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LIMITED LIABILITY COMPANY INTEREST
PURCHASE AGREEMENT
THIS LIMITED LIABILITY COMPANY INTEREST PURCHASE AGREEMENT
(this "Agreement") is entered into as of September 14, 2001, by and between
Wireless One of North Carolina, L.L.C., a Delaware limited liability company
("Buyer"), CT WIRELESS CABLE, INC., a Delaware corporation which is a member of
Buyer ("CTWC"), WIRELESS ONE, INC., a Delaware corporation ("Seller"), and
WORLDCOM BROADBAND SOLUTIONS, INC., a Delaware corporation which is an affiliate
of Seller ("WBS").
WHEREAS, Seller is the owner of an interest (the "LLC
Interest") in Buyer, which LLC Interest represents Seller's entire ownership
interest in Buyer; and
WHEREAS, Seller has agreed to sell, and Buyer has agreed to
purchase, the LLC Interest at the price and upon the terms and conditions
hereinafter set forth, effective as of the date the purchase and sale are
approved by the Federal Communications Commission ("FCC Approval");
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements hereinafter set forth, the parties hereby agree
as follows:
1. SALE AND PURCHASE OF LLC Interest
1.1. Sale and Purchase of LLC Interest. On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and conditions hereof, Seller agrees to sell to Buyer, and Buyer agrees to
purchase from Seller, all of the LLC Interest for a purchase price of Twenty
Million Six Hundred Ninety Six Thousand Five Hundred Sixty Two Dollars
($20,696,562.00) (the "Purchase Price"). The Purchase Price shall consist of an
initial cash payment of Three Million Dollars ($3,000,000.00) (the "First
Payment") and Buyer's Promissory Note, in the form of Exhibit A, with a
principal amount equal to the balance of the Purchase Price (the "Promissory
Note"), which Promissory Note shall be non-recourse to Buyer and its members and
shall be secured by a first position security interest in one hundred percent
(100%) of the ownership interests in a single purpose, wholly-owned subsidiary
of Buyer (the "Security Sub"), the sole assets of which shall consist of all of
Buyer's current MDS, MMDS, ITFS and WCS licenses and channel rights in North
Carolina, which are listed on Exhibit B (the "Licenses"). The
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Purchase Price shall be paid as provided in Section 1.3. The obligations of the
Seller and Buyer hereunder are subject only to the receipt of FCC Approval, and
each of Seller and Buyer agrees to use its commercially reasonable best efforts
to obtain FCC Approval as soon as possible. Buyer and Seller agree that the
purchase of the LLC Interest hereunder shall be effective for all purposes as of
the date of the FCC Approval (the "Effective Date"), assuming Buyer and Seller
comply with their obligations under Section 1.2 and Section 1.3.
1.2. Escrow of Documents Pending FCC Approval. As of the date
of this Agreement, Buyer shall execute and deliver the Promissory Note and
related Pledge Agreement (as defined in the Promissory Note) ("Pledge
Agreement") to Xxxxxxx X. Xxxxx, Esquire, as escrow agent ("Escrow Agent"), and
(ii) Seller shall deliver to the Escrow Agent an Assignment in the form attached
hereto as Exhibit C, evidencing the assignment of the LLC Interest purchased
hereunder, properly executed by Seller (the "Assignment"). The Escrow Agent
shall hold the Promissory Note, the Pledge Agreement, and the Assignment, in
escrow, for delivery only as provided in Section 1.3.
1.3. Deliveries Upon Receipt of FCC Approval or Denial.
(a) As soon a reasonably practical after the
date Buyer receives official notice that FCC Approval had been granted, but in
no event more than five (5) business days after such date, Buyer shall deliver
to Seller, by wire transfer to the account designated by Seller, cash equal to
the First Payment. Upon receipt of written confirmation that Seller has received
such wire transfer, the Escrow Agent shall release and deliver (i) the
Assignment to Buyer and (ii) the Promissory Note and Pledge Agreement to Seller,
both of which shall be dated as of the Effective Date, whereupon Seller shall be
considered for all purposes to have withdrawn as a member of Buyer.
