EXHIBIT 10.34
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release (this "AGREEMENT") is
entered into as of May 12, 2004, by and among SPRINT CORPORATION, a Delaware
corporation, SPRINT SPECTRUM L.P., a Delaware limited partnership, SPRINTCOM,
INC., a Kansas corporation, WIRELESSCO, L.P., a Delaware limited partnership,
PHILLIECO, L.P., a Delaware limited partnership, APC PCS, LLC, a Delaware
limited liability company, SPRINT COMMUNICATIONS COMPANY L.P., a Delaware
limited partnership, (collectively, the "SPRINT PARTIES,"), HORIZON PERSONAL
COMMUNICATIONS, INC., an Ohio corporation ("HORIZON"), BRIGHT PERSONAL
COMMUNICATIONS SERVICES, LLC, an Ohio limited liability company ("BRIGHT") and
HORIZON PCS, INC., a Delaware corporation ("PARENT" and together with Horizon
and Bright, the "HORIZON PARTIES").
The OFFICIAL COMMITTEE OF UNSECURED CREDITORS in Horizon's Chapter 11
Cases (the "CREDITORS COMMITTEE"), the OFFICIAL COMMITTEE OF BONDHOLDERS in
Horizon's Chapter 11 Cases (the "BONDHOLDERS COMMITTEE" and together with the
Creditors Committee, the "COMMITTEES"), and WACHOVIA BANK, N.A., a national
banking association, as agent (the "AGENT"), for itself and the lenders under
that certain Credit Agreement dated as of September 26, 2000 (the "LENDERS" and
together with the Agent and the Committees, the "CREDITORS"), will become
parties to this Agreement when they execute counterpart signature pages, which
must be before 5:00 p.m. Eastern Time on Friday, May 28, 2004. The Creditors,
the Horizon Parties and the Sprint Parties are referred to collectively as the
"PARTIES".
Each of Horizon and Bright (each individually a "MANAGER" and
collectively the "HORIZON MANAGERS") has entered into a Management Agreement, a
Services Agreement and two Trademark and Service ▇▇▇▇ License Agreements with
the Sprint Parties, dated and effective as of the dates indicated:
- Horizon (June 8, 1998)
- Bright (October 13, 1999)
(each agreement, together with all addenda and amendments, being a "MANAGEMENT
AGREEMENT," a "SERVICES AGREEMENT" and two "TRADEMARK AND SERVICE ▇▇▇▇ LICENSE
AGREEMENTS" and collectively, the "SPRINT AGREEMENTS").
The Horizon Parties are currently debtors and debtors in possession in
Chapter 11 proceedings pending in the United States Bankruptcy Court for the
Southern District of Ohio, Eastern Division (the "BANKRUPTCY COURT"), Nos.
03-62424, 03-62425 and 03-62426 (the "CHAPTER 11 CASES").
The Horizon Parties and the Sprint Parties are presently engaged in
litigation entitled HORIZON PERSONAL COMMUNICATIONS, INC., ET AL., v. SPRINT
CORPORATION, ET AL., pending in the United States District Court for the
Southern District of Ohio, Eastern Division (the "DISTRICT COURT"), docketed as
Civil Action No. C2-03-756 (the "LITIGATION").
To avoid the expense and delay inherent in the Litigation and to
resolve and settle all claims as described in this Agreement, including but not
limited to those claims asserted in the Litigation, the Parties agree as
follows:
1. PURCHASE AGREEMENT. The Parties (other than the Creditors) are executing
and delivering this Agreement contemporaneously with the execution and delivery
by the Horizon Parties and the Sprint Parties of an Asset Purchase Agreement in
the form attached as Exhibit A to this Agreement (the "PURCHASE AGREEMENT").
