initial
purchasers named in Schedule A hereto (the "Purchasers") U.S.$100,000,000
principal amount of WinStar's 14 1/2% Senior Deferred Interest Notes Due 2005
(the "Senior Notes"); and U.S.$200,000,000 principal amount of WinStar
Equipment's 12 1/2% Guaranteed Senior Secured Notes Due 2004 (the "Equipment
Notes" and, together with the Senior Notes, the "Offered Securities"). The
Equipment Notes will be unconditionally guaranteed on a senior basis (the
"Equipment Note Guarantee") by WinStar (in such capacity, the "Guarantor"). Each
of the Senior Notes and the Equipment Notes will be issued under a separate
indenture, dated as of March 1, 1997 (each, an "Indenture" and together, the
"Indentures"), between WinStar or WinStar Equipment, as the case may be, the
Guarantor, in the case of the Indenture governing the Equipment Notes, and
United States Trust Company of New York, as Trustee. The United States
Securities Act of 1933 is herein referred to as the "Securities Act."
Each of the Issuers hereby agrees with the several Purchasers as follows:
2. Representations and Warranties of the Issuers. The Issuers represent
and warrant to, and agree with, the several Purchasers that:
(a) A preliminary offering circular and an offering circular relating to
the Offered Securities to be offered by the Purchasers have been prepared by the
Issuers. Such preliminary offering circular and offering circular, as both are
supplemented as of the date of this Agreement, together with any other document
approved by the Issuers for use in connection with the contemplated resale of
the Offered Securities are hereinafter collectively referred to as the "Offering
Document". On the date of this Agreement, the Offering Document does not include
any 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, not misleading. The preceding sentence
does not apply to statements in or omissions from the Offering Document based
upon written information furnished to the Issuers by any Purchaser through
Credit Suisse First Boston Corporation ("CSFBC") specifically for use therein,
it being understood and agreed that the only such information is that described
as such in Section 7(b). WinStar's Annual Report on Form 10-KSB most recently
filed with the Securities and Exchange Commission (the "Commission") and all
subsequent reports (collectively, the "Exchange Act Reports") which have been
filed by WinStar with the Commission or sent to stockholders pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act"), when they were filed with
the Commission, conformed in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder.
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(b) Each of the Issuers has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its business as
described in the Offering Document; and each of the Issuers is duly qualified to
do business as a foreign corporation in good standing in all other jurisdictions
in which its ownership or lease of property or the conduct of its business
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
condition (financial or other), business, properties or results of operations of
each of the Issuers and their respective subsidiaries, taken as a whole (a
"Material Adverse Effect"). WinStar is qualified to do business as a foreign
corporation in the State of New York. WinStar Equipment is qualified to do
business as a foreign corporation in the States of Nevada and New York.
(c) Each subsidiary of the Issuers has been duly incorporated and is an
existing corporation in good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own its properties and
conduct its business as described in the Offering Document; and each subsidiary
of the Issuers is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not have a
Material Adverse Effect; all of the issued and outstanding capital stock of each
subsidiary of the Issuers has been duly authorized and validly issued and is
fully paid and nonassessable; and the capital stock of each subsidiary owned by
the Issuers, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(d) Each of the Indentures and the Registration Rights Agreement has been
duly authorized; the Offered Securities have been duly authorized; and when the
Offered Securities are delivered and paid for pursuant to this Agreement on the
Closing Date (as defined below), the Indentures and the Registration Rights
Agreement will have been duly executed and delivered, such Offered Securities
will have been duly executed, authenticated, issued and delivered and will
conform, in all material respects, to the description thereof contained in the
Offering Document and the Indentures, the Registration Rights Agreement and such
Offered Securities will constitute valid and legally binding obligations of the
Issuers, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles; and, with respect to the Registration Rights Agreement,
except that rights to indemnity and contribution may be limited by federal and
state securities laws and public policy considerations.
(e) Except as contemplated by this Agreement or as disclosed in the
Offering Document, there are no contracts, agreements or understandings between
the Issuers and any person that would give rise to a valid claim against the
Issuers or any Purchaser for a brokerage commission, finder's fee or other like
payment in connection with the transactions contemplated by this Agreement.
(f) No consent, approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required for the consummation of the
transactions contemplated by this Agreement in connection with the issuance and
sale of the Offered Securities by the Issuers, other than as may be required
under the Securities Act and the Rules and Regulations of the Commission
thereunder with respect to the Registration Rights Agreement among the Issuers
and the Purchasers dated the date hereof (the "Registration Rights Agreement")
and the transactions contemplated thereunder, and such as may be required by
securities or blue sky laws of any state of the United States or of any foreign
jurisdiction in connection with the offer and sale of the Offered Securities.
