EXHIBIT 10.42
EXECUTION COPY
PURCHASE AND SALE AGREEMENT
by and between
NEXTEL SPECTRUM ACQUISITION CORP.
and
CLEARWIRE SPECTRUM HOLDINGS LLC
Dated October 24, 2005
[* * * Portions of this Exhibit have been omitted and filed separately with the
Securities and Exchange Commission as part of an application for confidential
treatment pursuant to the Securities Act of 1933, as amended]
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS........................................................ 1
Section 1.1 Definitions................................................. 1
Section 1.2 Other Terms................................................. 4
ARTICLE 2 PURCHASE AND SALE OF ASSETS........................................ 5
Section 2.1 Purchase and Sale........................................... 5
Section 2.2 Excluded Assets............................................. 5
Section 2.3 Liabilities................................................. 6
ARTICLE 3 PURCHASE PRICE; CLOSING; ALLOCATIONS............................... 6
Section 3.1 Purchase Price.............................................. 6
Section 3.2 Closing and Supplemental Closings........................... 6
Section 3.3 Closing Deliveries by Seller................................ 7
Section 3.4 Closing Deliveries by Buyer................................. 8
Section 3.5 Allocation of Expenses; Closing Statement................... 8
Section 3.6 Allocation of Purchase Price................................ 10
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SELLER........................... 10
Section 4.1 Authorization............................................... 10
Section 4.2 Enforceability.............................................. 10
Section 4.3 No Conflicts or Consents.................................... 10
Section 4.4 FCC Licenses................................................ 11
Section 4.5 Spectrum Leases............................................. 12
Section 4.6 Litigation.................................................. 12
Section 4.7 Broker...................................................... 13
Section 4.8 Taxes....................................................... 13
Section 4.9 Seller Adjacent Interleaved Channels........................ 13
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF BUYER............................ 13
Section 5.1 Authorization............................................... 13
Section 5.2 Enforceability.............................................. 13
Section 5.3 No Conflicts or Consents.................................... 13
Section 5.4 Litigation.................................................. 13
Section 5.5 Broker...................................................... 14
Section 5.6 Funds Available............................................. 14
ARTICLE 6 COVENANTS AND OTHER AGREEMENTS..................................... 14
Section 6.1 Consummation of Transactions................................ 14
Section 6.2 Certain Notices............................................. 14
Section 6.3 Confidentiality............................................. 15
Section 6.4 Further Assurances.......................................... 16
Section 6.5 [***] Repurchase Right...................................... 16
Section 6.6 FCC qualifications.......................................... 18
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TABLE OF CONTENTS
(continued)
PAGE
Section 6.7 Consents.................................................... 18
Section 6.8 Interference Consents....................................... 18
Section 6.9 Certain Affirmative Covenants............................... 19
Section 6.10 Certain Negative Covenants................................. 19
Section 6.11 Access..................................................... 19
Section 6.12 Publicity.................................................. 19
Section 6.13 Transfer Taxes; FCC Filing Fees............................ 19
Section 6.14 Non-Solicitation of Lessors................................ 19
ARTICLE 7 CONDITIONS TO CLOSING.............................................. 20
Section 7.1 Conditions to the Obligations of Both Parties............... 20
Section 7.2 Conditions to the Obligations of Seller..................... 20
Section 7.3 Conditions to the Obligations of Buyer...................... 21
ARTICLE 8 TERMINATION....................................................... 22
Section 8.1 Termination................................................. 22
Section 8.2 Effect of Termination....................................... 23
ARTICLE 9 SURVIVAL AND REMEDIES.............................................. 23
Section 9.1 Survival.................................................... 23
Section 9.2 Seller Indemnification...................................... 23
Section 9.3 Buyer Indemnification....................................... 24
Section 9.4 Third Party Claims.......................................... 24
Section 9.5 Other Claims................................................ 26
Section 9.6 Calculation of Losses; Limitation of Liability; Remedies.... 26
ARTICLE 10 MISCELLANEOUS..................................................... 27
Section 10.1 Entire Agreement........................................... 27
Section 10.2 No Other Representations or Warranties..................... 27
Section 10.3 Amendments and Waivers..................................... 27
Section 10.4 Assignment................................................. 27
Section 10.5 Notices.................................................... 27
Section 10.6 Governing Law.............................................. 28
Section 10.7 Attorney's Fees............................................ 29
Section 10.8 Expenses................................................... 29
Section 10.9 Invalidity................................................. 29
Section 10.10 Force Majeure............................................. 29
Section 10.11 Counterparts.............................................. 29
Section 10.12 Headings.................................................. 29
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SCHEDULES AND EXHIBITS
Schedule 1 FCC Licenses
Schedule 2 Spectrum Leases
Schedule 3 Purchase Price Allocation
Schedule 4 [***] Option Channels
Schedule 5 Seller Adjacent Channels
Exhibit A Form of Instrument of Assignment for Licenses
Exhibit B Form of Assignment and Assumption for Spectrum Leases
Exhibit C Form of Xxxx of Sale
Exhibit D Form of Officer's Certificate
Exhibit E Form of Secretary's Certificate
Exhibit F Form of Consent to Assignment
Exhibit G Form of Letter of No Objection
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT, dated October 24, 2005 (the "Effective
Date"), is entered into by and between Nextel Spectrum Acquisition Corp., a
Delaware corporation ("Seller") and Clearwire Spectrum Holdings LLC, a Nevada
limited liability company ("Buyer"). Seller and Buyer may be referred to herein
collectively as the "Parties" or individually as a "Party."
RECITALS
A. Seller holds the Federal Communications Commission ("FCC") licenses for
the operation of the Broadband Radio Service (formerly known as MMDS) ("BRS")
channels identified on Schedule 1 (the "FCC Licenses"), and the lease agreements
pursuant to which Seller leases the excess capacity on the BRS and Educational
Broadband Service (formerly known as Instructional Television Fixed Service)
("EBS") channels identified on Schedule 2 (the "Spectrum Leases").
B. Seller desires to sell and assign to Buyer, and Buyer desires to
purchase and assume, the FCC Licenses and Spectrum Leases, all on the terms and
subject to the conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants, conditions and agreements hereinafter
set forth, the Parties agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the following terms
shall have the meanings set forth or referenced below (applicable to both the
singular and plural forms of the terms defined):
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly, alone or through one or more intermediaries, controls,
is controlled by or is under common control with that Person. For purposes of
this definition, "control" (including the terms "controlling" and "controlled")
means the power to direct or cause the direction of the management and policies
of a Person, directly or indirectly, whether through the ownership of securities
or partnership or other ownership interests, or by contract or otherwise.
"Agreement" means this Purchase and Sale Agreement and all Exhibits and
Schedules hereto, as amended, supplemented or otherwise modified from time to
time in accordance with the terms hereof.
"Allocation Schedule" is defined in Section 3.6.
"Assets" is defined in Section 2.1.
"Assumed Liabilities" is defined in Section 2.3.
"Available [***] Option Channels" is defined in Section 6.5.
"BRS" is defined in Recital A.
"Business Day" means any day, other than a Saturday or Sunday, on which
commercial banks and foreign exchange markets are open for business in New York,
New York.
"Business Partner" is defined in Section 6.3(b).
"Business Partner NDA" is defined in Section 6.3(b).
"Buyer" is defined in the preamble.
"Claim" means any claim asserted by any Person (including any Party)
against a Party in respect of which payment may be sought from the other Party
under Section 9.2 or Section 9.3 hereof.
"Closing" is defined in Section 3.2(a).
"Closing Conditions" is defined in Section 3.2(a).
"Closing Date" is defined in Section 3.2(a).
"Code" means the Internal Revenue Code of 1986, as amended, and the
corresponding provisions of any future internal revenue law.
"Consents" means all consents and approvals of Governmental Authorities or
other Person (other than a Party) necessary to authorize, approve or permit the
Parties hereto to consummate the Transactions, including, without limitation,
the consents (if any) of the lessors under the Spectrum Leases, if required to
assign such Leases in accordance with the terms of this Agreement.
"Damages" means any and all losses, claims, demands, liabilities,
obligations, actions, suits, orders, statutory or regulatory compliance
requirements, or proceedings asserted by any Person, and all damages, costs,
expenses, assessments, judgments, recoveries and deficiencies, including
interest, penalties, investigatory expenses, consultants' fees, and reasonable
attorneys' fees and costs, of every kind and description, contingent or
otherwise.
"Damages Dispute" is defined in Section 9.4(c).
"EBS" is defined in Recital A.
"Effective Date" is defined in the preamble.
"Excluded Assets" is defined in Section 2.2.
"Excluded Liabilities" is defined in Section 2.3.
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"FCC" is defined in Recital A.
"FCC Licenses" is defined in Recital A.
"FCC Rules" means Title 47 of the Code of Federal Regulations, as amended
at any time and from time to time, and FCC published decisions issued pursuant
to such regulations.
"Final Order" means an action by the FCC (i) which action has not been
reversed, stayed enjoined, set aside, annulled or suspended, (ii) in relation to
which no request for stay, motion or petition for reconsideration or rehearing,
application or request for review, or notice of appeal or other administrative
or judicial petition for review (collectively, an "Appeal") is pending, and
(iii) as to which the prescribed time for filing an Appeal, and for the entry of
orders staying, reconsidering, or reviewing on the FCC's or such other
regulatory authority's own motion has expired.