(b) In the event the FCC Approval is denied, the
obligation of Seller to sell, and the obligation of Buyer to buy, the LLC
Interest pursuant to this Agreement shall terminate and the Escrow Agent shall
(i) return the Promissory Note and Pledge Agreement to Buyer and (ii) return the
Assignment to Seller. In addition, the parties immediately thereafter shall take
all commercially reasonable actions necessary to cause Buyer to transfer to
Seller, in redemption of the LLC Interest, the Licenses Seller would receive in
a liquidation of Buyer under the provisions of Buyer's existing LLC Agreement
(using the values set forth on Exhibit B) after taking into account dilution of
Seller's percentage ownership interest (including its capital account) to
reflect any additional capital contributions to Buyer made by CTWC in the
interim (provided, that any additional capital contributions made to Buyer by
CTWC for purposes other than to fund Buyer's normal operations consistent with
the current funding of Buyer or as needed to meet minimum build-out and lease
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payment requirements associated with its licenses shall require the advance
consent of Seller, not to be unreasonably withheld, in order to be included in
the calculation for this purpose), based on the valuation of Seller's LLC
Interest used in determining the Purchase Price, and after giving effect to the
transactions described in Section 5.4.
1.4. Second Payment Option; Unwind Right.
(a) By the date that is twelve (12) months after
the Effective Date (the "Second Payment Date"), Buyer, at its sole election and
option, may make a Seven Million Dollar ($7 million) payment of principal on the
Promissory Note (the "Second Payment"), plus all accrued interest outstanding
under the Promissory Note. Upon making the Second Payment, Seller shall release
its security interest in part of Buyer's Licenses so that its security interest
shall be reduced to only fifty percent (50%) (by value, using the values set
forth on Exhibit B) of Buyer's Licenses. The Licenses to be released from
Seller's security interest shall be identified by Buyer at the time of the
Second Payment in a written notice to Seller. Seller agrees to use its
commercially reasonable best efforts to assist Buyer in causing its security
interest in the Licenses so identified to be promptly released. Alternatively,
Buyer at its option may make a payment to Seller of all accrued but unpaid
interest under the Promissory Note in order to extend the date for the Second
Payment by six (6) months. Thereafter, Buyer may continue to extend the date for
the Second Payment, for six (6) month periods up to a total of four (4) such
periods (i.e., twenty four (24) additional months total), by making additional
payments of all accrued but unpaid interest under the Promissory Note before the
first day of the next succeeding six (6) month period.
(b) In the event Buyer does not make the Second
Payment when due (including extensions, if any), Seller and CTWC shall meet to
discuss the available alternatives. In the absence of agreement to the contrary,
either CTWC or Seller, by written notice to the other (a "Split-Up Notice"), may
cause Buyer to transfer to Seller, in complete satisfaction of the Promissory
Note other than accrued unpaid interest (which shall be due and payable), the
Licenses Seller would receive in a liquidation of Buyer under the provisions of
Buyer's existing LLC Agreement (using the values set forth on Exhibit B) after
taking into account the dilution of Seller's percentage ownership interest
(including its capital account) in accordance with Section 1.4(d) and after
giving effect to the transactions described in Section 5.4. Notwithstanding the
foregoing, (i) the Licenses to be distributed to Seller pursuant to this Section
1.4(b) shall include all of Buyer's WCS License rights for the area comprising
the Charlotte BTA; (ii) as described in Section 5.4, Buyer, or its designated
affiliate, shall have lease rights to Channels A4, B4, C1, C2, C3, C4, D1, D2,
D3, and D4 and ownership rights to Xxxxxxxx X0, X0, F1 and F2, and Seller,
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or its designated affiliate, shall have lease rights to Xxxxxxxx X0, X0, X0, X0,
X0, X0, X0, X0, X0 and G4 and ownership rights to Xxxxxxxx X0, X0, X0, X0, X0,
X0, X0, MDS1 and MDS2; and (iii) Seller, by written notice to Buyer, may refuse
to accept any of the Licenses that would otherwise be transferred to it,
including any and all obligations associated with such Licenses, but any
Licenses Seller refuses to accept shall be deemed to have been transferred to
Seller for purposes of the foregoing sentence and the value of such Licenses
(using the values set forth on Exhibit B) shall be included in the amount Seller
shall be considered to have received in satisfaction of Buyer's obligations
under the Promissory Note.
(c) In the event neither Seller nor CTWC
delivers a Split Up Notice to the other by the date that is one hundred and
eighty (180) days after the date the Second Payment is due (including
extensions, if any), the rights of Buyer and Seller under Section 1.4(b) shall
lapse. The lapsing of such rights shall not affect any of Buyer's and Seller's
rights and obligations under the Promissory Note, which shall continue in effect
in accordance with its terms.