(g) The execution, delivery and performance of the Indentures, the
Registration Rights Agreement and this Agreement, and the issuance and sale of
the Offered Securities and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms and provisions of, or
constitute a default under, (i) any statute, rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over either of the Issuers or any subsidiary of either of the
Issuers or any of their properties, (ii) any agreement or instrument to which
either of the Issuers or any such subsidiary is a party or by which either of
the Issuers or any such subsidiary is bound or to which any of the properties of
either of the Issuers or any such subsidiary is subject, or (iii) the charter or
by-laws of either of the Issuers or any such subsidiary, except, in the case of
clause (i) or (ii), such breaches, violations or defaults that individually or
in the aggregate would not have a Material Adverse Effect; and each of the
Issuers has full corporate power and authority to authorize, issue and sell the
Offered Securities to be sold by such Issuer as contemplated by this Agreement.
(h) This Agreement has been duly authorized, executed and delivered by
each of the Issuers.
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(i) Except as disclosed in the Offering Document, the Issuers and their
subsidiaries have good and marketable title to all real properties and all other
properties and assets owned by them, in each case free from liens, encumbrances
and defects that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by them; and except as
disclosed in the Offering Document, the Issuers and their subsidiaries hold any
leased real or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to be made
thereof by them.
(j) The Issuers and their subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by them and have not received any
notice of proceedings relating to the revocation or modification of any such
certificate, authority or permit that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(k) No labor dispute with the employees of the Issuers or any of their
subsidiaries exists or, to the knowledge of the Issuers, is imminent that could
reasonably be expected to have a Material Adverse Effect.
(l) The Issuers and their subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "intellectual property rights") necessary
to conduct the business as now operated by them, or used in the conduct of the
business as now operated by them, except to the extent that the failure to own
or possess or the inability to acquire such intellectual property rights would
not individually or in the aggregate have a Material Adverse Effect; and the
Issuers have not received any notice of infringement of or conflict with
asserted rights of others with respect to any intellectual property rights that,
if determined adversely to the Issuers or any of their subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(m) Except as disclosed in the Offering Document, neither the Issuers nor
any of their subsidiaries is in violation of any statute, rule, regulation,
decision or order of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the environment or
human exposure to hazardous or toxic substances (collectively, "environmental
laws"), owns or operates any real property contaminated with any substance that
is subject to any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any claim
relating to any environmental laws, which violation, contamination, liability or
claim would individually or in the aggregate have a Material Adverse Effect; and
the Issuers are not aware of any pending investigation which might lead to such
a claim.
(n) Except as disclosed in the Offering Document, there are no pending
actions, suits or proceedings against or affecting the Issuers, any of their
subsidiaries or any of their respective properties that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect, or to
materially and adversely affect the ability of either of the Issuers to perform
its obligations under any of the Indentures, the Registration Rights Agreement
or this Agreement, or which are otherwise material in the context of the sale of
the Offered Securities; and to the Issuers' knowledge, no such actions, suits or
proceedings are threatened or contemplated.
(o) The financial statements included in the Offering Document present
fairly the financial position of WinStar and its consolidated subsidiaries as of
the dates shown and their results of operations and cash flows for the periods
shown, and such financial statements have been prepared in conformity with
generally accepted accounting principles in the United States applied on a
consistent basis; and the assumptions used in preparing the pro forma financial
statements included in the Offering Document provide a reasonable basis for
presenting the significant effects directly attributable to the transactions or
events described therein, the related pro forma adjustments give appropriate
effect to those assumptions, and the pro forma columns therein reflect the
proper application of those adjustments to the corresponding historical
financial statement amounts.
(p) Except as disclosed in the Offering Document, since the date of the
latest audited financial statements included in the Offering Document, there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of either of the Issuers and its
subsidiaries taken as a whole (it being understood that a change in WinStar's
stock price or the continuation of operating losses consistent with WinStar's
historical results shall be deemed not to be, in and of itself, such a material
adverse change), and, except as disclosed in or contemplated by the Offering
Document, there has been no dividend or distribution of any kind declared, paid
or made by the Issuers on any class of their capital stock.
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(q) Neither of the Issuers is an open-end investment company, unit
investment trust or face-amount certificate company that is or is required to be
registered under Section 8 of the United States Investment Company Act of 1940
(the "Investment Company Act"), nor are either of them a closed-end investment
company required to be registered, but not registered, thereunder; and neither
of the Issuers is and, after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof as described in
the Offering Document, will be an "investment company" as defined in the
Investment Company Act.
(r) No securities of the same class (within the meaning of Rule 144A(d)(3)
under the Securities Act) as the Offered Securities are listed on any national
securities exchange registered under Section 6 of the Exchange Act or quoted in
a U.S. automated inter-dealer quotation system.
(s) The offer and sale of the Offered Securities in the manner
contemplated by this Agreement will be exempt from the registration requirements
of the Securities Act; and it is not necessary to qualify an indenture in
respect of the Offered Securities under the United States Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), other than in connection with the
Issuers' obligations under the Registration Rights Agreement.