2. EFFECTIVE DATE.
(A) EFFECTIVE DATE DEFINITION. Upon the execution and delivery of this
Agreement by the Horizon Parties and the Sprint Parties, Horizon will
promptly prepare and file in the Chapter 11 Cases a motion (the "APPROVAL
MOTION") that seeks the entry of an order (the "APPROVAL ORDER") of the
Bankruptcy Court that approves and authorizes (i) this Agreement and the
compromise and settlement provided for in this Agreement pursuant to
Bankruptcy Rule 9019, and (ii) the Purchase Agreement and the consummation
of the transactions provided for in the Purchase Agreement pursuant to
Sections 363 and 365 of the Bankruptcy Code. Each of the Parties agrees to
use its best efforts to obtain approval of the Approval Motion and the
entry of the Approval Order. This Agreement, including but not limited to
the releases provided for in this Agreement, will become effective when the
Approval Order becomes a Final Order (unless the Horizon Parties and Sprint
Parties waive the requirement of the Final Order, in which event this
Agreement will become effective so long as the Approval Order is in full
force and effect and not subject to any stay) and when the transactions
provided for in the Purchase Agreement are consummated (the "EFFECTIVE
DATE"), except that Sections 2, 5(a), 6, 9(a), 14(b) and 15 will become
effective immediately upon execution of this Agreement by the Horizon
Parties and the Sprint Parties without condition. This Agreement (including
but not limited to the releases provided for in this Agreement) and the
Purchase Agreement, and the obligations of the Parties under this Agreement
and the Purchase Agreement (except for Sections 2, 5(a), 6, 9(a), 14(b) and
15 of this Agreement), are in all respects contingent upon (x) each of the
Creditors becoming parties to this Agreement before 5:00 p.m. Eastern Time
on Friday, May 28, 2004, (y) the entry of the Approval Order on or before
July 20, 2004, and (z) the Approval Order becoming a Final Order not later
than August 2, 2004. This Agreement and the Purchase Agreement will become
null and void if any of the three conditions described in clauses (x), (y)
and (z) of the preceding sentence is not satisfied, unless the Sprint
Parties waive the condition in clause (x) and the Horizon Parties and the
Sprint Parties waive the conditions in clauses (y) and (z).
(B) FINAL ORDER DEFINITION. For purposes of this Agreement, the term
"FINAL ORDER" means an order or judgment of the Bankruptcy Court as entered
on its docket that has not been reversed, stayed pursuant to Bankruptcy
Rule 8005 or any other applicable rule of civil or appellate procedure,
modified or amended, and as to which the time to appeal, petition for
certiorari, or seek reargument or rehearing has expired and as to which no
notice of appeal, petition for certiorari, or motion for reargument or
rehearing was timely filed, or as to which any right to appeal, petition
for certiorari or seek
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reargument or rehearing has been waived in writing in a manner satisfactory
to the Horizon Parties and the Sprint Parties, or, if a notice of appeal,
petition for certiorari, or motion for reargument or rehearing was timely
filed, the order or judgment of the Bankruptcy Court has been affirmed by
the highest court to which the order or judgment was appealed or from which
the reargument or rehearing was sought, or certiorari has been denied, and
the time to file any further appeal or to petition for certiorari or to
seek further reargument or rehearing has expired.
(C) SPRINT CONSENT TO ASSUMPTION OF SPRINT AGREEMENTS. Upon a Motion
by the Horizon Parties to assume the Sprint Agreements, the Sprint Parties
will consent to such assumption without demanding cure or other payments or
further adequate assurance with respect to the Horizon Parties' obligations
under the Sprint Agreements, except for payment of the Business Activity
Amounts described in Section 5(a) and payments or obligations due or
arising after the date of this Agreement.
(D) PROCEDURE UPON PARTY'S APPEAL. If any person files an appeal,
objection or challenge in the Bankruptcy Court after the issuance of the
Approval Order and before it becomes a Final Order, the Sprint Parties and
the Horizon Parties will cooperate and use commercially reasonable efforts
to challenge or otherwise cause the withdrawal of any such appeal,
objection or challenge. None of the Sprint Parties or the Horizon Parties
will cooperate with, facilitate or support the efforts of any person who
files any such appeal, objection or challenge.
