Exhibit 10.33
Agreement in Support of Charter Obligations
Agreement, dated as of January 29, 1999, between Nextel WIP Corp., a
Delaware corporation ("NWIP"), and Nextel Partners, Inc., a Delaware corporation
(the "Company").
Whereas, concurrently herewith the parties are entering into a
Shareholders' Agreement, dated as of the date hereof (the "Shareholders'
Agreement"), with the shareholders of The Company named therein, pursuant to
which NWIP has certain rights and obligations, under the circumstances specified
therein and subject to the terms and conditions thereof, to purchase all of the
outstanding capital stock of The Company not held by the Nextel Shareholders (as
defined in the Shareholders' Agreement);
Whereas, concurrently herewith The Company is filing with the office of
the Secretary of State of Delaware a Restated Certificate of Incorporation (the
"Restated Certificate") pursuant to which, after an initial public offering of
the Company's common stock, NWIP has certain rights and obligations, under the
circumstances specified therein and subject to the terms and conditions thereof,
to purchase, or to fund the redemption by The Company of, all of the outstanding
capital stock of The Company not held by the Nextel Shareholders;
Whereas, The Company has certain obligations under the Shareholders'
Agreement and the Restated Certificate to facilitate NWIP's exercise and
performance of its rights and obligations thereunder;
Now, therefore, in consideration of the mutual promises herein set forth,
the parties hereby agree as follows:
1. Agreement.
(a) NWIP acknowledges that it has reviewed the Restated Certificate
and that it will timely perform its obligations thereunder, including, subject
to the terms and conditions thereof, the obligation in certain circumstances to
purchase, or fund the redemption by the Company of, all of the outstanding
capital stock of the Company not held by the Nextel Shareholders. The Company
acknowledges that NWIP has certain rights set forth in the Restated Certificate,
including the right to exercise the NWIP Call Right (as defined therein).
(b) Each of NWIP and the Company agrees to be bound by the
provisions of the Restated Certificate and to take such actions as are
reasonably necessary to facilitate and consummate the transactions and
procedures contemplated thereby.
2. Transfers. NWIP agrees that it will not assign its rights under
Article V of the Restated Charter unless the assignee shall have agreed in
writing to be bound by the terms of this Agreement; provided, that NWIP will not
assign its rights under Article V of the Restated Certificate
other than to a wholly owned Subsidiary (as defined therein) of Nextel
Communications, Inc., ("Nextel") without the prior written consent of the
Company; provided, further, that NWIP will remain primarily liable for its
obligations hereunder notwithstanding any such assignment.
3. Miscellaneous.
(a) Amendments. This Agreement may be amended only by a writing
executed by the parties.
(b) Entire Agreement. This Agreement and the other Transaction
Documents (as defined in the Shareholders' Agreement) set forth the entire
understanding of the parties hereto and thereto with respect to the subject
matter hereof and thereof, and supersede all prior contracts, agreements,
arrangements, communications, discussions, representations and warranties,
whether oral or written, between the parties, including but not limited to the
Memorandum of Agreement, dated as of May 1, 1998, among Wireless Investment
Partners, L.L.C., NWIP and Nextel, as amended.
(c) Notices. Any notice, request or other communication required or
permitted hereunder must be in writing and is given: (a) when received if
personally delivered; (b) 12 hours after being sent by telecopy, with confirmed
answerback; or (c) 1 business day after being sent by priority delivery by
established overnight courier, to the parties at their respective addresses set
forth below.
To NWIP: Nextel WIP Corp.
0000 Xxxx Xxxxxx Xxxxx
XxXxxx, XX 00000
Attention: General Counsel
Telecopy: (703) 394-3 896
With a copy to: Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
To the Company: Nextel Partners Operating Corp.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
With a copy to: Xxxxxxxx Xxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx
0
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
Either party by written notice to the other given in accordance with this
Section 3(c) may change the address or the persons to whom notices or copies
thereof are to be directed.
(d) Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original, and all of which
together will constitute one and the same instrument.
(e) Waiver. Except as otherwise provided in this Agreement, any
party may waive, in writing, compliance by the other parties thereto (to the
extent such compliance is for the benefit of the party giving such waiver) with
any of the terms, covenants or conditions contained in this Agreement (except as
may be imposed by law). Any waiver by any party of any violation of, breach of,
or default under, any provision of any of this Agreement, by any other party
will not be construed as, or constitute, a continuing waiver of such provision,
or waiver of any other violation of, breach or default under, any other
provision of this Agreement.
(f) Third Parties. Nothing expressed or implied in this Agreement is
intended, or may be construed, to confer upon or give any person or entity other
than the parties hereto any rights or remedies hereunder.
(g) Severability. If any provision of this Agreement or the
application of such provision is invalid, illegal or unenforceable in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision of this Agreement or invalidate or render unenforceable such
provision in any other jurisdiction. The parties will, to the extent lawful and
practicable, use their best reasonable efforts to enter into arrangements to
reinstate the intended benefits of any provision held invalid, illegal or
unenforceable.
(h) Choice of Law. This Agreement shall be governed by New York law,
without regard to choice of law rules that would result in the application of
another state's law.
(i) Construction. Words used in this Agreement regardless of the
number or gender specifically used, will be deemed and construed to include any
other number, singular or plural, and any other gender, masculine, feminine or
neuter, as the context requires. The parties hereto have participated equally in
the drafting of this Agreement and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of authorship of any provision of
this Agreement. The headings in this Agreement are solely for convenience of
reference and are not to be given any effect in the construction or
interpretation of this Agreement.
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In Witness Whereof, the parties have executed this Agreement as of the
date first above written.
NEXTEL WIP CORP.
/s/ Xxxx Xxxxxxx
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Name: XXXX XXXXXXX
Title: VICE PRESIDENT
NEXTEL PARTNERS, INC.
/s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer
and Treasurer
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