(t) Neither the Issuers, nor any of their affiliates, nor any person
acting on its or their behalf (i) has, within the six-month period prior to the
date hereof, offered or sold in the United States or to any U.S. person (as such
terms are defined in Regulation S under the Securities Act) the Offered
Securities or any security of the same class or series as the Offered Securities
or (ii) has offered or will offer or sell the Offered Securities (A) in the
United States by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act or (B)
with respect to any such securities sold in reliance on Rule 903 of Regulation S
("Regulation S") under the Securities Act, by means of any directed selling
efforts within the meaning of Rule 902(b) of Regulation S. The Issuers, their
affiliates and any person acting on their behalf have complied and will comply
with the offering restrictions requirement of Regulation S. The Issuers have not
entered and will not enter into any contractual arrangement with respect to the
distribution of the Offered Securities except for this Agreement.
(u) WinStar is subject to Section 13 or 15(d) of the Exchange Act.
(v) The use of the proceeds by WinStar Equipment from the offering of the
Equipment Notes, as contemplated by Section 4.21 of the indenture governing the
Equipment Notes, is specifically permitted by the indentures each dated as of
October 23, 1995, between WinStar and the United States Trust Company of New
York, as trustee, in respect of WinStar's $150,000,577 14% Senior Discount Notes
due 2005 and $75,000,289 14% Convertible Senior Subordinated Discount Notes due
2005 (together, the "Old Indentures").
(w) The Issuers and their subsidiaries are in compliance in all material
respects with the Communications Act of 1934, as amended by the
Telecommunications Act of 1996 (the "Communications Act") and with all
applicable rules, regulations and policies of the Federal Communications
Commission (the "FCC").
(x) The Issuers have provided to the Purchasers a complete and accurate
list of all licenses granted to the issuers and their subsidiaries (other than
experimental licenses in the 31 GHz and 38 GHz portion of the radio spectrum and
licenses acquired from Local Area Telecommunications, Inc. that are not in the
38 GHz portion of the radio spectrum) by the FCC (the "Licenses"). All of the
Licenses are currently valid and in full force and effect. Neither of the
Issuers nor any of their subsidiaries have any knowledge of any investigation,
notice of apparent liability, violation, forfeiture or other order or complaint
issued by or before any court or regulatory body, including the FCC, or of any
other proceedings (other than proceedings relating to the wireless
communications industries generally) which could in any manner materially
threaten or adversely affect the validity or continued effectiveness of any of
the Licenses.
(y) No event has occurred which (i) results in, or after notice or lapse
of time or both would result in, revocation, suspension, adverse modification,
non-renewal, impairment, restriction or termination of, or order of forfeiture
with respect to, any License or (ii) materially and adversely affects or could
reasonably be expected in the future to materially adversely affect any of the
rights of the Issuers or any of their subsidiaries thereunder.
(z) The Issuers and their subsidiaries have duly filed in a timely manner
all material filings, reports, applications, documents, instruments and
information required to be filed by them under the Communications Act, and all
such filings are true, correct and complete in all material respects.
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(aa) Neither of the Issuers or any of their subsidiaries have any reason
to believe that any of the Licenses will not be renewed in the ordinary course.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Issuers agree to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Issuers, the respective principal amounts of Offered Securities set
forth opposite the names of the several Purchasers in Schedule A hereto, at a
purchase price of 96 1/2% of the principal amount thereof for Senior Notes, and
97% of the principal amount thereof for Equipment Notes, in each case plus
accrued interest (if any) from March 18, 1997 to the Closing Date (as
hereinafter defined).
The Issuers will deliver against payment of the purchase price the
Offered Securities in the form of one or more permanent global securities in
definitive form (the "Global Securities") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent Global Securities
will be held only in book-entry form through DTC, except in the limited
circumstances described in the Offering Document. Payment for the Offered
Securities shall be made by the Purchasers in Federal (same day) funds by wire
transfer to an account previously designated to CSFBC by WinStar at a bank
acceptable to CSFBC, at the office of Cravath, Swaine & Xxxxx, Worldwide Plaza,
000 Xxxxxx Xxxxxx, Xxx Xxxx, X.X. 10019-7475 at 10:00 A.M. (New York time), on
March 18, 1997, or at such other time not later than seven full business days
thereafter as CSFBC and the Issuers determine, such time being herein referred
to as the "Closing Date", against delivery to the Trustee as custodian for DTC
of the Global Securities representing all of the Offered Securities. The Global
Securities will be made available for checking at the offices of Cravath, Swaine
& Xxxxx at least 24 hours prior to the Closing Date.
4. Representations and Agreements by Purchasers; Resale by Purchasers.
(a) Each Purchaser severally represents and warrants to the Issuers that
it is an "accredited investor" within the meaning of Regulation D under the
Securities Act.