3. SETTLEMENT PAYMENT. Horizon, on behalf of itself and the other Horizon
Parties, will pay Sprint Spectrum L.P., on its own behalf and on behalf of the
other Sprint Parties, $4 million. The payment will be made on the Effective Date
via wire transfer to the account designated by Sprint Spectrum L.P.
4. GENERAL RELEASES.
(A) SPRINT RELEASE OF THE HORIZON PARTIES AND THE CREDITORS. Except as
provided in Section 5, each of the Sprint Parties releases and forever
discharges the Horizon Parties, the Creditors, and each of their respective
officers, directors, shareholders, partners, members (and, as to the
members of the Committees, the officers, directors, shareholders, partners,
members, subsidiaries, affiliates, employees, agents and representatives of
such members), subsidiaries, employees, agents, attorneys (and other
professional advisors) and representatives (the "HORIZON RELEASED PARTIES")
from all liabilities, claims, attorneys' fees, damages, injuries, causes of
action, and losses of any kind that any of the Sprint Parties ever had, now
has, may assert or may in the future claim to have against any of the
Horizon Released Parties by reason of any act, failure to act, occurrence
or event occurring or existing on or before the date of this Agreement
including but not limited to all claims that were or could have been
asserted in the Litigation ("SPRINT'S CLAIMS"); provided, however, that the
Sprint Parties do not release, and the Sprint Parties expressly reserve,
all Sprint Claims against any Horizon Released Party that arises from or
relates to matters unrelated to the Horizon Parties, the Sprint Agreements,
the Litigation or the Chapter 11 Cases..
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(B) HORIZON RELEASE OF THE SPRINT PARTIES. Except as provided in
Section 5, each of the Horizon Parties and the Creditors releases and
forever discharges the Sprint Parties and their respective officers,
directors, shareholders, partners, members, subsidiaries, employees,
agents, attorneys (and other professional advisors) and representatives
(the "SPRINT RELEASED PARTIES") from all liabilities, claims, attorneys'
fees, damages, injuries, causes of action, and losses of any kind that any
of the Horizon Parties and Creditors ever had, now has, may assert or may
in the future claim to have against any of the Sprint Released Parties by
reason of any act, failure to act, occurrence or event occurring or
existing on or before the date of this Agreement, including but not limited
to all claims that were or could have been asserted in the Litigation
("HORIZON'S CLAIMS" and together with Sprint's Claims, the "RELEASED
CLAIMS"); provided, however, that the Horizon Parties and the Creditors do
not release, and they hereby expressly reserve, all Horizon Claims against
any Sprint Released Party that arises from or relates to matters unrelated
to the Sprint Parties, the Sprint Agreements, the Litigation or the Chapter
11 Cases..
(C) COMPLETE RELEASE. Except as provided in Sections 5, this Agreement
constitutes the complete compromise, settlement, accord and satisfaction of
all of the Released Claims.
(D) DISMISSAL OF LITIGATION. On the Effective Date, the Parties will
execute and deliver, all to the other Parties, and will file with the
Bankruptcy Court and the District Court, such documents as may be necessary
or desirable to effect the dismissal with prejudice of the Litigation.
