Exhibit 10.39
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into as
of this 22 day of February, 2001, by and between UBIQUITEL INC., a
Delaware corporation ("Seller"), and VOICESTREAM PCS BTA I LICENSE
CORPORATION, a Delaware corporation ("Purchaser"). Seller and Purchaser are
sometimes referred to herein collectively as the "Parties" and each as a
"Party."
ARTICLE I
ACQUISITION OF LICENSE
1.1 LICENSES SUBJECT TO SALE. Seller hereby agrees to sell to
Purchaser, and Purchaser hereby agrees to purchase from Seller at the
Closing, subject to the approval of the Federal Communications Commission
(the "FCC"), a One Hundred percent (100%) interest in the Personal
Communications Services ("PCS") licenses (the "Licenses") as provided in
Exhibit A that currently authorize VIA Wireless LLC ("VIA Wireless") to
construct and operate a PCS system in the identified markets. All of the
Licenses are presently owned by VIA Wireless. Seller has entered into an
agreement with VIA Wireless to acquire all of such Licenses from VIA Wireless
on or before the Closing (the "VIA Wireless Agreement").
1.2 PURCHASE PRICE. Purchaser agrees to pay to Seller an aggregate
purchase price of Fifty Million Dollars ($50,000,000.00) (the "Purchase
Price") for the Licenses. Of this amount Ten Million Dollars ($10,000,000.00)
represents the purchase price for the Bakersfield License (as defined in
Section 2.4 below). The Purchase Price shall be paid to Seller at Closing by
wire transfer of immediately available funds. Purchaser shall be responsible
for any Unjust Enrichment Payment that may be imposed by reason of the
assignment of the Licenses from Seller to Purchaser. Purchaser shall not
assume any other responsibility to pay any penalty fees or assessments to the
FCC, including any obligation to pay any Unjust Enrichment Payment that may
arise by reason of the transfer of control over, or assignment of, the
Licenses from VIA Wireless to Seller. Seller shall be responsible or liable
for the payment of any other penalty fee or assessment due to the FCC for any
reason whatsoever, including those relating to the acquisition, ownership or
operation of the Licenses or any facilities operating under the authority of
the Licenses on or before the Closing, unless the basis for the penalty, fee,
or assessment is the result, in whole or in material part, of actions by
Purchaser.
1.3 NO OTHER ASSUMPTION OF LIABILITIES. Except as expressly
provided herein, upon the sale, transfer, and delivery of the Licenses,
Purchaser shall not assume any obligation or liability of Seller or VIA
Wireless, and the Licenses shall be delivered to Purchaser free and clear of
all liens, claims, encumbrances, or restrictions other than restrictions that
are generally applicable to FCC licenses of the same type.
ARTICLE II
COVENANTS AND AGREEMENTS
2.1 COVENANTS OF SELLER. Seller covenants and agrees from and after
the execution and delivery of this Agreement to and including the Closing
date as follows:
2.1.1 Seller shall use its reasonable best efforts to cause
the transactions contemplated by this Agreement to be consummated in
accordance with the terms hereof and, without limiting the generality of the
foregoing, use reasonable best efforts to obtain all necessary approvals,
consents, and other authorizations required in connection with this Agreement
and the transactions contemplated hereby.
2.1.2 Seller shall comply with any and all requirements that
may be set forth in the VIA Wireless Agreement relating to the transfer or
assignment of control of the Licenses from VIA Wireless to Seller. Seller
shall use reasonable commercial efforts to consummate the VIA Wireless
Agreement, and to avoid violating any material obligation set forth in the
VIA Wireless Agreement the violation of which would have a material adverse
effect on Seller's ability to consummate the transaction contemplated
hereunder; provided, however, that Purchaser acknowledges that the VIA
Wireless Agreement is subject to conditions precedent to closing on the part
of all parties thereto and the good faith exercise by Seller of any of its
rights and remedies under the VIA Wireless Agreement shall not be in breach
of this Section 2.1.2.
2.1.3 Seller shall not authorize or engage in any written or
oral discussions or negotiations with, or provide any information regarding,
the Licenses to, any potential acquirer of the Licenses or of control of the
Licenses, or any affiliate, agent, or designee of a potential acquirer of the
Licenses or of control of the Licenses ("Potential Acquirer") other than
Purchaser or an affiliate of Purchaser. Such restrictions shall apply to, but
are not limited to, the solicitation or active encouragement of any offers
from a Potential Acquirer in connection with the acquisition of the Licenses.