(d) In determining Seller's percentage ownership
interest in Buyer for purposes of Section 1.4(b), Seller's percentage ownership
interest shall be reduced to reflect the $3 million First Payment made to Seller
and any additional capital contributions to Buyer made by CTWC in the interim
(provided, that any additional contributions made to Buyer by CTWC for purposes
other than to fund Buyer's normal operations consistent with the current funding
of Buyer or as needed to meet minimum build-out and lease payment requirements
associated with its licenses shall require the advance consent of Seller, not to
be unreasonably withheld, in order to be included in the calculation for this
purpose), based on the valuation of Seller's LLC Interest used in determining
the Purchase Price. Thus, without considering any additional capital
contributions that may be made by CTWC, the $3 million First Payment would
reduce Seller's percentage ownership interest in Buyer to 42.7524%.
(e) Buyer, Seller, and CTWC acknowledge and
agree that certain approvals or consents of the FCC, other government agencies
and entities ("Government Entities") and third parties that are holders of ITFS
licenses ("Third Parties") will be required in order to fully carry out certain
provisions of this Section 1.4. Buyer, Seller, and CTWC agree to work in good
faith to effect the purposes of this Section 1.4 and agree to take all
commercially reasonable actions as may be required in order to effect the
purposes of this Section 1.4 as promptly as reasonably possible, including
requesting any consents or approvals of the FCC, Governmental Entities, or Third
Parties as may be required and promptly providing any information or
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documentation as may be required in connection with such consents or approvals.
2. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer and CTWC as
follows:
2.1. Legal and Authorized Transactions. The execution and
delivery by Seller of this Agreement and the Assignment, and the consummation of
the transactions contemplated to be performed by it under this Agreement or the
Assignment, have been duly authorized by all necessary action by Seller. This
Agreement and the Assignment constitute the legal, valid and binding obligations
of Seller (assuming the due authorization, execution and delivery of this
Agreement by Buyer and CTWC), enforceable against Seller in accordance with
their terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by the application of the general
principles of equity.
2.2. No Conflict. Seller's execution and delivery of, and
performance of its obligations under, this Agreement and the Assignment do not
and will not (i) violate or constitute a default under any indenture, mortgage,
deed of trust, instrument or other contract to which Seller is a party or by
which Seller or its assets may be bound; (ii) violate any provisions of any law,
rule, regulation, order, judgment or decree applicable to Seller or its assets;
(iii) require the consent, approval or waiver of any governmental authority,
other than FCC Approval, or of any other person or entity, other than such
consents, approvals or waivers that have been obtained by Seller; or (iv) result
in the creation of any lien or encumbrance on any of the assets owned or held by
Seller.
2.3. Authority and Capacity. Seller has full legal right,
capacity, power and authority to execute this Agreement and the Assignment and
to consummate the transactions contemplated hereby and thereby, and all
authorizations, consents and approvals required by any law, regulation,
agreement, instrument or other restriction of any kind or character to permit
Seller to enter into this Agreement and the Assignment and to sell and transfer
the LLC Interest to Buyer pursuant to this Agreement and the Assignment, other
than FCC Approval, have been obtained.
2.4. No Other Ownership Interest. The LLC Interest purchased
hereunder represents Seller's entire interest in Buyer. As of the date of this
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Agreement, Buyer does not have any outstanding debt or other amount owed to
Seller, other than Buyer's obligations under this Agreement.
2.5. Title to LLC Interest. Seller is the lawful owner of the
LLC Interest. Upon payment of the Purchase Price and delivery by Seller to Buyer
of the executed Assignment, Buyer will acquire good, valid and marketable title
to the LLC Interest, free and clear of all mortgages, liens, pledges, charges,
claims, security interests, agreements, encumbrances and equities whatsoever.
2.6. Access to Information. Seller acknowledges that it has
been a member of Buyer since Buyer's inception and that it has appointed
individuals to serve on Buyer's Board of Managers. As a result, Seller is fully
familiar with Buyer's finances and business prospects. Seller further
acknowledges it has sufficient knowledge and experience in financial and
business matters to be capable of evaluating the merits of this transaction and
that it has received all information it deems necessary in order to do so.