5. EXCEPTIONS TO RELEASED CLAIMS.
(A) RIGHT TO COLLECT BUSINESS ACTIVITY AMOUNTS. As of the date of this
Agreement, the Horizon Parties have paid the Sprint Parties the net amount
owed for services rendered by the Sprint Parties during the month of
February, 2004, pursuant to the terms of the Stipulated Order Regarding
Interim Post-Petition Dealings Between and Among the Debtors and the Sprint
PCS Parties entered by the Bankruptcy Court on December 24, 2003 (the
"STIPULATION"). Notwithstanding the releases set forth in this Agreement,
the Horizon Parties will continue to pay the Sprint Parties:
(i) for services rendered by the Sprint Parties from March 1,
2004 through the date of this Agreement, the net amounts set forth in
the third sentence of Section 5 of the Stipulation, and
(ii) for services rendered by the Sprint Parties from the day
after the date of this Agreement to the earliest to occur of the
following: (1) August 2, 2004, (2) the Effective Date, (3) entry of a
final order of the Bankruptcy Court denying the Horizon motion to
approve this Agreement and the Purchase Agreement, or (4) the mutual
written agreement of the Horizon Parties and the Sprint Parties, the
net amounts set forth in the third sentence of Section 5 of the
Stipulation, modified as follows: (A) the percentage included in
clause (b)(ii) of that sentence will be increased from 85% to 100%,
and (B) the phrase
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"other than post-petition 3-G related fees and charges or other
charges which are not Agreed Post-Petition Amounts" will be deleted
from clause (b)(ii)(x) of that sentence.
The intent of the Parties is that the releases set forth in this Agreement
will not affect the rights and obligations of the Parties for services
rendered by the Sprint Parties from March 1, 2004 to the Effective Date, in
the ordinary course of business, consistent with past practice and pursuant
to the Stipulation and this Agreement (the "BUSINESS ACTIVITY AMOUNTS").
The Parties may ▇▇▇▇, collect and settle, before and after the Effective
Date, the Business Activity Amounts in accordance with the terms of this
Section 5(a).
(B) PRE-EFFECTIVE DATE COLLECTED REVENUES. Notwithstanding the
releases set forth in this Agreement, the Sprint Parties will remit to
Horizon, before and after the Effective Date, all Collected Revenues (as
defined in the Management Agreement) for periods before the Effective Date.
(C) FUTURE CLAIMS. Notwithstanding the releases set forth in this
Agreement, nothing in this Agreement constitutes a release or waiver by any
Party of claims arising after the date of this Agreement.
(D) INDEMNIFICATION. Notwithstanding the releases set forth in this
Agreement, this Agreement does not waive the Sprint Parties' and the
Horizon Parties' respective rights and responsibilities under section 13 of
the Management Agreement with respect to indemnification for claims brought
by third parties arising before the date of this Agreement, except that
this Agreement does waive the Sprint Parties' and the Horizon Parties'
respective rights to make indemnity claims based on the provision of
services by third parties under the Sprint Agreements. No Sprint Party or
Horizon Party is aware of any indemnity right that presently exists under
section 13 of the Management Agreement.
6. STAY OF LITIGATION. On the date the Horizon Parties and the Sprint
Parties execute this Agreement, the Horizon Parties and the Sprint Parties will
file jointly with the District Court a motion to "stay" the Litigation, and
cooperate to cause the District Court to issue an order granting the stay. It is
the intent of this provision that the stay will suspend all pleading cycles
currently pending in the Litigation such that no Party is required to file any
further pleadings at this time. The stay will remain in effect until the earlier
of (i) the dismissal of the Litigation following the Effective Date in
accordance with Section 4(d) of this Agreement or (ii) the Agreement becoming
null and void or otherwise terminated. If the latter occurs, the Parties will
cooperate to take the necessary steps to lift the stay and to establish new
reasonable case development deadlines and dates for the completion of any
pleading cycles suspended as a result of the stay. In particular, the Parties
acknowledge that the Committees have timely and properly objected to the
Magistrate's Order of May 3, 2004 denying the Committees' motion to intervene
and that the Committees will have 30 days from the lifting of the stay to file
supplemental arguments in support of the objections after which a normal
pleading cycle will commence. Any pleadings filed with the District Court in
connection with a stay request will incorporate the foregoing.
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7. TERMINATION OF STIPULATION. The Parties agree that the Stipulation will
terminate on the Effective Date.