"Governmental Authority" means a Federal, state or local court,
legislature, governmental agency (including the United States Department of
Justice), commission or regulatory or administrative authority or
instrumentality.
"Law" means applicable common law and any statute, ordinance, code or
other law, rule, permit, permit condition, regulation, order, decree, technical
or other standard, requirement or procedure enacted, adopted, promulgated,
applied or followed by any Governmental Authority.
"Lien" means any mortgage, lien, pledge, charge, security interest, right
of first refusal or right of others therein, restrictions, options, claims or
encumbrance of any nature whatsoever, except for liens for taxes not yet due and
payable.
"May 18, 2004 NDA" is defined in Section 6.3.
"Parties" or "Party" is defined in the preamble.
"Person" means any general partnership, limited partnership, limited
liability company, corporation, joint venture, trust, business trust,
Governmental Authority, cooperative, association, other entity, or individual,
and the heirs, executors, administrators, legal representatives, successors, and
assigns of such person (by merger or otherwise) as the context may require.
"Property Taxes" means ad valorem or real or personal property taxes,
assessments, and similar charges payable to a Governmental Authority with
respect to the Assets, including any penalties, additions, fines or interest
thereon and any liability to another Person for such charges by reason of
contract or as a successor or transferee.
"Prorated Expense Items" is defined in Section 3.5(a).
"Purchase Price" is defined in Section 3.1.
"Remaining Assets" is defined in Section 3.2(b).
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"Selected [***] Option Channels" is defined in Section 6.5.
"Seller" is defined in the preamble.
"Seller Adjacent Channels" is defined in Section 6.8(a).
"Spectrum Leases" is defined in Recital A.
"Sprint Nextel" is defined in Section 6.5(a).
"Supplemental Closing" is defined in Section 3.2(b).
"Supplemental Closing Date" is defined in Section 3.2(c).
"Tax" or "Taxes" means any taxes, assessment, duties, fees, levies,
imposts, deductions, or withholdings, including income, gross receipts, ad
valorem, value added, excise, real or personal property, asset, sales, use,
license, payroll, transaction, capital, net worth and franchise taxes, estimated
taxes, withholding, employment, social security, workers compensation, utility,
severance, production, unemployment compensation, occupation, premium, windfall
profits, transfer and gains taxes, or other governmental charges of any nature
whatsoever, imposed by any Governmental Authority, and any liabilities with
respect thereto, including any penalties, additions to tax, fines or interest
thereon and includes any liability for Taxes of another Person by contract, as a
transferee or successor, or by reason of Treasury Regulations Section 1.1502-6.
["***"] is defined in Section 6.5(a).
["***] Availability Notice" is defined in Section 6.5.
["***] Option" is defined in Section 6.5.
["***] Option Channels" is defined in Section 6.5.
["***] Option Notice" is defined in Section 6.5.
["***] Plan" is defined in Section 6.5(a).
["***] Purchase Price" is defined in Section 6.5.
"Transactions" means the transactions contemplated by this Agreement.
"Transition" means the transition of the 2.5-2.7 GHz band channels to a
new spectrum plan pursuant to Sections 27.1230 through 27.1235 of the FCC Rules.
"Transfer Taxes" means sales, use, stamp, recording, transaction-related
excise, or similar transfer taxes, fees and charges. For the avoidance of doubt,
Transfer Taxes do not include any Tax measured by net income, profit, or gain of
any Person.
Section 1.2 Other Terms. Other capitalized terms may be defined elsewhere
in this Agreement and, unless otherwise indicated, shall have such meaning
throughout this Agreement.
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All references to "$" and dollars shall be deemed to refer to United States
currency unless otherwise specifically provided herein. All references to "true
and complete" copies of specified documents, means true and complete copies of
such documents, together with all material notices, waivers, amendments,
modifications and supplements thereto.
ARTICLE 2
PURCHASE AND SALE OF ASSETS
Section 2.1 Purchase and Sale. On the terms and subject to the conditions
of this Agreement, at the Closing (or, as applicable, Supplemental Closing),
Seller shall sell, assign, transfer, convey and deliver to Buyer or Buyer's
designee(s), and Buyer shall purchase from Seller all of Seller's right, title
and interest as of the Closing Date (or, as applicable, Supplemental Closing
Date) in and to the following assets (collectively the "Assets") free and clear
of all Liens:
(a) The FCC Licenses;
(b) The Spectrum Leases;
(c) Subject to Section 3.5, all credits, prepaid expenses, advance
payments, security deposits and other prepaid items that relate to any of
the Assets set forth in subsections (a), (b), (d) or (e) of this Section
2.1 as of the Closing (or, as applicable, Supplemental Closing);
(d) All rights, claims, causes of action, rights to payment or to
enforce payment and credits to the extent relating to any of the Assets
set forth in subsections (a), (b), (c) or (e) of this Section 2.1 or
anything that would have been a part of such Assets, but for any
destruction of such assets, including any such items arising under
insurance policies (or, if not assignable or transferable, all of the
Seller and its Affiliate's rights under such insurance policies with
respect to such assets) and all guarantees, warranties, indemnities and
similar rights in favor of Seller or its Affiliates in respect of the
Assets, but not to the extent relating to any Excluded Assets or Excluded
Liabilities; and
(e) Copies of the FCC Licenses, Spectrum Leases, and other records,
files and documents of Seller and in Seller's possession relating to any
of the Assets set forth in subsections (a), (b), (c) or (d) of this
Section 2.1 , including all material correspondence with the lessors under
the Spectrum Leases (in all cases, in any form or medium).
Section 2.2 Excluded Assets. The Assets shall not include the Excluded
Assets. As used herein, the term "Excluded Assets" means all the properties,
assets, goodwill and rights of Seller or its Affiliates of whatever kind and
nature, real or personal, tangible or intangible, that are owned, leased,
licensed or otherwise held or controlled by Seller or its Affiliates on the
Closing Date (or, as applicable, Supplemental Closing Date) that are not
specifically identified in Section 2.1. For the avoidance of doubt, the
following shall be Excluded Assets: (a) all cash or cash equivalents of Seller
or its Affiliates; (b) all rights of Seller under this Agreement and the other
agreements and instruments executed and delivered in connection with the
Transactions; and (c) the name "Sprint Nextel" or any variation thereof, and any
trademarks, trade names, logos or symbols related thereto.
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Section 2.3 Liabilities. On the terms and subject to the conditions of
this Agreement, Buyer shall assume, effective as of the Closing (or, as
applicable, Supplemental Closing), all liabilities of Seller or its Affiliates
under the Assets that arise, are incurred, or are required to be performed from
and after the Closing (or, as applicable, Supplemental Closing) (the "Assumed
Liabilities"), and from and after the Closing (or, as applicable, Supplemental
Closing) with respect to the Assets being sold as of said Closing or
Supplemental Closing, Buyer shall pay, perform and discharge when due the
Assumed Liabilities. Except for the Assumed Liabilities, Buyer shall not assume,
or be obligated or liable for, any liabilities of Seller, or any of its
Affiliates, predecessors, assignors, or transferors, including without
limitation any liabilities under the Assets incurred, accrued and/or to be
performed under the terms thereof on or before the Closing Date (or, as
applicable, Supplemental Closing Date) (the "Excluded Liabilities"), whether in
connection with the Transactions, or otherwise, all of which shall be retained
and paid, performed and discharged when due by Seller or one of Seller's
Affiliates.
ARTICLE 3
PURCHASE PRICE; CLOSING; ALLOCATIONS
Section 3.1 Purchase Price. Subject to Sections 3.2 and 3.5, the purchase
price for the Assets (the "Purchase Price ") shall be the aggregate amount
of [***]
Section 3.2 Closing and Supplemental Closings.
(a) Closing. The closing (the "Closing") shall occur within five (5)
Business Days (or at such other time as the Parties may mutually agree or
as required under FCC Rules) following the date that the applicable
conditions to closing set forth under Article 8 (the "Closing Conditions")
have been satisfied or waived by the appropriate Party with respect to at
least [***] of the FCC Licenses and Spectrum Leases, as determined, in
each case, by reference to the values assigned to such assets in Schedule
3. The Parties shall promptly notify each other in writing of the
satisfaction or waiver of the Closing Conditions required for the Closing
as described in this Section 3.2(a). The date on which the Closing occurs
is referred to herein as the "Closing Date."
(b) Effect of Partial Closing. If, at the time of the Closing, the
Closing Conditions have not been satisfied with respect to all of the
Assets, then: (i) subject to Section 3.2(d) the Parties shall consummate
the Closing with respect to the Assets for which the Closing Conditions
have been satisfied, (ii) the Parties shall continue to seek to satisfy
the Closing Conditions with respect to all remaining Assets (the
"Remaining Assets"); (iii) for purposes of the Closing, the Purchase Price
shall be reduced by the amount allocated to all Remaining Assets on
Schedule 3; and (iv) the Parties shall effect one or more supplemental
closings (each a "Supplemental Closing") for the Remaining Assets in
accordance with Section 3.2(c).