2.7. True and Complete on Effective Date. All of Seller's
representations and warranties hereunder shall be true and complete as of the
Effective Date.
3. Representations and warranties of BUYER
Buyer represents and warrants to Seller and WBS as follows:
3.1. Legal and Authorized Transactions; Authority. The
execution and delivery by Buyer of this Agreement, the Promissory Note, and the
Pledge Agreement and the consummation of the transactions contemplated to be
performed by it under this Agreement, the Promissory Note and the Pledge
Agreement, have been duly authorized by all necessary action by Buyer. This
Agreement, the Promissory Note and Pledge Agreement constitute the legal, valid
and binding obligations of Buyer (assuming the due authorization, execution and
delivery of this Agreement by Seller and WBS), enforceable against Buyer in
accordance with their terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and by the application of
the general principles of equity.
3.2. No Conflict. Buyer's execution and delivery of, and
performance of its obligations under, this Agreement and the Promissory Note do
not and will not (i) violate or constitute a default under any indenture,
mortgage, deed of trust, instrument or other contract to which Buyer is a party
or by which Buyer or its assets may be bound; (ii) violate any provisions of any
law, rule, regulation, order, judgment or decree applicable to Buyer or its
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assets; (iii) require the consent, approval or waiver of any governmental
authority, other than FCC Approval, or of any other person or entity, other than
such consents, approvals or waivers that have been obtained by Buyer; or (iv)
result in the creation of any lien or encumbrance on any of the assets owned or
held by Buyer.
3.3. Authority and Capacity. Buyer has full legal right,
capacity, power and authority to execute this Agreement and the Promissory Note
and to consummate the transactions contemplated hereby, and all authorizations,
consents and approvals required by any law, regulation, agreement, instrument or
other restriction of any kind or character to permit Buyer to enter into this
Agreement and to purchase the LLC Interest from Seller pursuant to this
Agreement, other than FCC Approval, have been obtained.
3.4. True and Complete on Effective Date. All of Buyer's
representations and warranties hereunder shall be true and complete as of the
Effective Date.
4. Representations and warranties of CTWC and wbs
CTWC represents and warrants to Seller and WBS as follows:
4.1. Legal and Authorized Transactions. The execution and
delivery by CTWC of this Agreement, and the consummation of the transactions
contemplated to be performed by it under this Agreement, have been duly
authorized by all necessary action by CTWC. This Agreement constitutes the
legal, valid and binding obligation of CTWC (assuming the due authorization,
execution and delivery of this Agreement by Seller and WBS), enforceable against
CTWC in accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and by the application
of the general principles of equity.
4.2. No Conflict. CTWC's execution and delivery of, and
performance of its obligations under, this Agreement do not and will not (i)
violate or constitute a default under any indenture, mortgage, deed of trust,
instrument or other contract to which CTWC is a party or by which CTWC or its
assets may be bound; (ii) violate any provisions of any law, rule, regulation,
order, judgment or decree applicable to CTWC or its assets; (iii) require the
consent, approval or waiver of any governmental authority, other than FCC
Approval, or of any other person or entity, other than such consents, approvals
or waivers that have been obtained by CTWC; or (iv) result in the creation of
any lien or encumbrance on any of the assets owned or held by CTWC.
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4.3. Authority and Capacity. CTWC has full legal right,
capacity, power and authority to execute this Agreement and to consummate the
transactions contemplated hereby.
4.4. True and Complete on Effective Date. All of CTWC's
representations and warranties hereunder shall be true and complete as of the
Effective Date.
WBS represents and warrants to Buyer and CTWC as follows:
4.5. Legal and Authorized Transactions. The execution and
delivery by WBS of this Agreement, and the consummation of the transactions
contemplated to be performed by it under this Agreement, have been duly
authorized by all necessary action by WBS. This Agreement constitutes the legal,
valid and binding obligation of WBS (assuming the due authorization, execution
and delivery of this Agreement by Buyer and CTWC), enforceable against WBS in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and by the application of
the general principles of equity.