8. COVENANT NOT TO ▇▇▇ OR ASSIST THIRD PARTIES.
(A) No Party will (i) commence or in any manner seek relief against
another Party through any suit or proceeding based upon any Released Claim,
or (ii) become a party to any suit or proceeding arising from or in
connection with an attempt by or on behalf of any third party to enforce or
collect an amount based on any Released Claim.
(B) No Party will share with US Unwired, Inc. or any other third party
or such parties' respective affiliates, any Huron Consulting Group work
product or any other work product prepared by an attorney, consultant or
expert in conjunction with the Litigation or preparation for the
Litigation, except that the Horizon Parties may share such work product
with the Creditors (including (i) the members of the Committee and their
respective representatives and professional advisors and (ii) the
professional advisors to the Committees) to enable the Creditors and
members of the Committees to satisfy their duties as Committees and members
of the Committees, respectively. The Creditors agree not to share the work
product with third parties.
9. NTELOS SERVICE AREA.
(A) NTELOS NETWORK SERVICES AGREEMENT. Promptly after the parties
execute this Agreement, the Horizon Parties will file a motion with the
Bankruptcy Court to reject the Network Services Agreement ("▇▇▇ ▇▇▇") dated
as of August 12, 1999, as amended, among Horizon and Virginia PCS Alliance,
LC and West Virginia PCS Alliance, LC (collectively "NTELOS"), with such
rejection to be effective on the Effective Date. The Sprint Parties agree
that such rejection of the NSA will not be deemed to be a default or breach
under the terms of the Management Agreement. The Sprint Parties acknowledge
and agree that they will bear the full responsibility (financial and
otherwise) for (i) the provision of services from and after the Effective
Date to the subscribers whose economic interests are being transferred
pursuant to the Asset Purchase Agreement, and (ii) compliance with all
applicable laws and regulations governing the PCS licenses that the Sprint
Parties own in the nTelos Service Area (as defined below).
(B) CHANGE OF RESPONSIBILITY. (i) The Horizon Parties will no longer
be responsible for providing Sprint PCS Products and Services in the
following BTAs (the "NTELOS SERVICE AREA") after the Effective Date, and
the nTelos Service Area will no longer be included in the Service Area
under the Management Agreement. Horizon will have no further rights, duties
or obligations with respect to the operation of the nTelos Service Area
pursuant to the terms of the Management Agreement, including but not
limited to no further duties or obligations with respect to the nTelos
Service Area pursuant to the terms of Addendum II and Addendum VI of the
Management Agreement, and no further rights regarding exclusivity in the
nTelos Service Area.
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Charleston, WV BTA
Huntington, WV - Ashland, KY BTA (except Ironton, OH 740 and
Gallipolis, OH 740 CSAs)
Danville, VA BTA
Lynchburg, VA BTA
Martinsville, VA BTA
Roanoke, VA BTA
Staunton-Waynesboro, VA BTA
Bluefield, VA BTA
Beckley, WV BTA
Fairmont, WV BTA
Morgantown, WV BTA
Clarksburg, WV BTA
Charlottesville, VA BTA
(ii) The Sprint Parties will no longer have any responsibilities or
obligations to the Horizon Parties under the Sprint Agreements with respect
to the nTelos Service Area after the Effective Date.
10. GRANT OF OPT-IN RIGHT. The Sprint Parties grant to Horizon and Bright
the right to opt-in to the then-current PCS affiliate "price simplification"
addendum for affiliates with more than 3 million covered pops (the "PS
ADDENDUM") that amends the Sprint Agreements under the following process. The
opt-in right must be exercised by Horizon and Bright at the same time and under
the same terms, and the PS Addendum for both must be executed before December
31, 2004. To exercise the opt-in right, Manager must deliver a written election
notice to the Sprint Parties (the "OPT-IN NOTICE"). The Sprint Parties will send
Horizon and Bright the then-current form of PS Addendum within 10 Business Days
after Horizon and Bright give the Opt-in Notice. After the Sprint Parties sends
the first PS Addendum, it will continue to send to Horizon and Bright redacted
copies of any PS Addendum signed subsequently by an affiliate. Horizon and
Bright can only opt-in to the PS Addendum most recently sent to Horizon and
Bright; the PS Addendum previously sent to Horizon and Bright expires when the
Sprint Parties send a new PS Addendum. The PS Addendum will become effective and
will become binding on Horizon and Bright on the first calendar day of the
calendar month in which it is executed by the parties and all of the conditions
are satisfied.