(c) Supplemental Closings. As and when the Closing Conditions are
satisfied or waived by the appropriate Party after the Closing with
respect to any Remaining Asset, then, on the last Business Day of each
calendar quarter (or such other date as may be mutually agreed by the
Parties): (i) Seller shall sell, assign, transfer, convey and deliver
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to Buyer such Remaining Assets for which the Closing Conditions have been
satisfied or waived; and (ii) Buyer shall pay to Seller the amounts set
forth in Schedule 3 with respect to the Remaining Assets conveyed to Buyer
at such Supplemental Closing. The date on which any Supplemental Closing
occurs is referred to herein as a "Supplemental Closing Date."
(d) Related Assets. Notwithstanding anything to the contrary in this
Agreement, if any Asset (other than any FCC License or Spectrum Lease) is
used in relation to any Remaining Asset that is not assigned to Buyer at
the Closing, then such Asset shall not be transferred at the Closing and
shall instead be assigned, transferred and delivered to Buyer together
with the related FCC License or Spectrum Lease that is a Remaining Asset
at the applicable Supplemental Closing.
(e) Final Supplemental Closing Date. Notwithstanding the foregoing
or anything to the contrary in this Agreement, no Party shall have any
obligation to satisfy any Closing Conditions or effect any Supplemental
Closing with respect to any Remaining Asset after September 27, 2007
Section 3.3 Closing Deliveries by Seller. At the Closing and, as
applicable, at each Supplemental Closing Seller shall deliver to Buyer:
(a) A duly executed Instrument of Assignment for FCC Licenses
substantially in the form attached hereto as Exhibit A for the FCC
Licenses to be assigned at such Closing or Supplemental Closing, as
applicable;
(b) A duly executed Assignment and Assumption for Spectrum Leases,
substantially in the form attached hereto as Exhibit B for the Spectrum
Leases to be assigned at such Closing or Supplemental Closing, as
applicable;
(c) A duly executed Xxxx of Sale substantially in the form attached
hereto as Exhibit C for the Assets (other than FCC Licenses and Spectrum
Leases) to be transferred at such Closing or Supplemental Closing, as
applicable;
(d) The Officer's Certificate required to be delivered pursuant to
Sections 7.3(a) and (b) substantially in the form attached hereto as
Exhibit D;
(e) A Secretary's Certificate substantially in the form attached
hereto as Exhibit E;
(f) The Consents of the lessors under the Spectrum Leases that will
be assigned to Buyer at the Closing (or, as applicable, the Supplemental
Closing) and are required to effectuate such assignment under the terms of
such Spectrum Leases, which Consents shall be substantially in the form
attached hereto as Exhibit F; and
(g) Such other documents and instruments of transfer, in form and
substance reasonably acceptable to the Parties and their counsel, as may
be necessary to effect the Transactions.
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Section 3.4 Closing Deliveries by Buyer. At the Closing and, as
applicable, at each Supplemental Closing Buyer shall deliver to Seller:
(a) The Purchase Price, as adjusted in accordance with Sections 3.2
and 3.5 (or, in the case of a Supplemental Closing, the payment required
by Section 3.2(c) as adjusted in accordance with Section 3.5), payable in
immediately available funds via wire transfer to an account designated by
Seller;
(b) A duly executed Instrument of Assignment for FCC Licenses
substantially in the form attached hereto as Exhibit A for the FCC
Licenses to be assigned at such Closing or Supplemental Closing, as
applicable;
(c) A duly executed Assignment and Assumption for Spectrum Leases,
substantially in the form attached hereto as Exhibit B for the Spectrum
Leases to be assigned at such Closing or Supplemental Closing, as
applicable;
(d) The Officer's Certificate required to be delivered pursuant to
Sections 7.2(a) and (b), substantially in the form attached hereto as
Exhibit D;
(e) A Secretary's Certificate substantially in the form attached
hereto as Exhibit E; and
(f) Such other documents and instruments of transfer, in form and
substance reasonably acceptable to the Parties and their counsel, as may
be necessary to effect the Transactions.
Section 3.5 Allocation of Expenses; Closing Statement.
(a) Subject to Section 3.5(c), on the Closing Date (or, as
applicable, Supplement Closing Date), those items of expenses and accounts
payable specifically referred to in Section 3.5(b) in relation to the
Assumed Liabilities and are paid or payable before and after the Closing
Date (or, as applicable, Supplement Closing Date) on an annual, quarterly,
monthly or other regular periodic basis ("Prorated Expense Items") shall
be prorated as of the Closing Date (or, as applicable, Supplement Closing
Date) with respect to the particular Assets being sold as of the Closing
Date (or as applicable, Supplemental Closing Date) and apportioned, such
that (i) Buyer will receive the economic benefit or burden, as applicable,
of all such items after the Closing Date (or, as applicable, Supplement
Closing Date), and (ii) Seller shall receive the economic benefit or
burden, as applicable, of all such items for the period prior to, and
including, the Closing Date (or, as applicable, Supplement Closing Date).
After the Closing Date (or, as applicable, Supplement Closing Date), (x)
if Buyer should receive any bills or accounts or any reimbursement in
relation to Prorated Expense Items that are attributable in whole to the
period prior to, and including, the Closing Date (or, as applicable,
Supplement Closing Date), then Buyer shall promptly forward the same to
Seller (for payment, in the case of any such bills or accounts), (y) if
Seller should receive any bills or accounts or any reimbursement in
relation to the Prorated Expense Items that are attributable in whole to
the period after the Closing Date (or, as applicable, Supplement Closing
Date), then Seller shall promptly forward the same to Buyer (for payment,
in the
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case of any such bills or accounts) and (z) if any Party should receive
any bills or accounts or any reimbursements in relation to the Prorated
Expense Items that are attributable in part to the period prior to, and
including, the Closing Date (or, as applicable, Supplement Closing Date),
and in part to the period after the Closing Date, the amount thereof shall
be apportioned between Seller, on the one hand, and Buyer, on the other
hand, as of the Closing Date (or, as applicable, Supplement Closing Date),
based on the number of days in such period falling prior to and including
the Closing Date (or, as applicable, Supplement Closing Date), on the one
hand, and after the Closing Date (or, as applicable, Supplement Closing
Date), on the other hand. In the case of bills or accounts referred to in
clause (z), the party receiving the same shall be required to pay only
such portion of such xxxx or account for which it is responsible in
accordance with this Section 3.5(a).
(b) The following expense items shall be prorated in the manner
contemplated by Section 3.5(a): (i) regular periodic rent or lease
payments (including prepaid rent and rent payable in arrears) payable
under the Spectrum Leases; (ii) annual FCC regulatory fees in relation to
the FCC Licenses; and (iii) Property Taxes (if any).
(c) Not less than ten (10) Business Days prior to the Closing Date
(or, as applicable, Supplement Closing Date), Seller and Buyer will
jointly prepare a preliminary closing statement containing their good
faith calculation of the prorations provided for in Section 3.5(a). If
final bills or accounts in relation to any Prorated Expense Items or rent
receivable referred to in Section 3.5(a) are not available or have not
been issued prior to that date for any Prorated Expense Item, or rent
receivable that is required to be prorated as contemplated in Section
3.5(a), then Seller shall estimate the amount of each such item in good
faith, and such estimate shall be reflected in the preliminary closing
statement. The amount payable by Buyer at the Closing (or, as applicable,
Supplemental Closing) shall be increased or decreased to reflect the net
amount owing between the Parties as shown on such preliminary closing
statement, using such estimates where necessary. Final adjustment between
the Parties as to any estimated item used in the preparation of the
preliminary closing statements shall be made as soon as reasonably
practicable after the Closing (or, as applicable, Supplement Closing)
after such item becomes final. Payments in connection with such final
adjustment or otherwise necessary to reconcile amounts between the parties
in accordance with Section 3.5(a) will be due within thirty (30) days of
written notice from the Party entitled to payment.
Section 3.6 Allocation of Purchase Price. Within thirty (30) days after
the Closing Date or Supplemental Closing Date (as applicable), Buyer shall
deliver to Seller a schedule allocating the Purchase Price as adjusted in
accordance with Sections 3.2 and 3.5 (or, in the case of a Supplemental Closing,
the payment required by Section 3.2(c) as adjusted in accordance with Section
3.5), and reflecting the Assumed Liabilities, among the Assets acquired at the
Closing or Supplemental Closing (as applicable) in accordance with the
principles of Section 1060 of the Code and the regulations promulgated
thereunder (each an "Allocation Schedule"). Seller shall have fifteen (15) days
from its receipt of the Allocation Schedule to notify Buyer, in writing, that
Seller disputes one or more items reflected on the Allocation Schedule, which
notice shall include a detailed explanation of the basis for the dispute. If
Seller does not provide such notice of objection, Seller shall be deemed to
accept the Allocation Schedule as submitted by
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Buyer. If Seller does provide such notice of objection, the Parties shall
negotiate in good faith to resolve such dispute. If the Parties fail to resolve
all such disputes within thirty (30) days following Buyer's receipt of such
notice of objection, the Parties shall engage a nationally-recognized,
independent accounting firm (whose fees shall be shared equally by the two
Parties) with respect to the disputed items on the Allocation Schedule. The
determination of such independent accounting firm on the disputed items shall be
final and binding on the Parties (and any of their Affiliates). The Parties
shall prepare and file all applicable tax forms and returns, including if
necessary Internal Revenue Service Form 8594, consistent with the finalized
Allocation Schedules. Each Party shall timely and properly prepare, execute,
file and deliver all such documents, forms and other information as the other
Party may reasonably request to prepare or evaluate the Allocation Schedules.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
Section 4.1 Authorization. Seller is lawfully existing and in good
standing under the laws of the State of Delaware, and has all requisite power
and authority to enter into this Agreement and to perform the obligations to be
performed by it under this Agreement. The execution and delivery of this
Agreement and each other agreement, document, instrument or certificate
contemplated by this Agreement, and the performance by Seller of its obligations
hereunder, have been duly authorized by all necessary action on the part of
Seller.