2.1.4 VIA Wireless or Seller shall timely pay any and all
amounts that come due under obligations to the FCC or the United States
Treasury that relate to the acquisition or maintenance of the Licenses (the
"FCC Debt") before the Closing.
2.2 COVENANTS OF PURCHASER. Purchaser covenants and agrees from and
after the execution and delivery of this Agreement to and including the
Closing date as follows:
2.2.1 Purchaser shall use its reasonable best efforts to
cause the transactions contemplated by this Agreement to be consummated in
accordance with the terms hereof and, without limiting the generality of the
foregoing, use reasonable best efforts to obtain all necessary approvals,
consents, and other authorizations required in connection with this Agreement
and the transactions contemplated hereby; provided, however, that Purchaser
shall not be required to take any action or make any agreement if such action
or agreement requires any change to the business, structure or existing
agreements of Purchaser or its members.
2.2.2 Purchaser shall not take any action that might have a
material adverse effect on Purchaser's ability to consummate the transactions
contemplated by this Agreement.
2.3 FCC MATTERS. Seller and Purchaser covenant and agree from and
after the execution and delivery of this Agreement to and including the
Closing date that the Parties will file within ten days of the date of this
Agreement (or on such earliest possible date thereafter if such application
cannot be filed concurrently with the applications for transfer of control of
VIA Wireless to Seller) the FCC joint applications requesting the approval of
the transfer of the
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Licenses to Purchaser, and, if applicable, will submit as promptly as
practicable after the date of this Agreement all necessary filings with the
Department of Justice and the Federal Trade Commission pursuant to the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended ("HSR Act").
Each of the Parties hereto shall diligently take or cooperate in the taking
of all steps that are necessary or appropriate to expedite the prosecution
and favorable consideration of such applications. The Parties agree to
consult with one another as to the approach to be taken with the FCC with
respect to obtaining any necessary consent or authority to the transactions
contemplated hereby, and each of the Parties shall keep the other Party
reasonably informed as to the status of any such communications with the FCC.
2.4 POST CLOSING MATTERS. If the Closing occurs within twelve (12)
months of the date of this Agreement and at the Closing Seller reasonably
expects to have then current customers on the A Block License for the
Bakersfield, CA BTA ("Bakersfield License"), Purchaser shall cooperate with
Seller in seeking from the FCC special temporary authority or other interim
arrangements as appropriate ("STA") to continue to provide service to
Seller's then current customers on the Bakersfield License following its
assignment from Seller by Purchaser for a limited period of time. The purpose
of the STA will be to provide Seller with an opportunity to obtain spectrum
elsewhere in the A Block (i.e., outside of the spectrum covered by the
Bakersfield License) to transition its customers. The period of such use
shall in no event continue beyond the earlier of the date that is (i) six
months after Closing or (ii) twelve months after the date of this Agreement.
In consideration for the temporary use of the Bakersfield License after
Closing under the authority of the STA during the term set forth above,
Seller agrees to pay to Purchaser the sum of One Hundred Thousand Dollars
($100,000) for each month during which it makes use of such License under the
STA. Such amount shall be prorated on a daily basis for any period of use
that is less than a full month. Such amount shall be paid to Purchaser on or
before the fifth (5th) business day after the end of each month during which
Seller makes use of the Bakersfield License under the STA. Seller shall be
responsible for all fees and costs associated with the STA.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as follows:
3.1 Seller is a corporation, duly organized, validly existing and
in good standing under the laws of Delaware, with all requisite power and
authority to hold the Licenses and to operate facilities under the authority
of the Licenses.
3.2 The execution and delivery of this Agreement by Seller, the
consummation of the transactions contemplated herein, and the performance by
Seller of its obligations hereunder are within its power and authority. All
actions necessary to authorize the execution, delivery and performance of
this Agreement by Seller have been taken.
3.3 This Agreement has been, and at the Closing will have been,
duly and validly executed and delivered by Seller, and this Agreement
constitutes the legal, valid and binding obligation of Seller. This Agreement
is enforceable against Seller in accordance with its terms,
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except as enforceability thereof may be limited by applicable bankruptcy,
reorganization, insolvency or other laws affecting creditors' rights
generally or by general principles of equity, regardless of whether such
enforceability is considered in equity or at law.