(b) Each Purchaser severally acknowledges that the Offered Securities have
not been 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 or pursuant to an exemption from the
registration requirements of the Securities Act. Each Purchaser severally
represents and agrees that it has offered and sold the Offered Securities, and
will offer and sell the Offered Securities (i) as part of its distribution at
any time and (ii) otherwise until 40 days after the later of the commencement of
the offering and the Closing Date, only in accordance with Rule 903 or Rule 144A
under the Securities Act ("Rule 144A"). Accordingly, neither such Purchaser nor
its affiliates, nor any persons acting on its or their behalf, have engaged or
will engage in any directed selling efforts with respect to the Offered
Securities, and such Purchaser, its affiliates and all persons acting on its or
their behalf have complied and will comply with the offering restrictions
requirement of Regulation S. Each Purchaser severally agrees that, at or prior
to confirmation of sale of the Offered Securities, other than a sale pursuant to
Rule 144A, such Purchaser will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases the
Offered 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 or
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 date 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."
Unless otherwise defined herein, terms used in this subsection (b) have the
meanings given to them by Regulation S.
(c) Each Purchaser severally agrees that it and each of its affiliates has
not entered and will not enter into any contractual arrangement with respect to
the distribution of the Offered Securities except for any such arrangements with
the other Purchasers or affiliates of the other Purchasers or with the prior
written consent of the Issuers.
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(d) Each Purchaser severally agrees that it and each of its affiliates
will not offer or sell the Offered Securities in the United States by means of
any form of general solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act, including, but not limited to (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio, or
(ii) any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. Each Purchaser severally agrees, with
respect to resales made in reliance on Rule 144A of any of the Offered
Securities, to deliver either with the confirmation of such resale or otherwise
prior to settlement of such resale a notice to the effect that the resale of
such Offered Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
(e) Each of the Purchasers severally represents and agrees that (i) it has
not offered or sold and prior to the date six months after the date of issue of
the Offered Securities will not offer or sell any Offered 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 complied and will comply with all applicable provisions of the
Financial Services Act 1986 with respect to anything done by it in relation to
the Offered Securities in, from or otherwise involving the United Kingdom; and
(iii) it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the issue of the
Offered Securities to a person who is of a kind described in Article 11(3) of
the Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order
1996 or is a person to whom such document may otherwise lawfully be issued or
passed on.
(f) Each Purchaser agrees that promptly following the completion of its
initial resale of all the Offered Securities purchased by such Purchaser
pursuant to this Agreement, it will notify the Issuers in writing thereof.
5. Certain Agreements of the Issuers. The Issuers agree with the several
Purchasers that:
(a) The Issuers will advise CSFBC promptly of any proposal to amend or
supplement the Offering Document and will not effect such amendment or
supplementation without CSFBC's consent (which consent shall not be unreasonably
withheld). If, at any time prior to the completion of the resale of the Offered
Securities by the Purchasers, any event occurs as a result of which the Offering
Document 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, not misleading, or if it is necessary at any such time to amend or
supplement the Offering Document to comply with any applicable law, the Issuers
promptly will notify CSFBC of such event and promptly will prepare, at their own
expense, an amendment or supplement which will correct such statement or
omission or effect such compliance. Neither CSFBC's consent to, nor the
Purchasers' delivery to offerees or investors of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 6.
(b) The Issuers will furnish to CSFBC copies of any preliminary offering
circular, the Offering Document and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as CSFBC
reasonably requests, and the Issuers will furnish to CSFBC on the Closing Date
three copies of the Offering Document signed by a duly authorized officer of
each of the Issuers, one of which will include the independent accountants'
reports therein manually signed by such independent accountants. At any time
when either of the Issuers is not subject to Section 13 or 15(d) of the Exchange
Act, such Issuer will promptly furnish or cause to be furnished to CSFBC (and,
upon request, to each of the other Purchasers) and, upon request of holders and
prospective purchasers of the Offered Securities, to such holders and
purchasers, copies of the information required to be delivered to holders and
prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4)
under the Securities Act (or any successor provision thereto) in order to permit
compliance with Rule 144A in connection with resales by such holders of the
Offered Securities. WinStar will pay the expenses of printing and distributing
to the Purchasers all such documents.
(c) The Issuers will use their best efforts to arrange for the
qualification of the Offered Securities for sale and the determination of their
eligibility for investment under the laws of such jurisdictions in the United
States and Canada as CSFBC reasonably designates and will continue such
qualifications in effect so long as required for the resale of the Offered
Securities by the Purchasers; provided, however, that the
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Issuers will not be required to qualify as foreign corporations or to file a
general consent to service of process in any such state.
(d) During the period of five years after the Closing Date, the Issuers
will furnish to CSFBC and, upon request, to each of the other Purchasers, as
soon as practicable after the end of each fiscal year, a copy of WinStar's
annual report to stockholders for such year; and the Issuers will furnish to
CSFBC and, upon request, to each of the other Purchasers (i) as soon as
available, a copy of each report and any definitive proxy statement of either of
the Issuers filed with the Commission under the Exchange Act or mailed to
stockholders and (ii) from time to time, such other publicly available
information concerning the Issuers as CSFBC may reasonably request.