Section 4.2 Enforceability. This Agreement and each other agreement,
document or instrument or certificate contemplated by this Agreement has been
duly executed and delivered by Seller and is a legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar Laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
Section 4.3 No Conflicts or Consents. Neither the execution, delivery and
performance by Seller of this Agreement, nor the consummation of the
Transactions by Seller, will (i) constitute, with or without the giving of
notice or passage of time or both, a breach, violation or default by Seller or
any of its Affiliates, create a Lien, or give rise to any right of termination,
modification, cancellation, prepayment or acceleration with respect to the
Assets, under (x) any Law or FCC License (subject to receipt of Consent of the
FCC) or (y) any note, bond, mortgage, indenture, lease, agreement or other
instrument, in each case which is applicable to any of the Assets; (ii) require
any Consent, other than the Consent of the FCC and the applicable lessors under
the Spectrum Leases as set forth on Schedule 2; or (iii) violate any Law,
judgment, order or decree by which Seller is bound, except, in each case, for
any conflicts, Consents or violations that, individually or in the aggregate,
will not have a material adverse effect on any of the Assets or Seller's ability
to consummate the transactions.
Section 4.4 FCC Licenses.
Page 10
(a) Schedule 1 sets forth for each FCC License the true and correct
(i) name of the licensee; (ii) FCC call sign, (iii) authorized channels,
(iv) expiration date, and (v) market where the facilities are authorized.
True and complete copies of the FCC Licenses have been delivered to Buyer.
To the knowledge of Seller, there is no condition outside of the ordinary
course imposed on any of the FCC Licenses by the FCC except those that are
either set forth on the face of the FCC Licenses, as issued by the FCC, or
are contained in applicable FCC Rules. The FCC Licenses are free and clear
of all Liens and are unimpaired by any acts or omissions of Seller, its
Affiliates and their respective officers, directors, agents, assignees and
licensees. The FCC Licenses have been granted to Seller by Final Order and
are in full force and effect.
(b) There is not pending or, to the knowledge of Seller, threatened
against Seller with respect to the FCC Licenses any application, action,
petition, objection or other pleading, or any proceeding with the FCC or
any other Governmental Authority, which (i) questions or contests the
validity of, or seeks the revocation, forfeiture, non-renewal or
suspension of, any of the FCC Licenses, (ii) seeks the imposition of any
modification or amendment with respect to any of the FCC Licenses, (iii)
would adversely affect the ability of Seller to consummate the
Transactions or (iv) seeks the payment of a fine, sanction, penalty,
damages or contribution in connection with the use of any of the FCC
Licenses. To the knowledge of Seller, there are no facts or circumstances
existing that would give rise to any such application, action, petition,
objection or other pleading, or proceeding with the FCC or any other
Governmental Authority. There is no unsatisfied adverse FCC order or
ruling outstanding against Seller with respect to any of the FCC Licenses.
(c) Seller has not agreed to accept or allow any electromagnetic
interference from any other FCC licensees, permittees or applicants with
respect to any of the FCC Licenses, and no such licensees, permittees or
applicants have agreed to accept electromagnetic interference from Seller
or with respect to its facilities.
(d) Seller is in compliance with all applicable Laws except for any
non- compliance that, individually or in the aggregate, will not have a
material adverse effect on the FCC Licenses, or on Seller's ability to
consummate the Transactions. Since acquisition by Seller of the FCC
Licenses, Seller has complied in all material respects with FCC Laws
applicable to the FCC Licenses, including without limitation the
Communication Act of 1934, as amended, and with all of the terms and
conditions of the FCC Licenses. All material documents required to be
filed at any time by Seller with the FCC with respect to the FCC Licenses,
as applicable, have been timely filed or the time period for such filing
has not lapsed. All such documents filed since the date that the FCC
Licenses were acquired by Seller are correct in all material respects. All
amounts owed to the FCC in connection with the FCC Licenses since the date
that the FCC Licenses were acquired by Seller have been timely paid.
(e) Since the date that the FCC Licenses were assumed by Seller, the
facilities subject to the FCC Licenses for which certification or
modification of completion of construction has been filed with the FCC are
operating and have been operating, in material compliance with the FCC
Licenses and FCC Rules.
Page 11
Section 4.5 Spectrum Leases. Schedule 2 sets forth the true and correct:
(i) expiration date for each Spectrum Lease, (ii) name of the lessor or other
counterpart for each Spectrum Lease, (iii) FCC call sign covered each Spectrum
Lease; (iv) authorized channels and market for each Spectrum Lease, (v) the
expiration date of the FCC license covered by each Spectrum Lease, and (vi) the
monthly, quarterly or annual rent, as applicable, payable, as of the Effective
Date of this Agreement, under each Spectrum Lease. True and complete copies of
all Spectrum Leases have been delivered or made available to Buyer. Each of the
Spectrum Leases is in full force and effect and enforceable by Seller in
accordance with its terms. Seller has valid and marketable leasehold interest in
each of the Spectrum Leases, free and clear of all Liens. Seller has not
assigned, pledged, transferred, or otherwise disposed of or granted any Lien on
its rights, titles and interests under any of the Spectrum Leases to any other
Person, nor, to the knowledge of Seller, has any other party to the Spectrum
Leases so assigned, pledged, transferred, granted any Lien on, or otherwise
disposed of any of its rights, title and interests thereunder. Neither Seller
nor, to the knowledge of Seller, any other party to any of the Spectrum Leases
is in material breach or material default thereunder. To the knowledge of
Seller, no condition exists or event has occurred, since entering into or
assuming the Spectrum Leases, as applicable, and is continuing as of the
Effective Date of this Agreement which, with or without the lapse of time or the
giving of notice, or both, would constitute a material default by Seller under
any Spectrum Leases or give rise to any Lien or right of termination,
modification, cancellation, prepayment, suspension, limitation, revocation or
acceleration against Seller under any such Spectrum Leases. Seller has not
received any notice of termination, or intent to terminate, with respect to any
Spectrum Leases.
Section 4.6 Litigation. There is no legal proceeding now in progress or
pending or, to the knowledge of the Seller, threatened against Seller with
respect to any of the Assets, nor to the knowledge of Seller does there exist
any basis therefor. Seller is not subject to any order, writ, injunction or
decree of any court or any federal, state, municipal or other domestic or
foreign Governmental Authority which would affect the Assets, any rights of
Seller in and to the Assets or Seller's ability to consummate the Transactions.
Section 4.7 Broker. Neither Seller nor any of its Affiliates has employed
any broker or finder or incurred any liability for any brokerage or finding fees
or commissions in connection with the Transactions.
Section 4.8 Taxes, (i) None of the Assets are subject to any material
Liens for Taxes; (ii) no material claims have been asserted in writing for any
Taxes in respect of any Seller Asset that have not been paid in full; (iii) none
of the Assets secure any indebtedness, the interest on which is tax-exempt under
Section 103 (a) of the Code; and (iv) none of the Assets is a "tax- exempt use
property" within the meaning of Section 168(h) of the Code.
Section 4.9 Seller Adjacent Interleaved Channels. Schedule 5 sets forth a
true and complete list of the channels owned or leased by Seller or its
Affiliates as of the Effective Date that are adjacent to and interleaved with
any of the channels under the FCC Licenses or Spectrum Leases.
Page 12
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
Section 5.1 Authorization. Buyer is lawfully existing and in good standing
under the Laws of the State of Nevada, and has all requisite power and authority
to enter into this Agreement and to perform the obligations to be performed by
it under this Agreement. The execution and delivery of this Agreement and each
other agreement, document, instrument or certificate contemplated by this
Agreement, and the performance by Buyer of its obligations hereunder, have been
duly authorized by all necessary action on the part of Buyer.
Section 5.2 Enforceability. This Agreement and each other agreement,
document or instrument or certificate contemplated by this Agreement to which
they are a party has been duly executed and delivered by Buyer, and is a legal,
valid and binding obligation of Buyer, enforceable against Buyer, as applicable
in accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar Laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
Section 5.3 No Conflicts or Consents. Neither the execution, delivery and
performance by Buyer of this Agreement, nor the consummation of the Transactions
by Buyer, will (i) require any Consent, other than the Consent of the FCC; or
(ii) violate any Law, judgment, order or decree by which Buyer is bound, except,
in each case, for any conflicts, Consents or violations that, individually or in
the aggregate, will not have a material adverse effect on Buyer's ability to
consummate the transactions.
Section 5.4 Litigation. Buyer is not subject to any order, writ,
injunction or decree of any court or any federal, state, municipal or other
domestic or foreign Governmental Authority which would affect the Buyer's
ability to consummate the Transactions.