3.4 The execution, delivery and performance of this Agreement, the
consummation of the transactions contemplated hereby and the compliance with
the provisions hereof by Seller will not violate any provisions of the
organizational and operational documents governing Seller, result in the
breach of, or constitute a default under, or result in the creation of any
lien, charge, or encumbrance upon the Licenses under the provisions of any
agreement or other instrument to which Seller is a party, or violate any
laws, regulations, orders or judgments applicable to Seller.
3.5 Except for (i) if applicable, a notice filing to the California
Public Utility Commission, (ii) the consent of the FCC to the assignment of
the Licenses and (iii) if applicable, expiration or early termination of the
waiting period pursuant to the HSR Act, no consent, approval or filing with
any governmental or regulatory authority is required to be made or obtained
by Seller in connection with its execution and delivery of and performance of
its obligations under this Agreement.
3.6 Seller has a binding bank commitment dated February 9, 2001,
that assuming the terms and conditions thereunder are met, Seller reasonably
expects to have the financial resources necessary to meet its financial
obligations under this Agreement and under the VIA Wireless Agreement in a
timely manner.
3.7 To the best knowledge of Seller, Seller is eligible to hold an
entrepreneur block license under Section 1.2110 and 24.709 of the FCC's
rules, and Seller has no actual knowledge of any fact or condition that would
make it ineligible to hold the License.
3.8 Seller will enter into a binding agreement under which it will
have the right to, on or before the Closing date, obtain, own and control one
hundred percent (100%) of the interests in the Licenses, without restriction
or limitation other than those FCC restrictions that are generally applicable
to FCC licenses of the same type, subject only to the consummation of such
agreement according to its terms.
3.9 The Licenses shall be maintained in full force and effect and
no action shall be taken by Seller, and Seller shall not authorize or (to the
extent of its ability) permit VIA Wireless or any other party to take any
action, that might have a material adverse effect on the Licenses or Seller's
ability to consummate the transactions contemplated by this Agreement.
3.10 Except with respect to any encumbrance that is generally
imposed by the Communications Act of 1934, as amended, and all applicable FCC
rules, regulations and policies promulgated thereunder (the "Act"), on a
license of the type being acquired by Purchaser, the Licenses at the Closing
will be unencumbered and free of any liens, charges or defects.
3.11 Neither Seller nor VIA Wireless has any legal obligation,
absolute or contingent, to any other person or entity to sell, transfer,
assign or otherwise convey the Licenses or any interest therein to any other
person or entity except as contemplated by this Agreement and by the VIA
Wireless Agreement.
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3.12 All license or other fees and charges that have become due and
payable with respect to the Licenses pursuant to any application, filings,
recordings and registrations with, and all validations and exemptions,
approvals, orders by authorizations, consents, certificates and permits from,
the FCC have been paid and will be paid as the same come due.
3.13 There are no material violations of the FCC rules or
regulations, or of any other state or local laws, rules or regulations, with
respect to the Licenses, and the Licenses have been duly issued under the
Communications Act of 1934, as amended, the rules and regulations of the FCC
and all other applicable governmental agencies. There is no outstanding
adverse decree, order or other ruling that has been issued by the FCC or any
other governmental entity against VIA Wireless, Seller, or any other party
with respect to the Licenses, and there is no complaint, investigation,
proceeding, petition, notice of violation, notice of apparent liability or
mutually exclusive application pending or to the best of Seller's knowledge
threatened, by or before the FCC against VIA Wireless, Seller, or any other
party with respect to the Licenses.
3.14 To the best of Seller's knowledge, no event has occurred that
permits or, after notice or lapse of time or both, would permit revocation or
termination of the Licenses or would materially adversely affect any of the
rights of VIA Wireless or Seller thereunder.
3.15 With the exception of certain obligations of Seller and VIA
Wireless associated with their activities before the Closing, neither Seller
nor VIA Wireless has received any notice of any obligations to reimburse any
third party for any relocation expenses required under 47 C.F.R. Sections
24.239-24.253, inclusive, and any successor provision thereto, with respect
to the Licenses.