(e) During the period of two years after the Closing Date, the Issuers
will, upon request, furnish to CSFBC, each of the other Purchasers and any
holder of Offered Securities a copy of the restrictions on transfer applicable
to the Offered Securities.
(f) During the period of two years after the Closing Date, the Issuers
will not, and will not permit any of their affiliates (as defined in Rule 144
under the Securities Act) to, resell any of the Offered Securities that have
been reacquired by any of them.
(g) During the period of two years after the Closing Date, neither of the
Issuers will be or become, an open-end investment company, unit investment trust
or face-amount certificate company that is or is required to be registered under
Section 8 of the Investment Company Act, and neither of the Issuers is, or will
be or become, a closed-end investment company required to be registered, but not
registered, under the Investment Company Act.
(h) WinStar will pay all expenses incidental to the performance of the
Issuers' obligations under this Agreement and the Indentures, including (i) the
fees and expenses of the Trustee and its professional advisers; (ii) all
expenses in connection with the execution, issue, authentication, packaging and
initial delivery of the Offered Securities, the preparation and printing of this
Agreement, the Offered Securities, the Indentures, the Offering Document and
amendments and supplements thereto, and any other document relating to the
issuance, offer, sale and delivery of the Offered Securities; (iii) the cost of
qualifying the Offered Securities for trading in the Private Offerings, Resale
and Trading through Automated Linkages (PORTAL) market and any expenses
incidental thereto; (iv) the cost of any advertising approved by the Issuers in
connection with the issue of the Offered Securities; (v) any expenses (including
fees and disbursements of counsel) incurred in connection with qualification of
the Offered Securities for sale under the laws of such jurisdictions in the
United States and Canada as CSFBC designates and the printing of memoranda
relating thereto; (vi) any fees charged by investment rating agencies for the
rating of the Offered Securities; and (vii) all expenses incurred in
distributing preliminary offering circulars and the Offering Document (including
any amendments and supplements thereto) to the Purchasers. The Issuers will also
pay or reimburse the Purchasers (to the extent incurred by them) for all travel
expenses of the Issuers' officers and employees and any other expenses of the
Issuers in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities from the Purchasers.
(i) In connection with the offering, until CSFBC shall have notified the
Issuers and the other Purchasers of the completion of the resale of the Offered
Securities, neither the Issuers nor any of their affiliates has or will (unless
required by the terms of the applicable indenture governing such Offered
Securities), either alone or with one or more other persons, bid for or purchase
for any account in which it or any of its affiliates has a beneficial interest
any Offered Securities or attempt to induce any person to purchase any Offered
Securities; and neither it nor any of its affiliates will make bids or purchases
for the purpose of creating actual, or apparent, active trading in, or of
raising the price of, the Offered Securities.
(j) Prior to the Closing Date, the Issuers will not offer, sell, contract
to sell, pledge or otherwise dispose of, directly or indirectly, any United
States dollar-denominated debt securities issued or guaranteed by the Issuers
and having a maturity of more than one year from the date of issue, or publicly
disclose the intention to make any such offer, sale, pledge or disposal, without
the prior written consent of CSFBC. The Issuers will not at any time offer,
sell, contract to sell, pledge or otherwise dispose of, directly or indirectly,
any securities under circumstances where such offer, sale, pledge, contract or
disposition would cause the exemption afforded by Section 4(2) of the Securities
Act or the safe harbor of Regulation S thereunder to cease to be applicable to
the offer and sale of the Offered Securities.
(k) The Issuers will cause each Offered Security to bear the legend set
forth in the form of Note attached as Exhibit 1 to the Rule 144A/Regulation S
Appendix to the relevant Indenture until such legend
8
shall no longer be necessary or advisable because the Offered Securities are no
longer subject to the restrictions on transfer described therein.
(l) The proceeds to WinStar Equipment from the offering of the Equipment
Notes will be used only, as contemplated by Section 4.21 of the Indenture
governing the Equipment Notes, to purchase equipment or inventory specifically
permitted to be purchased with such proceeds by the Old Indentures.