Section 5.5 Broker. Buyer nor any of its respective Affiliates has
employed any broker or finder or incurred any liability for any brokerage or
finding fees or commissions in connection with the Transactions.
Section 5.6 Funds Available. Buyer has available to it as of the date
hereof and will have available to it as of the Closing and each Supplemental
Closing immediately available funds necessary to consummate the transactions
contemplated hereby and to pay all expenses of Buyer in connection therewith.
Buyer has delivered to Seller evidence, reasonably satisfactory to Seller, that
demonstrates Buyer's ability to consummate the Transaction.
ARTICLE 6
COVENANTS AND OTHER AGREEMENTS
Section 6.1 Consummation of Transactions. From and after the Effective
Date, each Party shall use its reasonable best efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, all things necessary and
consistent with applicable Law to perform its obligations under this Agreement
and to consummate the Transactions as soon as reasonably practicable. Each Party
shall use commercially reasonable efforts to prevent or promptly remedy
Page 13
any breach of any of its representation, warranties, covenants or agreements
contained in this Agreement.
Section 6.2 Certain Notices. Each Party shall promptly notify the other
Parties in reasonable detail in writing:
(a) upon the satisfaction or waiver of the Closing Conditions
required for the Closing as described in Section 3.2(a);
(b) to the knowledge of the notifying Party, upon the commencement
of, or the impending or threatened commencement of, or upon obtaining
knowledge of any facts that would give rise to, any claim, action or
proceeding brought to enjoin the consummation of the Transactions, or
against or relating to (i) the notifying Party or its properties or
assets, which could materially adversely affect the Transactions or its
ability to perform its obligations hereunder, or (ii) their respective
Assets or their use;
(c) to the knowledge of the notifying Party, upon the occurrence of,
or the impending or threatened occurrence of, or upon obtaining knowledge
of any facts that would give rise to, any event which could cause or
constitute a material breach of any of its representations, warranties,
covenants or agreements contained in this Agreement; and
(d) upon the occurrence or existence of any event, condition,
circumstance or state of facts known to the notifying Party, which has had
or could have a material adverse effect on the Transactions or its ability
to perform its obligations hereunder, or could materially adversely affect
their respective Assets or their use.
Section 6.3 Confidentiality.
(a) May 18, 2004 NDA. This Agreement and any information or
documents provided by any Party to this Agreement to any other Party, or
developed by the Parties in the course of completing the actions
contemplated by this Agreement shall be treated as confidential and
proprietary and shall be subject to the confidentiality and nondisclosure
letter agreement dated May 18, 2004, by and between Nextel Communications,
Inc. and Clearwire Corporation and its successors and subsidiaries (as
amended, the "May 18, 2004 NDA"). Each of the Parties hereto agrees that
the Parties (on behalf of themselves and their respective successors and
subsidiaries) shall be bound by and enjoy all of the benefits of the May
18, 2004 NDA as if original parties thereto. Notwithstanding anything to
the contrary in the May 18, 2004 NDA, for purposes of this Agreement only,
the May 18, 2004 NDA shall be deemed to survive (1) with respect to all
Information (as defined in the May 18, 2004 NDA) relating to the
transactions contemplated by Section 6.5, until such transactions have
been consummated or the rights described in Section 6.5 have expired or
been terminated in accordance with this Agreement and (2) with respect to
all other Information relating to this Agreement, for a period of two
years from the date hereof.
(b) Limited Disclosure to Business Partners. Notwithstanding Section
6.3(a) or the May 18, 2004 NDA, each Party may disclose this Agreement to
its actual and prospective investors, lenders, acquirers, merger partners
or other business partners (each
Page 14
a "Business Partner") if: (1) the Business Partner reasonably needs to
know such information to pursue a business relationship that the
disclosing Party considers material consistent with such Party's business
practices (including, without limitation, for the purposes of due
diligence on the disclosing Party); and (2) prior to disclosing this
Agreement, the disclosing Party: (i) causes the Business Partner to
execute and deliver to the disclosing Party a nondisclosure agreement (the
"Business Partner NDA") that (a) requires the Business Partner to maintain
the confidentiality of the terms of this Agreement on terms at least as
restrictive as those set forth in Sections 1, 3 and 4 of the May 18, 2004
NDA and (b) explicitly designates the non-disclosing Party as an intended
third-party beneficiary with the right to enforce the Business Partner NDA
(including, without limitation, the right to seek any equitable remedy to
enjoin the improper disclosure of any confidential information); and (ii)
provides written notice to the non-disclosing Party that the disclosing
Party has disclosed this Agreement to a Business Partner (without
disclosing the identity of the Business Partner) in accordance with the
terms of this Section 6.3(b); provided, however, that (except as otherwise
provided in the May 18, 2004 NDA) under no circumstances shall any Party
disclose to any Person Schedule 3 or the allocations set forth therein.
Notwithstanding the foregoing, the Parties acknowledge that the May 18,
2004 NDA provides that nothing in such agreement "preclude[s] disclosures
necessary to comply with accounting standards and applicable securities
and other laws and regulations of the Securities and Exchange Commission
("SEC") or with the regulations of any applicable securities exchange" and
that the Parties and/or their Affiliates may be required to disclose the
financial terms of this Agreement in such Party's or its Affiliates'
consolidated financial statements or in the footnotes thereof.
Notwithstanding the foregoing, neither Party shall be required to enter
into a Business Partner NDA with a Business Partner provided that such
Party has, prior to the Effective Date and consistent with such Party's
normal business practices, entered into a non-disclosure agreement with
that Business Partner, which non-disclosure agreement will (i) at least
require the Business Partner to maintain the confidential information
received by such Party in confidence and to protect against the
unauthorized disclosure of the confidential information disclosed to such
Business Partner on terms consistent with the disclosing Party's normal
business practices and (ii) not include any provision which expressly
excludes third party beneficiaries. Such non-disclosure agreements will be
considered a Business Partner NDA for the purposes of this Section 6.3.
(c) Duty to Enforce Business Partner NDAs. If any Party discloses
any confidential information to any Business Partner in accordance with
Section 6.3(b), such disclosing Party shall ensure that all of its
Business Partners maintain the confidentiality of such information in
accordance with the terms of this Section 6.3 and the Business Partner
NDA. If any Party, in good faith and based on facts known to it,
determines that a Business Partner has, or may have, disclosed any
information in breach of any Business Partner NDA or in violation of this
Section 6.3, then such Party shall deliver written notice of such breach
to the other Party, which notice will include specific information with
respect to the breach and any information the notifying Party has with
respect to the identity of the Person making the unauthorized disclosure.
Upon receiving the such notice from the notifying Party: (1) the Parties
shall immediately cooperate to mutually identify the Business Partner, if
any, responsible for the unauthorized disclosure based on
Page 15
reasonable evidence available to the Parties; (2) the disclosing Party
shall provide to the notifying Party a true and complete copy of the
Business Partner NDA between the breaching Business Partner and the
disclosing Party immediately after the applicable Business Party is
identified, if at all, by the Parties; and (3) the disclosing Party shall
use commercially reasonable and diligent efforts to prevent further
unauthorized disclosures by the breaching Business Partner.
Section 6.4 Further Assurances. The Parties shall cooperate in good faith
and exercise their reasonable best efforts to obtain all required Consents and
to finalize and execute any and all other documents or agreements necessary to
complete the Transactions on or prior to the Closing Date (or, as applicable,
Supplemental Closing Date). Each Party shall, upon request, execute and deliver
such documents and take such actions as may reasonably be requested by the other
Party in order to effectuate the purposes of this Agreement.
Section 6.5 [***] Repurchase Right.
(a) [***] Option Subject to Section 6.5(b), Seller shall have the
option (the "[***] Option") to repurchase from Buyer (and Buyer hereby
agrees to sell) certain of the FCC Licenses and/or Spectrum Leases listed
on Schedule 4 (the "[***] Option Channels") if, within the [***] following
the Effective Date, Sprint Nextel Corporation, or its successor, assign or
Affiliate (together "Sprint Nextel"), has: (1) purchased, or irrevocably
committed to purchase, equipment in an aggregate amount equal to or
greater than [***] to implement a [***] wireless broadband system
utilizing the EBS and BRS spectrum (the [***] Plan"); and (2) begun to
implement the [***] Plan by commercially deploying such system [***]
(b) Limitation of [***] Option. Notwithstanding Section 6.5(a),
Seller shall not have the right to repurchase any of the [***] Option
Channels that: (1) Buyer or any of its successors, assigns or Affiliates
have transferred, leased or subleased (or have entered into a written
agreement or letter of intent to transfer, lease or sublease such [***]
Option Channels) to an unaffiliated third party; (2) are being used by
Buyer or any of its successors, assigns or Affiliates for services in
their respective businesses; or (3) have been identified in writing by
Buyer or any of its successors, assigns or Affiliates (whether in a
deployment plan, engineering plan or other operational document used in
such business) to be deployed for services in their respective businesses
at any time within the [***] following the date of the [***] Option
Notice.
(c) Exercise of [***] Option. To exercise the [***] Option, on or
prior to [***] following the Effective Date Sprint Nextel shall provide
written notice (the "[***] Option Notice") to Buyer of Seller's election
to repurchase some or all of the [***] Option Channels, which notice shall
(a) specify the [***] Option Channels Seller desires to repurchase and (b)
certify to Buyer that the conditions to the [***] Option set forth in
Section 6.5(a) have been satisfied and that the [***] Plan is continuing.