3.16 Seller (or Seller's predecessors in interest with respect to
the Licenses) has complied with the notification and response requirements
applicable to frequency coordination with other FCC licensees as set forth in
Section 101.103 of the FCC's rules (47 C.F.R. Section 101.103), and, to the
extent that Seller (or Seller's predecessors in interest with respect to the
Licenses) has become aware of other users of the licensed frequencies through
such notification and response requirements, Seller (or Seller's predecessors
in interest with respect to the Licenses) has completed clearing of all
microwave incumbents from all portions of the spectrum and territory being
used by Seller in the operation of its systems pursuant to the Licenses.
Furthermore, except for such obligations as have been incurred by Seller (or
Seller's predecessors in interest with respect to the Licenses) prior to the
Closing, Seller (including Seller's predecessors) is not obligated to
reimburse any third parties (including other PCS licensees or microwave
incumbents) for any costs associated with any microwave clearing that
benefited Seller's operations pursuant to the Licenses. Seller shall be
responsible for the payment of all microwave relocation costs associated with
activities occurring prior to the Closing (whether relating to microwave
incumbents or to other PCS license holders clearing microwave incumbents that
are associated with the build-out or operations of Seller or Seller's
predecessors in interest), but Seller shall not be responsible for the
payment of any microwave relocation costs associated with activities relating
to further build-out of the Licenses by Purchaser or Purchaser's successors
in interest that occur subsequent to the Closing.
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3.17 All five (5) year construction requirements for the F Block
Licenses have been met, and all necessary filings with the FCC confirming the
same have been made or will be made before the Closing.
3.18 The FCC Debt shall be paid in full on or before the Closing.
3.19 Except for this Agreement and the VIA Wireless Agreement,
neither Seller nor VIA Wireless is a party to any contract, commitment or
similar agreement or arrangement, whether written or oral, by which the
Licenses are bound or affected.
3.20 There are no actions, claims, proceedings, suits or
investigations pending, or threatened against VIA Wireless, Seller or the
Licenses before any court, arbitrator or administrative or governmental body:
(i) relating to the Licenses or which seek to revoke, rescind, cancel, modify
or refuse to renew any of the Licenses, or (ii) relating to the transactions
contemplated hereby or under the terms of the VIA Wireless Agreement. There
is no judgment, order or decree relating to the Licenses or the transactions
contemplated hereby.
3.21 At the Closing, except as may otherwise be provided under the
terms of an STA issued in accordance with the provisions of Section 2.4
above, no part of the spectrum provided under the authority of the Licenses
will be in use by any party, and no party will be providing any
telecommunication or data services under the authority of the Licenses.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to the Seller as follows:
4.1 Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
4.2 The execution and delivery of this Agreement by Purchaser, the
consummation of the transactions contemplated herein, and the performance by
Purchaser of its obligations hereunder are within its power and authority.
All actions necessary to authorize the execution, delivery and performance of
this Agreement by Purchaser have been taken.
4.3 This Agreement has been, and at the Closing will have been,
duly and validly executed and delivered by Purchaser, and this Agreement
constitutes the legal, valid and binding obligation of Purchaser. This
Agreement is enforceable against Purchaser in accordance with its terms,
except as enforceability thereof may be limited by applicable bankruptcy,
reorganization, insolvency or other laws affecting creditors' rights
generally or by general principles of equity, regardless of whether such
enforceability is considered in equity or at law.
4.4 The execution, delivery and performance of this Agreement, the
consummation of the transactions contemplated hereby and the compliance with
the provisions hereof by Purchaser will not violate any provisions of the
articles of incorporation or bylaws governing Purchaser, result in the breach
of, or constitute a default under, the provisions of any agreement or other
instrument to which Purchaser is a party, or violate any laws, regulations,
orders or judgments applicable to Purchaser.
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4.5 Except for (i) if applicable, a notice filing to the California
Public Utility Commission, (ii) the consent of the FCC to the assignment of
the Licenses and, (iii) if applicable, expiration or early termination of the
waiting period pursuant to the HSR Act, no consent, approval or filing with
any governmental or regulatory authority is required to be made or obtained
by Purchaser in connection with its execution and delivery of and performance
of its obligations under this Agreement.
4.6 Purchaser has or has available to it the financial resources to
meet its financial obligations under this Agreement.