6. Conditions of the Obligations of the Purchasers. The obligations of the
several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Issuers herein, to the accuracy of the statements of officers of the Issuers
made pursuant to the provisions hereof, to the performance by the Issuers of
their obligations hereunder and to the following additional conditions
precedent:
(a) The Purchasers shall have received a letter, dated the date of this
Agreement, of Xxxxx Xxxxxxxx LLP, in agreed form, confirming that they are
independent public accountants within the meaning of the Securities Act and the
applicable published rules and regulations thereunder ("Rules and Regulations")
and stating to the effect that:
(i) in their opinion the financial statements examined by them and
included in the Offering Document comply as to form in all material respects
with the applicable accounting requirements of the Securities Act and the
related published Rules and Regulations;
(ii) on the basis of a reading of the latest available interim financial
statements of the Issuers, inquiries of certain officials of WinStar who have
responsibility for financial and accounting matters and other specified
procedures, nothing came to their attention that caused them to believe that:
(A) at March 7, 1997, there was any change in the capital stock or
paid-in capital, increase in long-term debt or any decreases in
consolidated net current assets or stockholders' equity of the
consolidated companies as compared with amounts shown on the December 31,
1996 audited consolidated balance sheet included in the Offering Document;
or
(B) for the period from January 1, 1997 to March 7, 1997, there were
any decreases, as compared with the corresponding period in the preceding
year, in consolidated operating revenues or in the total or per-share
amounts of net loss;
except in all cases set forth in clauses (A) and (B) above for changes,
increases or decreases which the Offering Document discloses have occurred or
may occur or which are described in such letter; and
(iii) they have compared specified dollar amounts (or percentages derived
from such dollar amounts) and other financial information contained in the
Offering Document (in each case to the extent that such dollar amounts,
percentages and other financial information are derived from the general
accounting records of WinStar and its subsidiaries subject to the internal
controls of WinStar's accounting system or are derived directly from such
records by analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures specified in
such letter and have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise specified
in such letter.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) a change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange controls
as would, in the judgment of CSFBC, be likely to prejudice materially the
success of the proposed issue, sale or distribution of the Offered Securities,
whether in the primary market or in respect of dealings in the secondary market,
or (ii) (A) any change, or any development or event involving a prospective
change, in the condition (financial or other), business, properties or results
of operations of either of the Issuers or their subsidiaries which, in the
judgment of CSFBC, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the offering or the sale of and
payment for the Offered Securities (it being understood that a change in
WinStar's stock price or the continuation of operating losses consistent with
WinStar's historical results shall be deemed not to be, in and of itself, a
material adverse change); (B) any downgrading in the rating of any debt
securities of either of the Issuers by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Securities Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of either of the
Issuers (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating); (C)
any suspension or limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum
9
prices for trading on such exchange, or any suspension of trading of any
securities of either of the Issuers on any exchange or in the over-the-counter
market; (D) any banking moratorium declared by U.S. Federal or New York
authorities; or (E) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the judgment
of CSFBC, the effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with completion of the
offering or sale of and payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated the Closing Date,
of Graubard Xxxxxx & Xxxxxx, counsel for the Issuers, substantially to the
effect that:
(i) Each of the Issuers has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its business as
described in the Offering Document;
(ii) Each of the Indentures and the Registration Rights Agreement has been
duly authorized, executed and delivered; the Offered Securities have been duly
authorized, executed, authenticated, issued and delivered and conform in all
material respects to the description thereof contained in the Offering Document;
and the Indentures, the Offered Securities and the Registration Rights Agreement
constitute valid and legally binding obligations of the Issuers enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
and, with respect to the Registration Rights Agreement, except that rights to
indemnity and contribution may be limited by federal and state securities laws
and public policy considerations;
(iii) Neither of the Issuers is and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds thereof
as described in the Offering Document, will be an "investment company" as
defined in the Investment Company Act;
(iv) No consent, approval, authorization or order of, or filing with, any
governmental agency or body or any court is required for the consummation of the
transactions contemplated by this Agreement in connection with the issuance or
sale of the Offered Securities by the Issuers and the consummation of the
transactions under the Registration Rights Agreement, other than as may be
required under the Securities Act and the Rules and Regulations of the
Commission thereunder with respect to the Registration Rights Agreement and the
transactions contemplated thereunder and such as may be required by securities
or blue sky laws of the various states of the United States and of foreign
jurisdictions in connection with the offer and sale of the Offered Securities;
(v) The execution, delivery and performance of the Indentures, the
Registration Rights Agreement and this Agreement, and the issuance and sale of
the Offered Securities and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms and provisions of, or
constitute a default under, (A) any statute, rule or regulation or any order
known to such counsel of any governmental agency or body or any court having
jurisdiction over either of the Issuers or any subsidiary of the Issuers or any
of their properties, (B) any agreement or instrument listed as an exhibit to
WinStar's Annual Report on Form 10-KSB most recently filed with the Commission
or listed as an exhibit to or filed with any subsequent reports filed by WinStar
under the Exchange Act through December 31, 1996, to which either of the Issuers
or any such subsidiary is a party or by which either of the Issuers or any such
subsidiary is bound or to which any of the properties of either of the Issuers
or any such subsidiary is subject, or (C) the charter or by-laws of either of
the Issuers or any such subsidiary, except, in the case of clause (A) or (B),
breaches, violations or defaults that individually or in the aggregate would not
have a Material Adverse Effect; and each of the Issuers has full power and
corporate authority to authorize, issue and sell the Offered Securities to be
sold by such Issuer as contemplated by this Agreement;
(vi) Such counsel have no reason to believe that the Offering Document, or
any amendment or supplement thereto, as of the date hereof and as of the Closing
Date, contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; it being understood that such counsel need express no opinion as to
the financial statements or other financial data contained in the Offering
Document;
(vii) The descriptions in the Offering Document of statutes, legal and
governmental proceedings and contracts and other documents are accurate in all
material respects and fairly present the information purported to be described
therein;
10
(viii) This Agreement has been duly authorized, executed and delivered by
each of the Issuers;
(ix) Based upon the accuracy of the representations and warranties of the
Issuers set forth in Section 2(t) of this Agreement and of the Purchasers in
Section 4 hereof, it is not necessary in connection with (i) the offer, sale and
delivery of the Offered Securities by the Issuers to the several Purchasers
pursuant to this Agreement or (ii) the resales of the Offered Securities by the
several Purchasers in the manner contemplated by this Agreement, to register the
Offered Securities under the Securities Act or to qualify an indenture in
respect thereof under the Trust Indenture Act, other than in connection with the
Issuers' obligations under the Registration Rights Agreement.