4.6. No Conflict. WBS's execution and delivery of, and
performance of its obligations under, this Agreement do not and will not (i)
violate or constitute a default under any indenture, mortgage, deed of trust,
instrument or other contract to which WBS is a party or by which WBS or its
assets may be bound; (ii) violate any provisions of any law, rule, regulation,
order, judgment or decree applicable to WBS or its assets; (iii) require the
consent, approval or waiver of any governmental authority, other than FCC
Approval, or of any other person or entity, other than such consents, approvals
or waivers that have been obtained by WBS; or (iv) result in the creation of any
lien or encumbrance on any of the assets owned or held by WBS.
4.7. Authority and Capacity. WBS has full legal right,
capacity, power and authority to execute this Agreement and to consummate the
transactions contemplated hereby.
4.8. True and Complete on Effective Date. All of WBS's
representations and warranties hereunder shall be true and complete as of the
Effective Date.
5. ADDITIONAL COVENANTS
5.1. Authority to Manage Buyer. As of the date of this
Agreement, CTWC will have the full and complete right and authority to
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manage and operate Buyer. Until FCC Approval is received, Seller agrees to
consent to any action submitted for approval of Buyer's members as may be
reasonably requested by CTWC and to cause the members of Buyer's Board of
Managers appointed by Seller to vote as may be reasonably requested by CTWC or
the members of Buyer's Board of Managers appointed by CTWC in connection with
the operation of Buyer's business. CTWC, Buyer and Seller shall meet at such
times as any of them may reasonably request prior to the Second Payment or a
distribution pursuant to Section 1.4(b) in order to coordinate FCC filings,
address interference and rationalization issues, and review financial matters.
5.2. Interference Agreement. Buyer, Seller, CTWC and WBS shall
work in good faith, including sharing relevant information and obtaining any
necessary approvals and consents, in order to minimize interference, on an
on-going basis, as interference issues arise in the Charlotte BTA and between
any adjacent markets that may be operated by Buyer, Seller, CTWC and/or WBS or
their affiliates. This covenant shall survive termination of this Agreement and
shall remain in effect even if FCC Approval is denied or the Second Payment is
not made to Seller pursuant to Section 1.4.
5.3. Exchange of Consents. By the date (the "Exchange Date")
that is nine (9) months after the date on which the FCC grants the last station
license for the Channels listed on Schedule 5.3:
(a) Buyer shall obtain and provide to Seller the consents, as
evidenced by their signatures thereto, of (i) the parties listed on Schedule
5.3(a)(i), in the form of consent attached hereto as Exhibit D, (ii) the parties
listed on Schedule 5.3(a)(ii), in the form of consent attached as Exhibit E, and
(iii) the parties listed on Schedule 5.3(a)(iii), in the form of consent
attached as Exhibit F;
(b) Seller shall obtain and provide to Buyer the consents, as
evidenced by their signatures thereto, of (i) the parties listed on Schedule
5.3(b)(i), in the forms of consent attached hereto as Exhibit D and Exhibit E,
and (ii) the parties listed on Schedule 5.3(b)(ii), in the form of Exhibit F;
and
(c) Buyer and Seller shall obtain the consents of their
respective channel lessors for exchanges of channels in the Charlotte market,
such that the Charlotte market may be rationalized in accordance with Section
5.4. Buyer and Seller shall work cooperatively following the date of this
Agreement to promptly identify the Charlotte channels to be exchanged.
No later than the Exchange Date, Buyer and Seller each shall notify the other,
in writing, of the consents it is able to deliver to the other pursuant to this
Section 5.3, and shall provide such evidence of its ability to deliver such
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consents as the other may reasonably request. In the event either Buyer or
Seller is able to deliver to the other all of the consents it is required to
obtain and deliver pursuant to this Section 5.3 by the Exchange Date (the
"Prepared Party") and the other is not able to deliver all of the consents it is
required to deliver by such date (the "Delinquent Party"), then, at the election
of the Prepared Party, either (i) the parties shall exchange all of the consents
they are then able to deliver and the Delinquent Party thereafter shall use its
commercially reasonable best efforts to promptly deliver to the Prepared Party
all of the remaining consents the Delinquent Party is obligated to deliver under
this Section 5.3, or (ii) the parties shall exchange none of the consents until
either the Delinquent Party is able to deliver all of the consents it is
required to deliver or the Prepared Party elects to have the provisions of the
foregoing clause (i) apply, and in either case, for the period beginning on the
Effective Date and ending on the date all of the consents required to be
delivered pursuant to this Section 5.3 have been so delivered, the interest rate
on the Promissory Note shall be adjusted as follows:
(I) if Buyer is the Delinquent Party, then the interest
rate shall be increased by two percentage points; and
(II) if Seller is the Delinquent Party, then the interest
rate shall be decreased by two percentage points.