ARTICLE V
THE CLOSING
The consummation of the transactions contemplated by this Agreement (the
"Closing") shall take place on the tenth (10th) business day after the
satisfaction or written waiver of the conditions set forth in Sections 6.1,
6.3, 6.4, 6.5, 7.1, 7.2, 7.4, and 7.5.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATION OF SELLER TO CLOSE
The obligations of Seller to sell the Licenses and to otherwise
consummate the transactions contemplated by this Agreement are subject to the
satisfaction, on or prior to the Closing date, of each of the following
conditions:
6.1 All representations and warranties of Purchaser contained in
this Agreement shall be true and correct in all material respects at and as
of the Closing date as if such representations and warranties were made at
and as of the Closing date, and all covenants made by Purchaser herein shall
have been complied with in all material respects.
6.2 Seller shall have received payment of the Purchase Price in
accordance with Article I of this Agreement.
6.3 The FCC shall have granted the Assignment Application without
the imposition of material adverse restrictions or conditions, and such grant
shall have become an order by the FCC that is final and non-appealable.
6.4 If applicable, any waiting period required by the HSR Act shall
have lapsed or been terminated, and any investigation of the transactions
contemplated by this Agreement commenced by the Department of Justice and/or
the Federal Trade Commission pursuant to the HSR Act shall have been
terminated.
6.5 Seller shall have acquired from VIA Wireless all right, title
and interest in and to 100% of the interests in the Licenses, free and clear
of any lien, claim, restriction or limitation other than those FCC
restrictions that are generally applicable to FCC licenses of the same type.
6.6 An STA shall have been granted by the FCC in accordance with
the provisions of Section 2.4; provided that this condition shall expire and
be of no further effect twelve (12) months after the date of this Agreement.
At Purchaser's election this condition shall also not
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apply with respect to a Closing on the Licenses other than the Bakersfield
License that are the subject of this Agreement.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATION OF PURCHASER TO CLOSE
The obligations of Purchaser to purchase the Licenses and to otherwise
consummate the transactions contemplated by this Agreement are subject to the
satisfaction, on or prior to the Closing date, of each of the following
conditions:
7.1 All representations and warranties of Seller contained in this
Agreement shall be true and correct in all material respects at and as of the
Closing date as if such representations and warranties were made at and as of
the Closing date, and all covenants made by Seller herein shall have been
complied with in all material respects.
7.2 Seller shall have acquired from VIA Wireless all right, title
and interest in and to 100% of the interests in the Licenses, free and clear
of any lien, claim, restriction or limitation other than those FCC
restrictions that are generally applicable to FCC licenses of the same type.
The grant of the assignment of the Licenses to Seller from VIA Wireless shall
have become an order by the FCC which is final and non-appealable.
7.3 Any fees or costs resulting from the assignment of the Licenses
from VIA Wireless to Seller (including any unjust enrichment payment assessed
by the FCC pursuant to Section 1.2111 of the FCC's rules as a result of the
assignment of the Licenses from VIA Wireless to Seller (the "Unjust
Enrichment Payment") or any other penalty charge) shall have been paid in
full by Seller.
7.4 The FCC shall have granted the Assignment Application without
the imposition of material adverse restrictions or conditions, and such grant
shall have become an order by the FCC which is final and non-appealable.
7.5 If applicable, any waiting period required by the HSR Act shall
have lapsed or been terminated, and any investigation of the transactions
contemplated by this Agreement commenced by the Department of Justice and/or
the Federal Trade Commission pursuant to the HSR Act shall have been
terminated.
7.6 Seller shall have delivered to Purchaser an opinion of Seller's
FCC counsel in a form reasonably satisfactory to Purchaser and its counsel.
7.7 Seller shall have delivered to Purchaser an opinion of Seller's
corporate counsel in a form reasonably satisfactory to Purchaser and its
counsel.
7.8 Seller shall have delivered to Purchaser an Assignment of
License Agreement executed by a duly authorized officer of Seller.
7.9 An STA shall have been granted by the FCC in accordance with
the provisions of Section 2.4; provided that this condition shall expire and
be of no further effect twelve (12) months after the date of this Agreement.
At Purchaser's election this condition shall also not
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apply with respect to a Closing on the Licenses other than the Bakersfield
License that are the subject of this Agreement.