Within thirty (30) days after receiving the [***] Option Notice, Buyer
shall provide written notice (the "[***] Availability Notice") to Sprint
Nextel of those [***]
Page 16
Option Channels identified in the [***] Option Notice which satisfy the
conditions specified in Section 6.5(b) above and are available for
repurchase by Seller in accordance with this Section 6.5 (the "Available
[***] Option Channels"). Seller shall have thirty (30) days following the
receipt of the [***] Availability Notice to select and notify Buyer, in
writing of which Available [***] Option Channels Seller wishes to acquire
(the "Selected [***] Option Channels"). Buyer shall sell, subject to the
approval by the FCC and/or the applicable lessors under the Spectrum
Leases, the Selected [***] Option Channels to Sprint Nextel at a purchase
price (the "[***] Purchase Price") equal to [***]. The Parties will
implement the [***] Option purchase through a purchase agreement with
customary terms, and the closing of the purchase of the [***] Option
Channels shall occur as soon as practicable after the Parties have
received the required Consents from the FCC or any lessor under the
Spectrum Leases. At such closing, (i) Seller shall pay the [***] Purchase
Price to Buyer in immediately available funds via wire transfer to an
account designated by Buyer and (ii) Buyer shall execute and deliver to
Sprint Nextel customary transfer documents. Notwithstanding anything
herein to the contrary, including the [***] Option, Buyer shall have the
right to transfer, lease, sublease or otherwise dispose of, or enter into
an agreement to do any of the foregoing, any of the [***] Option Channels
prior to the Seller's delivery [***] Option Notice with respect to such
[***] Option Channels pursuant to this Section 6.5 and in such event
Seller's option to repurchase shall not apply to the applicable [***]
Option Channels.
Section 6.6 FCC Qualifications. Seller hereby covenants and agrees that
prior to and through the Closing (or, as applicable, the final Supplemental
Closing) it shall maintain all necessary qualifications to hold and to renew, as
necessary, the FCC Licenses.
Section 6.7 Consents. The Parties shall use commercially reasonable
efforts and shall cooperate to prepare and promptly file with Governmental
Authorities and other Persons all applications, notices, petitions and other
documentation necessary to obtain the Consents. The Parties agree to cooperate
to consolidate and file all applications, notices and petitions to be filed with
the FCC in as few applications reasonably as possible. Each Party shall furnish
to the other Party all information concerning such Party and its Affiliates
reasonably required for inclusion in any application to be made in connection
with the Transactions or to determine compliance with FCC Rules. Subject to
Section 3.2(e), from the Effective Date and through the Closing (or, as
applicable, the final Supplemental Closing), each Party shall use its best
efforts to obtain Consents to assignment to the other Party of all of the Assets
requiring Consent (including, without limitation, the Consents required to
assign the Spectrum Leases as identified on Schedule 2).
Section 6.8 Interference Consents.
Page 17
(a) Upon Buyer's (or its Affiliate's) request, the Seller will
execute and deliver, or, if not the licenses, use commercially reasonable
efforts to cause the lessor under the application spectrum lease to
execute and deliver, to the Buyer a letter of no objection (substantially
in the form attached hereto as Exhibit G and reasonably satisfactory to
requesting Party's counsel) from the applicable Seller Adjacent
Channel(s) (as defined below) that allows Buyer or its Affiliates to
construct and operate the FCC Licenses and Spectrum Leases as a part of
Buyer's (or its Affiliate's) two-way broadband wireless system until the
Transition is complete in the market for such channels, provided such
operation is otherwise consistent with FCC Rules.
(b) For purposes of this Section 6.8, "Seller Adjacent Channels"
means the channels identified on Schedule 5 and the channels under the FCC
licenses and spectrum leases actually transferred to Seller pursuant to
the Purchase and Sale Agreement, dated as of the date hereof, by and
between Seller and Fixed Wireless Holdings, LLC.
(c) If required by FCC Rules in connection with the transactions
contemplated by Section 6.8(a), Seller will, file, or consent Buyer
filing, such letter of no objection with the FCC in support of a request
for Special Temporary Authority or other application requesting
operational authority from the FCC.
(d) The Parties will cooperate to negotiate a mutually agreeable
separate expanded interference agreement as soon as practicable after the
Effective Date.
Section 6.9 Certain Affirmative Covenants. From the Effective Date and
through the Closing (or, as applicable, the final Supplemental Closing), Seller
shall (a) carry on its business with respect to the Assets as currently
conducted and only in the ordinary course of business; (b) preserve the Assets
in good standing and in full force and effect; (c) comply with all Laws
applicable to the Assets; and (d) maintain in full force and effect the Assets,
in each case, to the extent necessary to Seller's ability to consummate the
Transactions.
Section 6.10 Certain Negative Covenants. From the Effective Date and
through the Closing (or, as applicable, the final Supplemental Closing), Seller
shall not enter into any agreement, arrangement or understanding to, or
otherwise, negotiate, offer or commit to: (a) sell, transfer, assign, lease or
dispose of the Assets or of the spectrum subject to the FCC Licenses and
Spectrum Leases or any interests therein or portion thereof; (b) create, incur
or suffer to exist any Lien or other liability on the Assets or the spectrum
subject to the FCC Licenses and Spectrum Leases or any interest therein; or (c)
amend any Spectrum Lease without the prior written consent of Buyer.
Section 6.11 Access. From the Effective Date to the Closing (or, as
applicable, the final Supplemental Closing), Buyer, its representatives and
advisors shall, during normal business hours have the right of reasonable access
to and inspection of the books, records, and other documents specifically
related to the Assets, as may be reasonably requested of and upon reasonable
notice to Seller.
Section 6.12 Publicity. Subject to the terms of the May 18, 2004 NDA, no
Party shall issue any press release or public announcement concerning this
Agreement or the Transactions
Page 18
without obtaining the prior written approval of the other Party hereto, which
approval will not be unreasonably withheld or delayed.
Section 6.13 Transfer Taxes; FCC Filing Fees. Buyer shall pay in a timely
manner all Transfer Taxes and FCC filing fees resulting from or payable in
connection with the assignment and transfer of the Assets to Buyer pursuant to
this Agreement, in each case regardless of the Person on whom such Transfer
Taxes and/or FCC filing fees are imposed by Law. The Parties shall reasonably
cooperate in providing information and executing and delivering documents
necessary to reduce or eliminate such Transfer Taxes. Where Seller is required
by law to remit the Transfer Taxes to the applicable Government Authority, Buyer
shall promptly pay over the Transfer Taxes due and payable to Seller for timely
remittance to the Government Authority. Where the relevant Law imposes a
Transfer Tax on Seller but permits payment by Buyer, Buyer shall pay the
Transfer Taxes to the applicable Government Authority and promptly provide a
receipt, or other documentary evidence of payment as reasonably requested by
Seller, to Seller.
Section 6.14 Non-Solicitation of Lessors.
(a) Seller Non-Solicitation Obligations. For so long as required
pursuant to Section 6.14(c) and except as provided in Section 6.14(b),
Seller and its Affiliates (i) shall immediately cease all direct and
indirect communications with the lessors under the Spectrum Leases and
(ii) shall not encourage or incite (by promising any financial
consideration, promising any business relationship or otherwise) any third
party to have any direct or indirect communications with the lessors under
the Spectrum Leases.
(b) Permitted Communications. Notwithstanding Section 6.14(a),
Seller and its Affiliates may communicate with any lessor (i) for the
purposes of obtaining the Consent of such lessor, (ii) as required in the
ordinary course of carrying on its obligations under such Spectrum Leases,
or (iii) to the extent that such communications do not relate to the
Spectrum Leases.
(c) Non-Solicitation Period. Seller's (and its Affiliate's)
obligations under this Section 6.14 shall commence upon the Effective Date
and continue until the earlier of (i) the date that this Agreement is
terminated in accordance with Article 9, (ii) nine (9) months after the
Closing or the Supplemental Closing at which the applicable Spectrum Lease
is conveyed to the other Party, and (iii) September 30, 2007, with respect
to any Spectrum Lease not conveyed at a Closing or Supplemental Closing on
or before such date.
ARTICLE 7
CONDITIONS TO CLOSING
Section 7.1 Conditions to the Obligations of Both Parties. Each Party's
obligation to consummate the Transactions is subject to the satisfaction or
waiver, on or prior to Closing Date (or, as applicable, any Supplemental Closing
Date), of each of the following conditions, as applicable to the Party
specified:
(a) The FCC shall have approved the application for consent to the
assignment of the FCC Licenses and Spectrum Leases to the applicable Party
(or its
Page 19
designee) without conditions adverse to such Party, such approval shall
have become a Final Order, and such Final Order shall be in full force and
effect without modifications.
(b) All other notices, filings and Consents required to be made or
obtained prior to the Closing (or, as applicable, Supplemental Closing) by
either Party or any of its respective Affiliates with any Governmental
Authority in connection with the execution and delivery of this Agreement
and the consummation of the Transactions shall have been made or obtained.
(c) No preliminary or permanent injunction or other order, decree or
ruling issued by a Governmental Authority, nor any Law promulgated or
enacted by any Governmental Authority, shall be in effect that would
impose material limitations on the ability of either Party to consummate
the Transactions.