In the event neither Buyer nor Seller is able to deliver to the other all of the
consents it is required to obtain and deliver pursuant to this Section 5.3, but
thereafter either Buyer or Seller becomes able to deliver all such consents and
so notifies the other party and the other is not then so able, the party that
becomes able to deliver such consents shall be the "Prepared Party" hereunder as
of the date it notifies the other party of such fact and the other party shall
be the "Delinquent Party" hereunder as of such date.
5.4. Charlotte Rationalization. The parties shall rationalize
the Charlotte market by disaggregating, swapping and assigning Licenses therein
as required to create the channel rights set forth below. In accordance with
Section 5.3, the parties shall take all commercially reasonable steps necessary
to promptly obtain the consents of their respective lessors to swap channels
with each other and to promptly amend the leases with their respective lessees
to indicate such swaps, in order to create the following channel rights in the
Charlotte market:
(a) Buyer, or its designated affiliate,
shall have lease rights to Channels A4, B4, C1, C2, C3, C4,
D1, D2, D3, and D4 and ownership rights to Xxxxxxxx X0, X0, F1
and F2.
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(b) Seller, or its designated affiliate,
shall have lease rights to Xxxxxxxx X0, X0, X0, X0, X0, X0,
X0, X0, X0 and G4 and ownership rights to Xxxxxxxx X0, X0, X0,
X0, X0, X0, X0, MDS1 and MDS2.
Upon delivery of the consents described in Section 5.3, the parties shall take
all commercially reasonable steps necessary to obtain and consummate all
necessary FCC approvals to complete the Charlotte rationalization plan set forth
above.
The covenants set forth in this Section 5.4 shall survive termination of this
Agreement and shall remain in effect even if FCC Approval is denied or the
Second Payment is not made to Seller pursuant to Section 1.4.
5.5. WCS Licenses. Buyer, Seller, CTWC and WBS acknowledge and
agree that Seller is the holder of WCS licenses for the "A1 Block" and "B1
Block" for the Xxxxxxxxx - Xxxxxxxxxx - Xxxxxxxxxx Xxxxxx Xxxx (XXX 007) and the
"A1 Block" and "B1 Block" for the Xxxxxxx, Xxxxxxx Xxxxxx Xxxx (XXX 008) (the
"WCS Licenses"), that the WCS Licenses include rights for areas in the state of
North Carolina, and that Buyer, Seller, and CTWC previously agreed Seller would
partition the WCS Licenses to create separate WCS License rights for areas in
the state of North Carolina and transfer and assign all of the partitioned WCS
License rights for areas in the state of North Carolina to Buyer. Buyer, Seller,
CTWC and WBS further acknowledge and agree that Buyer's interest in Seller and
the Purchase Price have been determined as though such partitioning and transfer
and assignment already occurred and Buyer is the holder of the WCS License
rights for all areas in the state of North Carolina covered by the WCS Licenses.
Accordingly, Seller and WBS agree to take all commercially reasonable actions
necessary, or as may be reasonably requested by Buyer or CTWC, to cause the WCS
License rights to be partitioned to create separate WCS Licenses for any and all
areas in the state of North Carolina covered by the WCS Licenses and to cause
such separate North Carolina WCS Licenses to be assigned and transferred to
Buyer as soon as possible, without payment or other additional consideration.
This covenant shall survive termination of this Agreement and shall remain in
effect even if FCC Approval is denied or the Second Payment is not made to
Seller pursuant to Section 1.4.
6. INDEMNITY
6.1. Seller. Seller hereby agrees to indemnify, defend and
hold harmless Buyer and CTWC and their respective members and stockholders from
and against all demands, claims, actions or causes of action, assessments,
losses, damages, liabilities, costs and expenses (including,
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without limitation, taxes, interest, penalties and reasonable attorney's fees
and disbursements) asserted against, imposed upon or incurred by CTWC, Buyer or
their members or stockholders, directly or indirectly, by reason of, resulting
from or in connection with (i) the misrepresentation or material breach of any
representation or warranty made or given by Seller in this Agreement, or (ii)
the material breach of any covenant or agreement made or given by Seller in this
Agreement.