11. CONTRACT. The Parties understand that the terms in this Agreement are
binding contractual commitments and not mere recitals, and that the Parties are
not relying upon any statement or representation made by any Party released, any
such Party's agents or attorneys, or any other person, concerning the nature,
extent or duration of any injuries or damages, or concerning any other thing or
matter, but are relying solely and exclusively upon their own knowledge, belief
and judgment.
12. EXPENSES. The Parties will pay their own expenses and attorneys' fees
incurred in connection with the Litigation and with the negotiation and
execution of this Agreement. Nothing in this Agreement precludes the Committees
(or their respective members) from seeking payment of their expenses and
attorneys' and other professional advisors' fees by the Horizon Parties pursuant
to Sections 503, 330 and/or 331 of the Bankruptcy Code.
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13. ADDITIONAL FACTS. The Parties are aware that they may after the date of
this Agreement discover claims or facts in addition to or different from those
they now know or believe to be true with respect to Released Claims.
Nevertheless, except as set forth in Section 5, it is the intention of the
Parties to fully, finally and forever settle and release all Released Claims,
including existing claims for damages and losses that are presently unknown or
unanticipated. In furtherance of this intention, the releases given in this
Agreement are and will remain in effect as full and complete mutual releases of
Released Claims, except as set forth in Section 5, notwithstanding the discovery
or existence of any additional or different facts relative to them. Each Party
assumes the risk of any mistake in executing this Agreement and furnishing the
releases set forth in this Agreement. Without limiting the generality of the
preceding sentences in this Section 13, each Party waives and relinquishes, to
the extent permitted by law, any right or benefit that such Party has or might
have under any provision of statutory or non-statutory law that might provide
that a release does not extend to claims that a person does not know or suspect
to exist at the time of execution of the release that, if known, would or might
have materially affected the decision to give the release.
14. WAIVERS.
(A) No waiver by a Party of any breach of or default under this
Agreement will be deemed to be a waiver of any other breach or default of
any kind or nature of this Agreement. No acceptance of payment or
performance by a Party after any such breach or default will be deemed to
be a waiver of any breach or default of this Agreement, whether or not such
Party knows of such breach or default at the time it accepts such payment
or performance.
(B) No failure or delay on the part of a Party to exercise any right
it might have will prevent the exercise of that right by that Party at any
time the other Party continues to be in default, and no such failure or
delay will operate as a waiver of any default.
15. OTHER PROVISIONS.
(A) GOVERNING LAW. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement
will be governed by and construed under Kansas and applicable bankruptcy
law, without giving effect to any choice of law or conflict of law rules or
provisions (whether of Kansas or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than Kansas.
(B) JURISDICTION. Each Party irrevocably and unconditionally submits
to the exclusive jurisdiction of the District Court and any appellate court
from such court, in any suit, action or proceeding arising out of or
relating to this Agreement.
(C) ENTIRE AGREEMENT; BINDING EFFECT. This Agreement constitutes the
entire agreement between the Parties with respect to the subject matter it
covers and supersedes all prior agreements, negotiations, representations
and discussions between the Parties with respect to the subject matter it
covers. Upon execution of this Agreement
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by the Horizon Parties and the Sprint Parties, Sections 2, 5(a), 6, 9(a)
and 14(b) and this Section 15 will be binding on and inure to the benefit
of the Parties and their respective successors and assigns. Upon the
Effective Date, all of the provisions of this Agreement will be binding on
and inure to the benefit of the Parties and their respective successors and
assigns.