(x) To the best of such counsel's knowledge, the Issuers and their
subsidiaries are in compliance in all material respects with all material terms
and conditions of each License and with all applicable and material rules,
regulations and policies of the FCC pertaining to the Licenses.
(xi) To the best of such counsel's knowledge, all of the Licenses are
currently valid and in full force and effect, and there is no investigation,
notice of apparent liability, violation, forfeiture or other order or complaint
issued by or before any court or regulatory body, including the FCC, or of any
other proceedings (other than proceedings relating to the wireless
communications industries generally) which could in any manner materially
threaten or adversely affect the validity or continued effectiveness of any of
the Licenses.
(xii) To the best of such counsel's knowledge, no event has occurred which
(i) results in, or after notice or lapse of time or both would result in,
revocation, suspension, adverse modification, non-renewal, impairment,
restriction or termination of, or order of forfeiture with respect to, any
License or (ii) materially and adversely affects or could reasonably be expected
in the future to materially adversely affect any of the rights of the Issuers or
any of their subsidiaries thereunder.
(xiii) To the best of such counsel's knowledge, the Issuers and their
subsidiaries have duly filed in a timely manner all material filings, reports,
applications, documents, instruments and information required to be filed by
them under the Communications Act pertaining to the Licenses.
(xiv) To the best of such counsel's knowledge, there is no reason to
believe that any of the Licenses will not be renewed in the ordinary course.
The opinions set forth in clauses (x), (xi), (xii), (xiii) and (xiv) may
be given by Xxxxxxx Xxxx & Xxxxxxxxx, counsel to the Issuers on FCC matters.
(d) The Purchasers shall have received from Cravath, Swaine & Xxxxx,
counsel for the Purchasers, such opinion or opinions, dated the Closing Date,
with respect to the incorporation of the Issuers, the validity of the Offered
Securities, the Offering Document, the exemption from registration for the offer
and sale of the Offered Securities by the Issuers to the several Purchasers and
the resales by the several Purchasers as contemplated hereby and other related
matters as CSFBC may reasonably require, and the Issuers shall have furnished to
such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(e) The Purchasers shall have received a certificate, dated the Closing
Date, of the Chief Executive Officer or any Vice President and a principal
financial or accounting officer of each of the Issuers in which such officers,
to the best of their knowledge after reasonable investigation, shall state that
the representations and warranties of such Issuer in this Agreement are true and
correct, that such Issuer has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date, and that, subsequent to the dates of the most recent financial
statements in the Offering Document there has been no material adverse change,
nor any development or event involving a prospective material adverse change, in
the condition (financial or other), business, properties or results of
operations of such Issuer and its subsidiaries taken as a whole except as set
forth in or contemplated by the Offering Document or as described in such
certificate.
(f) The Purchasers shall have received a letter, dated the Closing Date,
of Xxxxx Xxxxxxxx LLP which meets the requirements of subsection (a) of this
Section, except that the specified date referred to in such subsection will be a
date not more than five days prior to the Closing Date for the purposes of this
subsection.
The Issuers will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFBC may in its sole discretion waive on
11
behalf of the Purchasers compliance with any conditions to the obligations of
the Purchasers hereunder, whether in respect of the Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Issuers will jointly and
severally 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 the Exchange Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any breach of any of the representations and
warranties of the Issuers contained herein or any untrue statement or alleged
untrue statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, or any related preliminary offering circular,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, 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 loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Issuers will 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 in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Issuers by any Purchaser through CSFBC
specifically for use therein, it being understood and agreed that the only such
information consists of the information described as such in subsection (b)
below; provided further, however, that with respect to any untrue statement or
alleged untrue statement in or omission or alleged omission from any preliminary
offering circular, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Purchaser that sold the Offered Securities
concerned to the person asserting any such losses, claims, damages or
liabilities, to the extent that such sale was an initial resale by such
Purchaser and any such loss, claim, damage or liability of such Purchaser
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Offered Securities to such
person, a copy of the Offering Document if the Issuers had previously furnished
copies thereof to such Purchaser and such Offering Document corrected such
untrue statement or omission or alleged untrue statement or omission.