ARTICLE VIII
INDEMNIFICATION
8.1 The representations and warranties contained in this Agreement
(or in any documents delivered in connection herewith) shall be deemed to
have been made on the date of this Agreement and on the Closing date, shall
be deemed to be material and to have been relied upon by the Parties
notwithstanding any investigation made by the Parties, shall survive the
Closing date, and shall remain operative and in full force and effect until
the last day of the eighteenth calendar month following the Closing date,
except that the representations and warranties contained in Sections 3.5,
3.7, 3.9, 3.10, 3.11, 3.13, 3.14, 3.15, 3.16, 3.17, and 3.20 of Article III
shall survive without limitation as to time.
8.2 Seller shall indemnify and hold harmless Purchaser and its
affiliates from any and all demands, claims, losses, liabilities, actions or
causes of action, assessments, actual damages, fines, taxes, penalties,
reasonable costs and expenses (collectively, "Losses" and each a "Loss")
incurred or suffered by Purchaser or its affiliates, and their respective
officers, directors, employees, agents and representatives, arising out of,
resulting from, or relating to any breach by Seller of a representation,
warranty or covenant made in this Agreement or in any agreement or
certificate delivered by Seller pursuant to this Agreement or arising out of
(i) events relating to the ownership of the Licenses or the conduct of any
business under the authority of the Licenses occurring on or before the
Closing Date which relate to the Licenses and (ii) the conduct of Seller's
PCS business under the authority of the STA with respect to the Bakersfield
License during the period from the Closing date through the last date on
which Seller is making use of the Bakersfield License under the authority of
the STA (the "STA Period").
8.3 Purchaser shall indemnify and hold harmless Seller and its
affiliates from (i) any and all Losses incurred or suffered by Seller or its
affiliates, and their respective officers, directors, employees, agents and
representatives, arising out of, resulting from, or relating to any breach by
Purchaser of a representation, warranty or covenant made in this Agreement or
in any agreement or certificate delivered by Purchaser pursuant to this
Agreement, or arising out of events relating to the ownership of the Licenses
or the conduct of any business under the authority of the Licenses occurring
after the Closing Date which relate to the Licenses, other than to the extent
arising out of the conduct of Seller's business under the authority of the
STA with respect to the Bakersfield License during the STA Period.
8.4 Losses recoverable for a breach of this Agreement or under any
indemnification obligation set forth in this Article VIII shall be limited to
actual damages, and no Party shall recover consequential, punative, lost
opportunity or special damages of any nature, regardless of the nature of
such Party's claim or such Party's theory of liability.
8.5 In the absence of fraud, the indemnification provisions of this
Article VIII shall be the exclusive legal remedy for any Losses in connection
with this Agreement or any breach hereof. Notwithstanding the foregoing, the
obligations of Seller and Purchaser under this Agreement are unique. If
either party should default in its obligations under this Agreement, the
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parties acknowledge that it would be extremely impracticable to measure the
resulting damages; accordingly, in addition to any other available rights or
remedies, either party may xxx in equity for specific performance, and the
parties expressly waive the defense that a remedy in damages will be adequate.
ARTICLE IX
TERMINATION
9.1 TERMINATION. This Agreement may be terminated at any time prior
to the Closing by:
9.1.1 Mutual consent of Seller and Purchaser;
9.1.2 Seller or Purchaser upon written notice to the other if
the Assignment Application has not been granted by the FCC by an order which
is final and non-appealable, within eighteen (18) months of the date of this
Agreement;
9.1.3 Seller or Purchaser in the event that any governmental
authority shall have issued an order, decree or ruling or taken any other
action restraining, enjoining or otherwise prohibiting the transactions
contemplated by this Agreement and such order, decree, ruling or other action
shall have become final and non-appealable;
9.1.4 Subject to the provisions of Section 9.3, Purchaser if
(i) an event or condition occurs that has permitted, or after notice or lapse
of time or both would permit, revocation or termination of the Licenses or
has or would materially adversely affect any of the rights of Seller
thereunder; (ii) any representation or warranty of Seller contained in this
Agreement shall not have been true or correct in all material respects when
made; or (iii) Seller shall not have complied in all material respects with
any covenant or agreement to be complied with by it and contained in this
Agreement;
9.1.5 Subject to the provisions of Section 9.4, Seller if (i)
an event or condition occurs that has permitted, or after notice or lapse of
time or both would permit, revocation or termination of the Licenses or has
or would materially adversely affect any of the rights of Purchaser
thereunder; (ii) any representation or warranty of Purchaser contained in
this Agreement shall not have been true or correct in all material respects
when made; or (iii) Purchaser shall not have complied in all material
respects with any covenant or agreement to be complied with by it and
contained in this Agreement;
9.1.6 Purchaser if the FCC has imposed any material adverse
restriction or condition on the Licenses or the assignment thereof; and
9.1.7 Seller if the VIA Wireless Agreement is terminated and
such termination prevents Seller from being able to acquire control over, or
an assignment of, the Licenses, and such termination is caused by a reason or
reasons other than Seller's breach of the VIA Wireless Agreement.