(D) CONSTRUCTION. The Horizon Parties and Sprint Parties participated
in the negotiation and drafting of this Agreement. If any ambiguity or
question of intent or interpretation arises, the Horizon Parties and Sprint
Parties intend that (i) this Agreement be construed as if they had drafted
it together, and (ii) no presumption or burden of proof arises favoring or
disfavoring any Horizon Party or Sprint Party by virtue of its role in
drafting any provision of this Agreement. All pronouns and any variations
of pronouns used in this Agreement refer to the masculine, feminine or
neuter, singular or plural as the identity of the person or persons
require.
(E) SEVERABILITY. If any term or provision of this Agreement is
illegal, invalid or unenforceable for any reason whatsoever, that term or
provision will be enforced to the maximum extent permissible so as to
effect the intent of the Parties, and such illegality, invalidity or
unenforceability will not affect the validity, legality or enforceability
of the remainder of this Agreement.
(F) AMENDMENT. Any amendment to this Agreement must be in a written
document signed by the Parties that have executed this Agreement at the
time of the amendment, and must state the intent of the Parties to amend
this Agreement.
(G) NO ADMISSION OF LIABILITY. It is expressly understood and agreed
that this Agreement is a compromise of disputed claims and that execution
of, making of payments under, and performing of obligations under this
Agreement are not to be construed as an admission of liability on the part
of any Party.
(H) EFFECT UPON SPRINT AGREEMENTS. The Sprint Agreements will remain
in force and effect, and except with respect to Released Claims and the
terms of this Agreement, nothing in this Agreement will affect the rights
and obligations of the Parties under the Sprint Agreements from and after
the Effective Date.
(I) COUNTERPARTS. This Agreement may be signed in counterpart or
duplicate copy and by facsimile signature, and any signed counterpart,
duplicate or facsimile copy is the equivalent to a signed original for all
purposes.
(J) FOR SETTLEMENT PURPOSES. If this Agreement does not become
effective, the Parties agree that Federal Rule of Evidence 408 will apply
to this Agreement, the Purchase Agreement and the Letter of Intent dated
May 6, 2004, between Horizon, Bright and Sprint (the "LETTER OF INTENT"),
and none of this Agreement, the Purchase Agreement, the Letter of Intent or
any negotiations relating to any of those agreements will be admissible for
any purpose in the Litigation or the Chapter 11 Cases.
[THE REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY.]
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EACH PARTY HAS COMPLETELY READ THE TERMS OF THIS AGREEMENT, FULLY UNDERSTANDS
THEM AND VOLUNTARILY ACCEPTS THEM FOR THE PURPOSE OF MAKING FULL AND FINAL
COMPROMISE, ADJUSTMENT AND SETTLEMENT OF ALL CLAIMS, DISPUTED OR OTHERWISE, IN
ACCORDANCE WITH THE TERMS OF THIS AGREEMENT
The Parties have executed this Agreement on the date first above
written.
SPRINT CORPORATION
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
SPRINT SPECTRUM L.P.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
SPRINTCOM, INC.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
WIRELESSCO, L.P.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
PHILLIECO, L.P.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
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APC PCS, LLC
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
SPRINT COMMUNICATIONS COMPANY L.P.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
HORIZON PERSONAL COMMUNICATIONS, INC.
By:
------------------------------------
Name:
------------------------------
Title:
----------------------------
BRIGHT PERSONAL COMMUNICATIONS, LLC
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
HORIZON PCS, INC.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
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OFFICIAL BONDHOLDERS COMMITTEE
IN THE HORIZON PARTIES' CHAPTER 11 CASES
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
OFFICIAL COMMITTEE OF UNSECURED
CREDITORS IN THE HORIZON PARTIES'
CHAPTER 11 CASES
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
WACHOVIA BANK, N.A.,
a national banking association
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
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EXHIBIT A
[COPY OF THE ASSET PURCHASE AGREEMENT]
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