Section 7.2 Conditions to the Obligations of Seller. Seller's obligation
to consummate the Transactions contemplated by this Agreement are subject to the
satisfaction or waiver, on or prior to the Closing Date (or, as applicable,
Supplemental Closing Date), of each of the following conditions:
(a) The representations and warranties of Buyer contained herein
shall be true and correct in all material respects (except for
representations and warranties that are qualified as to materiality, which
shall be true and correct) as of the Closing (or, as applicable,
Supplemental Closing) as if made on and as of the Closing Date (or, as
applicable, Supplemental Closing Date) (except that representations and
warranties that are made as of a specific date need be so true and correct
only as of such date), and Seller shall have received a certificate to
such effect dated the Closing Date (or, as applicable, Supplemental
Closing Date) and executed by a duly authorized officer of Buyer.
(b) The covenants and agreements of Buyer to be performed under this
Agreement on or prior to the Closing (or, as applicable, Supplemental
Closing) shall have been duly performed in all material respects, and
Seller shall have received a certificate to such effect dated the Closing
Date (or, as applicable, Supplemental Closing Date) and executed by a duly
authorized officer of Buyer.
(c) Buyer having delivered to Seller all of the certificates,
documents, instruments and other items required to be delivered to Seller
pursuant to Section 3.4, including, without limitation, Buyer's delivery
to Seller of the Purchase Price.
Section 7.3 Conditions to the Obligations of Buyer. Buyer's obligation to
consummate the Transactions contemplated by this Agreement are subject to the
satisfaction or waiver, on or prior to the Closing Date (or, as applicable,
Supplemental Closing Date), of each of the following conditions:
(a) The representations and warranties of Seller contained herein
shall be true and correct in all material respects (except for
representations and warranties that are qualified as to materiality, which
shall be true and correct) as of the Closing (or, as applicable,
Supplemental Closing) as if made on and as of the Closing Date (or, as
applicable, Supplemental Closing Date) (except that representations and
warranties that
Page 20
are made as of a specific date need be so true and correct only as of such
date), and Buyer shall have received a certificate to such effect dated
the Closing Date (or, as applicable, Supplemental Closing Date) and
executed by a duly authorized officer of Seller; provided, however, that,
with respect to the representations and warranties set forth in Sections
4.4 and 4.5, such representations and warranties and the certificates
relating thereto as required under this section shall only apply with
respect to the Assets subject to the Closing (or, as applicable,
Supplemental Closing).
(b) The covenants and agreements of Seller to be performed under
this Agreement on or prior to the Closing (or, as applicable, Supplemental
Closing) shall have been duly performed in all material respects, and
Buyer shall have received a certificate to such effect dated the Closing
Date (or, as applicable, Supplemental Closing Date) and executed by a duly
authorized officer of Seller; provided, however, that, with respect to the
covenants and/or agreements relating to specific Assets, such covenants
and agreements and any certificates relating thereto shall only apply with
respect to the Assets subject to the Closing (or, as applicable,
Supplemental Closing).
(c) Seller having delivered to Buyer, as applicable, all of the
certificates, documents, instruments and other items required to be
delivered to Buyer pursuant to Section 3.3.
ARTICLE 8
TERMINATION
Section 8.1 Termination. This Agreement may be terminated and the
Transactions thereby abandoned at any time prior to the Closing:
(a) by mutual written consent of Buyer and Seller;
(b) by any Party if the Closing shall not have occurred on or before
September 30, 2006;
(c) by any Party if there shall be any Law, regulation or FCC Rule
that makes consummation of the Transactions illegal or otherwise
prohibited;
(d) by any Party if any of the conditions to the obligations for the
Parties set forth in Section 7.1 shall have become incapable of
fulfillment other than as a result of a breach by the terminating Party of
any covenant or agreement contained in this Agreement;
(e) by Seller if any of the conditions to the obligations of Seller
set forth in Section 7.2 shall have become incapable of fulfillment other
than as a result of a breach by Seller of any covenant or agreement
contained in this Agreement;
(f) by Buyer if any of the conditions to the obligations of Buyer
set forth in Section 7.3 shall have become incapable of fulfillment other
than as a result of a breach by Buyer of any covenant or agreement
contained in this Agreement;
Page 21
(g) by any Party upon the material breach of a representation,
warranty or covenant in this Agreement by the other party if such breach
is not cured within thirty (30) days following written notice by the
non-breaching party which notice shall describe the breach; provided,
however, that termination by a non-breaching Party for the breach of a
material representation and warranty as to a specific FCC License,
Spectrum Lease or Asset shall only serve to terminate the Agreement with
respect to such FCC License, Spectrum Lease or Asset and shall not serve
to terminate the entire Agreement; and
(h) by any Party, if the Transaction Agreement, dated as of the date
hereof, by and among Seller, Buyer and Fixed Wireless Holdings LLC shall
have been terminated in accordance with its terms other than as a result
of a breach by terminating Party (or its Affiliates) of any covenant or
agreement contained in such Transaction Agreement.
A Party desiring to terminate this Agreement pursuant to this Section 8.1 shall
give written notice thereof to the other Party specifying the provision hereof
pursuant to which the Agreement is terminated.
Section 8.2 Effect of Termination. In the event of a valid termination of
this Agreement on our before the Closing, the Agreement shall become null and
void and of no further force and effect and neither Party shall have any
liability or further obligation to the other, except that:
(a) nothing herein will relieve a Party from liability for any
breach by such Party of this Agreement; provided, however, that, with
respect to any breach by Seller of a representation and warranty as to a
specific FCC License, Spectrum Lease or Asset, if such representation and
warranty became untrue after the Effective Date through no fault of the
Seller (or any of such Party's Affiliates, or any of their respective
officers, directors, employees, agents, or representatives), then the sole
remedy of the Buyer shall be to (1) terminate this Agreement solely with
respect to such FCC License, Spectrum Lease or Asset or (2) adjust the
Purchase Price in accordance with Section 3.2(b) based on the amount
allocated to such FCC License, Spectrum Lease or Asset as set forth in
Schedule 3; and
(b) the provisions of Sections 4.7, 5.5, 6.3 and 6.12 and Articles
8, 9 and 10 shall survive the termination of this Agreement.
For the avoidance of doubt, the May 18, 2004 NDA shall survive any termination
of this Agreement.
ARTICLE 9
SURVIVAL AND REMEDIES
Section 9.1 Survival. The representations and warranties and covenants and
other agreements contained in this Agreement shall survive the Closing (or, as
applicable, the Supplemental Closing) until [***] after the Closing Date (or, as
applicable, the Supplemental Closing Date) and shall expire at such time;
provided, however, that the covenants and other agreements set forth in Section
6.5 shall survive until [***] after the earlier of the date that the
transactions contemplated thereby have been consummated or the rights
Page 22
described therein have expired; provided, further, that the covenants and other
agreements set forth in Sections 6.3 and 6.12 and Articles 8, 9 and 10 shall
survive [***] Notwithstanding the foregoing, such representations and warranties
and covenants and other agreements shall not terminate with respect to any item
as to which the Party to be indemnified shall have, before the expiration of the
applicable survival period, previously made a bona fide claim by delivering
proper notice of such claim in accordance with Section 9.4 or Section 9.5.
Section 9.2 Seller Indemnification. Seller shall indemnify and hold
harmless Buyer, Buyer, their respective agents, successors and assigns from and
against any and all Damages based upon, attributable to or resulting from:
(a) except as otherwise provided herein, the failure of any
representation or warranty of Seller as set forth in this Agreement to be
true and correct as of the dates made;
(b) the breach of any covenant or other agreement on the part of
Seller under this Agreement;
(c) the ownership and operation of the Assets prior to the Closing
Date (or, as applicable, the Supplemental Closing Date);
(d) any Excluded Assets or Excluded Liabilities.
Section 9.3 Buyer Indemnification. Buyer shall indemnify and hold harmless
Seller and its agents, successors and assigns from and against any and all
Damages based upon, attributable to or resulting from:
(a) except as provided otherwise herein, the failure of any
representation or warranty of Buyer set forth in this Agreement to be true
and correct as of the dates made;
(b) the breach of any covenant or other agreement on the part of
Buyer under this Agreement;
(c) the ownership and operation of the Assets following the Closing
(or, as applicable, the Supplemental Closing) provided, however [***] the
indemnification obligation pursuant to this subsection (e) shall include
the [***] for the time period between Closing (or, as applicable,
Supplemental Closing) and the closing of [***] by Seller only; and
(d) any Assumed Liabilities.
Section 9.4 Third Party Claims.