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless the Issuers against any losses, claims, damages or liabilities to which
the Issuers may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, or any related preliminary offering circular,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, 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 reliance
upon and in conformity with written information furnished to the Issuers by such
Purchaser through CSFBC specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Issuers in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Purchaser consists of the following information in
the Offering Document furnished on behalf of each Purchaser: the last paragraph
at the bottom of the cover page concerning the terms of the offering by the
Purchasers, the legends concerning over-allotments and stabilizing on the inside
front cover page and, under the caption "Plan of Distribution," (i) the third
sentence of the second paragraph thereunder, (ii) the fourth paragraph
thereunder and (iii) the third sentence in the sixth paragraph thereunder.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may 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 (which consent shall not be unreasonably withheld), 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 will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
12
consent of the indemnified party (which consent shall not be unreasonably
withheld), effect any settlement of any pending or threatened action in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party from all liability
on any claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Issuers on the
one hand and the Purchasers on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Issuers 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 as well as any other relevant equitable
considerations. The relative benefits received by the Issuers 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 but after
deducting the Purchasers' discounts and commissions) received by the Issuers
bear to the total discounts and commissions received by the Purchasers from the
Issuers under this Agreement. 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 Issuers or the Purchasers and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of 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 action or claim which is
the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Purchaser shall be required to contribute any amount in
excess of the amount by which the total price at which the Offered Securities
purchased by it were resold 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
purchase obligations and not joint.
(e) The obligations of the Issuers under this Section shall be in addition
to any liability which the Issuers 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 or the Exchange Act; and the
obligations of the Purchasers under this Section 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 person, if any, who controls either
of the Issuers within the meaning of the Securities Act or the Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in their
obligations to purchase Offered Securities hereunder and the aggregate principal
amount of Offered Securities that such defaulting Purchaser or Purchasers agreed
but failed to purchase does not exceed 10% of the total principal amount of
Offered Securities, CSFBC may make arrangements satisfactory to the Issuers for
the purchase of such Offered Securities by other persons, including any of the
Purchasers, but if no such arrangements are made by the Closing Date, the
non-defaulting Purchasers shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Purchasers agreed but failed to purchase. If any Purchaser or
Purchasers so default and the aggregate principal amount of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total
principal amount of Offered Securities and arrangements satisfactory to CSFBC
and the Issuers for the purchase of such Offered Securities by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Purchaser or the Issuers,
except as provided in Section 9. As used in this Agreement, the term "Purchaser"
includes any person substituted for a Purchaser under this Section. Nothing
herein will relieve a defaulting Purchaser from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Issuers or its officers and of the several Purchasers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Purchaser, the Issuers or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If for any reason the purchase of the
Offered Securities by the Purchasers is not consummated, the Issuers shall
remain responsible for the expenses to be paid or
13
reimbursed by them pursuant to Section 5 and the respective obligations of the
Issuers and the Purchasers pursuant to Section 7 shall remain in effect. If the
purchase of the Offered Securities by the Purchasers is not consummated for any
reason other than solely because of the termination of this Agreement pursuant
to Section 8 or solely because of the occurrence of any event specified in
clause (C), (D) or (E) of Section 6(b)(ii), the Issuers will reimburse the
Purchasers for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Purchasers will be mailed, delivered or telegraphed and confirmed to the
Purchasers, c/o Credit Suisse First Boston Corporation, Xxxxxx Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000, Attention: Investment Banking Department-- Transactions
Advisory Group, or, if sent to the Issuers, will be mailed, delivered or
electronically transmitted and confirmed to them at 000 Xxxx Xxxxxx, Xxx Xxxx,
XX 00000, Attention: Xxxxxxx Xxxxxx; provided, however, that any notice to a
Purchaser pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Purchaser.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the controlling
persons referred to in Section 7, and no other person will have any right or
obligation hereunder, except that holders of Offered Securities shall be
entitled to enforce the agreements for their benefit contained in the second and
third sentences of Section 5(b) hereof against the Issuers as if such holders
were parties thereto.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts of laws.
The Issuers hereby submit to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
14
If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Issuers and the several
Purchasers in accordance with its terms.
Very truly yours,
WinStar Communications, Inc.
By___________________________________
Name:
Title
WinStar Equipment Corp.
By___________________________________
Name:
Title
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
Credit Suisse First Boston Corporation
BT Securities Corporation
By Credit Suisse First Boston Corporation
By _____________________________________
Name:
Title:
SCHEDULE A
Principal Amount
Principal Amount of Equipment
Purchaser of Senior Notes Notes
--------- --------------- ----------------
Credit Suisse First Boston
Corporation $ 60,000,000 $120,000,000
BT Securities Corporation 40,000,000 80,000,000
------------ ------------
$100,000,000 $200,000,000
============ ============
A-1