9.2 Neither party may terminate this Agreement pursuant to this
Section if such party is in material default hereunder, or if a delay in any
decision or determination by the FCC
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respecting the application to transfer the Licenses has been caused or
materially contributed to by such party's action or inaction with respect to
such application.
9.3 If Purchaser discovers, by reason of a written notice given
pursuant to this Agreement or otherwise, circumstances that would give it the
right to terminate this Agreement pursuant to Section 9.1.4, then Purchaser
shall deliver a written notice to Seller of such circumstances, specifying
the factual basis therefor in reasonable detail. Seller shall have the right
to cure any such matter within twenty (20) days following the date of
delivery of such notice, unless it is manifest that such matter is not
curable. If such circumstances create a termination right pursuant to Section
9.1.4, then after such written notice and Seller's failure to cure, or
immediately following such written notice if it is manifest that such matter
is not curable, Purchaser may terminate this Agreement by giving written
notice of termination to Seller.
9.4 If Seller discovers, by reason of a written notice given
pursuant to this Agreement or otherwise, circumstances that would give it the
right to terminate this Agreement pursuant to Section 9.1.5, then Seller
shall deliver a written notice to Purchaser of such circumstances, specifying
the factual basis therefor in reasonable detail. Purchaser shall have the
right to cure any such matter within twenty (20) days following the date of
delivery of such notice, unless it is manifest that such matter is not
curable. If such circumstances create a termination right pursuant to Section
9.1.5, then after such written notice and Purchaser's failure to cure, or
immediately following such written notice if it is manifest that such matter
is not curable, Seller may terminate this Agreement by giving written notice
of termination to Purchaser.
ARTICLE X
BROKERS
Neither Seller nor Purchaser nor any of their respective affiliates has
entered into or will enter into any contract, agreement, arrangement or
understanding with any person or firm which will result in the obligation of
the other Party to pay any finders fee, brokerage commission or similar
payment in connection with the transactions contemplated hereby.
ARTICLE XI
FORM OF AGREEMENT
11.1 MODIFICATION AND WAIVER. This Agreement constitutes the entire
agreement between the Parties pertaining to the subject matter contained
herein and supersedes all prior and contemporaneous agreements,
representations, and understandings of the Parties. No supplement,
modification, or amendment of this Agreement shall be binding unless executed
in writing by all of the Parties.
11.2 COUNTERPARTS. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
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ARTICLE XII
MISCELLANEOUS
12.1 GOVERNING LAW. This Agreement shall be construed in accordance
with, and governed by, the laws of the State of Delaware, without giving
effect to principles of conflicts of law.
12.2 ASSIGNMENT. Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by Seller or Purchaser without the
prior written consent of the other, except that either Party may, without
such consent, assign its right, title and interest in, to and under this
Agreement to an affiliate, but in all events the signatories hereto shall
remain responsible for their respective obligations hereunder. Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of
the Parties hereto and their respective successors and assigns.
12.3 CONFIDENTIALITY. The Parties agree to hold in confidence all
terms and conditions of this Agreement, including, but not limited to, the
fact that discussions are taking place with respect thereto or the status
thereof, except that the Parties may disclose documents, materials, or
information to third parties including, but not limited to: (i) their
respective partners, principals, and affiliates and (ii) their respective
representatives, including attorneys, accountants, investment bankers, and
lenders, who are required to know that information for the proper performance
of their duties in effectuating the assignment of the Licenses; provided,
however, that the disclosing party notifies all parties to whom information
is disclosed that the information must be kept confidential in accordance
with the terms of this Agreement. Notwithstanding the foregoing, either Party
may disclose confidential information as is required (in the opinion of its
counsel) by law (including, but not limited to, the United States securities
laws).