6.2. Buyer. Buyer hereby agrees to indemnify, defend and hold
harmless Seller and WBS and their respective Stockholders from and against all
demands, claims, actions or causes of action, assessments, losses, damages,
liabilities, costs and expenses (including, without limitation, taxes, interest,
penalties and reasonable attorney's fees and disbursements) asserted against,
imposed upon or incurred by Seller, WBS or their stockholders, directly or
indirectly, by reason of, resulting from or in connection with (i) the
misrepresentation or material breach of any representation or warranty made or
given by Buyer in this Agreement or the Pledge Agreement, or (ii) the material
breach of any covenant or agreement made or given by Buyer in this Agreement.
6.3. CTWC. CTWC hereby agrees to indemnify, defend and hold
harmless Seller and WBS and their respective members and stockholders from and
against all demands, claims, actions or causes of action, assessments, losses,
damages, liabilities, costs and expenses (including, without limitation, taxes,
interest, penalties and reasonable attorney's fees and disbursements) asserted
against, imposed upon or incurred by Seller, WBS, or their members or
stockholders, directly or indirectly, by reason of, resulting from or in
connection with (i) the misrepresentation or material breach of any
representation or warranty made or given by CTWC in this Agreement, or (ii) the
material breach of any covenant or agreement made or given by CTWC in this
Agreement.
6.4. WBS. WBS hereby agrees to indemnify, defend and hold
harmless Buyer and CTWC and their respective members and stockholders from and
against all demands, claims, actions or causes of action, assessments, losses,
damages, liabilities, costs and expenses (including, without limitation, taxes,
interest, penalties and reasonable attorney's fees and disbursements) asserted
against, imposed upon or incurred by Buyer, CTWC, or their members or
stockholders, directly or indirectly, by reason of, resulting from or in
connection with (i) the misrepresentation or material breach of any
representation or warranty made or given by WBS in this Agreement, or (ii) the
material breach of any covenant or agreement made or given by WBS in this
Agreement.
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7. MISCELLANEOUS
7.1. Additional Actions and Documents. Each party hereto shall
take or cause to be taken such further actions, shall execute, deliver, and file
or cause to be executed, delivered, and filed such further documents and
instruments, and shall obtain such consents as may be necessary or as any other
party hereto may reasonably request in order to fully effectuate the purposes,
terms, and conditions of this Agreement, whether before, at or after the closing
of transactions contemplated hereby.
7.2. Survival of Representations, Etc. All representations,
warranties, covenants, indemnities and other agreements made by any party to
this Agreement herein or pursuant hereto shall survive the closing of the
transactions contemplated hereby and any investigation, audit or inspection at
any time made by or on behalf of any party hereto.
7.3. Specific Performance. In addition to any other remedies
which a party to this Agreement may have at law or in equity, each Party hereby
acknowledges that the LLC Interest and the Channels are unique, and that the
harm to a party resulting from material breaches by another party of its
obligations under this Agreement cannot be adequately compensated by damages.
Accordingly, the parties agree that each party to this Agreement shall have the
right to have all obligations, undertakings, agreements, covenants and other
provisions of this Agreement specifically performed by the other parties, and
that each party shall have the right to obtain an order or decree of such
specific performance in any of the courts of the United States of America or of
any state or other political subdivision thereof.
7.4. Remedies Cumulative. The remedies provided herein shall
be cumulative and shall not preclude the assertion by either party of any other
rights or the seeking of any other remedies against the other, or their
respective successors or assigns.
7.5. No Brokers. Each of the parties hereto represents and
warrants to the other party that such party has not engaged any broker, finder
or agent in connection with the transactions contemplated by this Agreement and
has not incurred (and will not incur) any unpaid liability to any broker, finder
or agent for any brokerage fees, finders' fees or commissions, with respect to
the transactions contemplated by this Agreement.
7.6. Tax Matters. Buyer, Seller and CTWC agree that income tax
allocations for the taxable year including the Effective Date shall be made
using
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the "closing of the books method" as of the Effective Date. Notwithstanding the
foregoing, any deductions arising after the date of this Agreement and prior to
the Effective Date shall be specially allocated to the members of Buyer other
than Seller in light of the fact that Seller will not be making any additional
contributions to Buyer to fund such expenses.
7.7. Entire Agreement; Modification; Benefit; Assignment. This
Agreement (including the Exhibit hereto), together with the Promissory Note and
the Pledge Agreement, constitutes the entire agreement of the parties hereto
with respect to the matters contemplated herein and supersedes all prior oral
and written agreements with respect to the matters contemplated herein. This
Agreement may not be modified, deleted or amended except by written instrument
executed by the parties. All terms of this Agreement shall be binding upon, and
shall inure to the benefit of and be enforceable by, the parties hereto and
their respective successors and permitted assigns. It is the explicit intention
of the parties hereto that no person or entity other than the parties hereto is
or shall be entitled to bring any action to enforce any provision of this
Agreement against any of the parties hereto, and that the covenants,
undertakings, and agreements set forth in this Agreement shall be solely for the
benefit of, and shall be enforceable only by the parties hereto or their
respective successors and assigns.
7.8. Notices. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been duly
given or made as of the date delivered, mailed or transmitted, and shall be
effective upon receipt, if delivered personally, mailed by registered or
certified mail (postage prepaid, return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like changes of address) or sent by electronic transmission to the facsimile
number specified below:
(a) If to CTWC:
CT Wireless Communications, Inc.
0000X Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
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With a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
(b) If to Buyer:
Wireless One of North Carolina, L.L.C.
0000X Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
With a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
(c) If to Seller:
Wireless One, Inc.
c/o WorldCom Broadband Solutions Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx
With a copy (which shall not constitute notice) to:
WorldCom Broadband Solutions, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx XxXxxxxx, President and CEO, and
Gram Xxxxxxx, Chief Counsel
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(d) If to WBS:
WorldCom Broadband Solutions, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx XxXxxxxx, President and CEO, and
Gram Xxxxxxx, Chief Counsel
7.9. Governing Law. This Agreement, the rights and obligations
of the parties hereto, and any claims or disputes relating thereto, shall be
governed by and construed in accordance with the laws of the State of North
Carolina (but not including the choice of law rules thereof).
7.10. Expenses. Except for costs and expenses specifically
assumed by a party under this Agreement, each party hereto shall pay its own
expenses incident to this Agreement and the transactions contemplated hereunder,
including all legal and accounting fees and disbursements.
7.11. Severability. If any part of any provision of this
Agreement or any other agreement, document or writing given pursuant to or in
connection with this Agreement shall be invalid or unenforceable under
applicable law, said part shall be ineffective to the extent of such invalidity
or unenforceability only, without in any way affecting the remaining parts of
said provision or the remaining provisions of this Agreement.
7.12. Waiver. Neither the waiver by any of the parties hereto
of a breach of or a default under any of the provisions of this Agreement, nor
the failure of any of the parties, on one or more occasions, to enforce any of
the provisions of this Agreement or to exercise any right or privilege hereunder
shall thereafter be construed as a waiver of any subsequent breach or default of
a similar nature, or as a waiver of any of such provisions, rights or privileges
hereunder.
7.13. Pronouns; Headings. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine, neuter, singular or
plural, as the identity of the person or entity may require. Section and
subsection headings contained in this Agreement are inserted for convenience of
reference only, shall not be deemed to be a part of this Agreement for any
purpose, and shall not in any way define or affect the meaning, construction or
scope of any of the provisions hereof.
7.14. Counterparts. This Agreement may be executed in separate
counterparts, none of which need contain the signatures of all parties, each of
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which shall be deemed to be an original, and all of which taken together
constitute one and the same instrument. It shall not be necessary in making
proof of this Agreement to produce or account for more than the number of
counterparts containing the respective signatures of, or on behalf of, all the
parties hereto.
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IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be duly executed on its behalf, as of the day and year first
written above.
BUYER:
WIRELESS ONE OF NORTH CAROLINA, L.L.C.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------
Title: Treasurer
--------------------------
SELLER:
WIRELESS ONE, INC.
By: /s/ Xxxxx XxXxxxxx
---------------------------------
Name: Xxxxx XxXxxxxx
---------------------------
Title: President and CEO
--------------------------
CTWC:
CT WIRELESS CABLE, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------
Title: Treasurer and Senior Vice
--------------------------
President
-------------------------
WBS:
WORLDCOM BROADBAND SOLUTIONS, INC.
By: /s/ Xxxxx XxXxxxxx
---------------------------------
Name: Xxxxx XxXxxxxx
---------------------------
Title: President and CEO
--------------------------
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