12.4 PUBLICITY. So long as this Agreement is in effect, the parties
agree to consult with each other in issuing any press release or otherwise
making any public statement with respect to the transactions contemplated by
this Agreement. Each party shall submit to the other party, for its prior
written approval, which will not be unreasonably withheld or delayed, any
press release or any other public statement with respect to the transactions
contemplated hereunder. The parties agree that under no circumstances shall
Seller identify Purchaser by name and/or reference, directly or indirectly,
or disclose the Purchase Price. Notwithstanding the foregoing, either party
may issue press releases and other disclosures as required (in the opinion of
its counsel) by law, rule, regulation, court order or stock exchange rule or
regulation (including, but not limited to, the United States securities laws)
and in such event, the disclosing party will provide at least two (2)
business days prior written notice.
12.5 NOTICES. Unless otherwise provided herein, any notice, consent,
request, instruction or other document to be given hereunder by any Party to
the other shall be in writing and delivered in person or by courier, or by
facsimile transmission (with transmission confirmed) or mailed by registered
or certified mail, postage prepaid, return receipt requested as follows:
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If to Purchaser:
VoiceStream PCS BTA I License Corporation
00000 XX 00xx Xxxxxx
Xxxxxxxx XX 00000-0000
Attn: Xxxxxxx Goo
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxxxx, P.S.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn.: Xxxxxxx X. Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
If to Seller:
Ubiquitel Inc.
Xxx Xxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xx 00000
Attn: Xxxxxx X. Xxxxxx and Xxxxxxxx X. Xxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxxxxxx Traurig, LLP
0000 Xxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxxx Xxxxxx, XX 00000
Attn: Xxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Or to such other place and with such other copies as either party may
designate to itself by written notice to the others. All such notices and
communications shall be deemed to have been duly given at the time delivered
by hand, if personally delivered; five business days after being deposited in
the mail, first class postage prepaid, return receipt requested, if mailed;
when receipt confirmed (or if receipt is confirmed after normal business
hours, as of the next business day) if sent by facsimile; and two business
days after timely delivery to the courier, if sent by an overnight air
courier service guaranteeing next day delivery.
12.6 EXPENSES. If applicable, Seller and Buyer will equally share
the cost of any required filing fee under the HSR Act and any filing fees
required in connection with the FCC joint applications requesting the
approval of the transfer of the Licenses from Seller to Purchaser.
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In all other respects Seller and Purchaser will each be liable for its own
expenses incurred in connection with the negotiation, preparation, execution
or performance of this Agreement.
12.7 HEADINGS. The headings of the Articles and Sections of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction hereof.
12.8 SEVERABILITY. Any term or provision or this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement in any other jurisdiction. If any provision of this Agreement is so
broad as to be unenforceable, such provision shall be interpreted to be only
so broad as is enforceable.
12.9 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which shall constitute
one and the same instrument.
12.10 NO THIRD-PARTY BENEFICIARIES. With the exception of the Parties
to this Agreement and their permitted successors and assigns, there shall
exist no right of any person to claim a beneficial interest in this Agreement
or any rights occurring by virtue of this Agreement.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Parties to this Agreement have duly executed it
on the day and year first above written.
SELLER: PURCHASER:
UBIQUITEL INC. VOICESTREAM PCS BTA I LICENSE
CORPORATION
By: By:
------------------------------------------ --------------------------------
Its: President and Chief Executive Officer Its:
--------------------------------
EXHIBIT A
List of Licenses
---------------------------------------- -------------------------------------- --------------------------------------
LICENSE BTA/MTA LOCATION
---------------------------------------- -------------------------------------- --------------------------------------
KNLF897 XXX000 Xxxxxx, XX
---------------------------------------- -------------------------------------- --------------------------------------
KNLG657 XXX000 Xxxxxxxx, XX
---------------------------------------- -------------------------------------- --------------------------------------
KNLG658 BTA303 Modesto, CA
---------------------------------------- -------------------------------------- --------------------------------------
KNLG659 BTA458 Visalia-Porterville-Hanford, CA
---------------------------------------- -------------------------------------- --------------------------------------
KNLG660 BTA291 Merced, CA
---------------------------------------- -------------------------------------- --------------------------------------
WPOL258 XXX000 Xxxxxxxxxxx, XX
(Sub 2)
---------------------------------------- -------------------------------------- --------------------------------------