(a) In the event that any Claim by any third Person, the indemnified
Party shall reasonably and promptly cause written notice of the assertion
of any Claim of which it has knowledge which is covered by this indemnity
to be forwarded to the indemnifying
Page 23
Party. The indemnifying Party shall have the right, at its sole option and
expense, to be represented by counsel of its choice, which must be
reasonably satisfactory to the indemnified Party, and to defend against,
negotiate, settle or otherwise deal with any Claim which relates to any
Damages indemnified against hereunder; provided, however, that the
indemnifying Party shall not, without the consent of the indemnified
Party, enter into any settlement, compromise or discharge of a Claim that
by its terms (i) includes injunctive or other non-monetary relief that
adversely affects the indemnified Party in any material respect; (ii) does
not release the indemnified Party completely in connection with such
Claim, or (iii) would otherwise adversely affect the indemnified Party in
any material respect. If the indemnifying Party elects to defend against,
negotiate, settle or otherwise deal with any Claim which relates to any
Damages indemnified against hereunder, it shall within fifteen (15) days
(or sooner, if the nature of the Claim so requires) notify the indemnified
Party of its intent to do so. If the indemnifying Party shall assume the
defense of any Claim, the indemnified Party may participate, at its own
expense, in the defense of such Claim; provided, however, that such
indemnified Party shall be entitled to participate in any such defense
with separate counsel at the expense of the indemnifying Party if (i) so
requested by the indemnifying Party to participate or (ii) in the
reasonable opinion of counsel to the indemnified Party, a conflict or
potential conflict exists between the indemnified Party and the
indemnifying Party that would make such separate representation advisable;
and provided, further, that the indemnifying Party shall not be required
to pay for more than one such counsel for all indemnified Parties in
connection with any Claim.
(b) If the indemnifying Party elects not to defend against,
negotiate, settle or otherwise deal with any Claim which relates to any
Damages indemnified against hereunder, fails to notify the indemnified
party of its election as herein provided or disputes its obligation to
indemnify the indemnified Party for such Damages under this Agreement, the
indemnified Party may defend against, negotiate, settle or otherwise deal
with such Claim; provided, however, that the indemnified Party shall not,
without the consent of the indemnifying Party, enter into any settlement,
compromise or discharge of a Claim that by its terms includes injunctive
or other non-monetary relief that adversely affects the indemnifying Party
in any material respect. If the indemnified Party defends any Claim, then
the indemnifying Party shall reimburse the indemnified Party for the
Damages, including without limitation, the reasonable expenses incurred by
the indemnified Party in defending such Claim upon submission of periodic
bills, subject to the dispute of such Damage amounts as provided in
Section 9.4(c).
(c) If the indemnifying Party disputes the amount of any Damages
("Damages Dispute") payable by the indemnifying party pursuant to Section
9.4(b), the indemnifying Party shall notify the indemnified Party of such
disagreement within fifteen (15) days of the receipt of the Claim.
Thereupon, the indemnified Party and the indemnifying Party will negotiate
in good faith and use reasonable efforts to resolve their differences with
respect to the Damages presented in such Claim during the thirty (30) days
following the indemnifying Party's notice of disagreement to the
indemnified Party. In the event such dispute is not resolved upon the
expiration of the thirty (30) day period following the indemnifying
Party's notice of disagreement to the indemnified Party, either Party
shall be entitled to immediately proceed to file an action in any
appropriate court to seek such
Page 24
relief that is appropriate and reasonably necessary to protect that
Party's rights. If final adjudication of the Damages Dispute results in a
decision in favor of the indemnifying Party, the indemnified Party shall
not be entitled to reimbursement for any expense that may be incurred in
defending such Damages Dispute.
(d) The Parties agree to cooperate fully with each other in
connection with the defense, negotiation, or settlement of any Claim by a
third Person.
(e) After any final judgment or award shall have been rendered by a
court, arbitration board or administrative agency of competent
jurisdiction and the expiration of the time in which to appeal therefrom,
or a settlement shall have been consummated, or the indemnified Party and
the indemnifying Party shall have arrived at a mutually binding agreement
with respect to a Claim hereunder, the indemnified Party shall forward to
the indemnifying Party notice of any sums due and owing by the
indemnifying Party pursuant to this Agreement with respect to such matter.
(f) The failure of the indemnified Party to give reasonably prompt
notice of any Claim shall not release, waive or otherwise affect the
indemnifying Party's obligations with respect thereto except to the extent
that the indemnifying Party can demonstrate actual loss and prejudice as a
result of such failure.
Section 9.5 Other Claims. Any indemnifiable Claim hereunder that is not a
Claim by a third Person shall be asserted by the indemnified Party by promptly
delivering written notice thereof (including the basis of the Claim and the
amount thereof, if known and quantifiable) to the indemnifying Party. The
failure of the indemnified Party to give reasonably prompt notice of any Claim
shall not release, waive or otherwise affect the indemnifying Party's
obligations with respect thereto except to the extent that the indemnifying
Party can demonstrate actual loss and prejudice as a result of such failure. If
the indemnifying Party does not respond to such notice within sixty (60) days
after its receipt, it shall have no further right to contest the validity of
such claim.
Section 9.6 Calculation of Losses; Limitation of Liability; Remedies.
(a) The amount of any Damages for which indemnification is provided
under this Article 9 shall be (i) net of any amounts actually recovered by
the indemnified Party under such Party's insurance policies with respect
to such Damages, (ii) net of any amounts actually recovered from any third
Person (by contribution, indemnification or otherwise) with respect to
such Damages, and (iii) adjusted for Taxes so as to put the indemnified
Party in the same pre-tax financial position as it would have been had the
other Party's representations and warranties hereunder been true and
correct in all respects, the other Party's covenants and agreements been
performed in full, and any other event giving rise to Damages had not
occurred. Any indemnification payment made pursuant to this Article 9
shall be treated as an adjustment to the Purchase Price for U.S. Federal
income tax purposes.
(b) Subject to Section 9.6(e), the aggregate indemnification
obligations of Seller pursuant to Sections 9.2(a) and (b) shall not exceed
the lesser of [***]
Page 25
[***] or the Purchase Price actually received by Seller in accordance with
Section 3.4(a) (as and when received), and the aggregate indemnification
obligations of Buyer pursuant to Sections 9.3(a) and (b) shall not exceed
[***] No Party shall be liable to the other Parties pursuant to Section
9.2 or Section 9.3, as applicable, unless and only to the extent that the
aggregate Damages suffered by the indemnified Party, collectively, exceeds
[***]
(c) Subject to Section 9.6(e), the Parties acknowledge that their
sole and exclusive remedy for monetary damages after the Closing with
respect to any and all claims under this Agreement (other than claims of,
or causes of action arising from, actual fraud) shall be pursuant to the
indemnification provisions set forth in this Article 9.
(d) SUBJECT TO SECTION 9.6(E), IN NO EVENT SHALL ANY PARTY BE LIABLE
FOR INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF A
BREACH OF THIS AGREEMENT, EVEN IF ADVISED AT THE TIME OF BREACH OF THE
POSSIBILITY OF SUCH DAMAGES.
(e) Notwithstanding anything to the contrary in this Agreement, the
provisions of Sections 9.6(b), (c), and (d) will not apply to, or in any
way limit or restrict, any Claim by either Party for the other Party's
breach of its obligations under Section 6.3.
ARTICLE 10
MISCELLANEOUS
Section 10.1 Entire Agreement. Except for the May 18, 2004 NDA, this
Agreement constitutes the entire agreement between the Parties pertaining to the
subject matter hereof and supersedes all prior and contemporaneous agreements,
understandings, negotiations and discussions, whether oral or written, of the
Parties with respect to the subject matter hereof.
Section 10.2 No Other Representations or Warranties. Except for the
representations and warranties set forth in Articles 4 and 5, no Party is making
any representations or warranties, written or oral, statutory, express Or
implied, in relation to the Assets, the Assumed Liabilities or the Transactions.
Section 10.3 Amendments and Waivers. Any provision of this Agreement may
be amended or waived if, and only if, such amendment or waiver is in writing and
signed (in the case of an amendment) by Seller and Buyer or (in the case of a
waiver) by the Party against whom the waiver is to be effective. No failure or
delay by any Party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
Section 10.4 Assignment. This Agreement shall be binding upon and shall
inure to the benefit of the Parties and their respective successors and
permitted assigns. This Agreement may not be assigned by either Party without
the prior written consent of the other Party, which shall not be unreasonably
withheld, conditioned or delayed, except that either Party may assign its
Page 26
rights under this Agreement to any direct or indirect subsidiary or affiliate
and any entity that acquires or otherwise merges or consolidates with the
assigning Party, upon delivery of written notice to the other Party.
Section 10.5 Notices. All notices or other communications hereunder shall
be in writing and shall be deemed to have been duly given or made (i) upon
delivery if delivered personally (by courier service or otherwise), as evidenced
by written receipt or other written proof of delivery (which may be a printout
of the tracking information of a courier service that made such delivery), (ii)
upon confirmation of dispatch if sent by facsimile transmission (which
confirmation shall be sufficient if shown by evidence produced by the facsimile
machine used for such transmission), in each case to the applicable addresses
set forth below (or such other address which either Party may from time to time
specify); or (iii) the next business day if sent by overnight delivery via a
reliable express delivery service:
If to Seller:
Nextel Spectrum Acquisition Corp.
[***]
With a Copy to:
[***]
If to Buyer:
Clearwire Spectrum Holdings LLC
0000 Xxxx Xxxxxxxxxx Xxxx. X.X.
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx
Phone: 000-000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxx Xxxxxx Xxxxxxxx LLP
Page 27
0000 Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Phone: 000-000-0000
Facsimile: 000-000-0000
Section 10.6 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the internal Laws of New York, without reference
to the choice of law principles thereof.
Section 10.7 Attorney's Fees. In any legal proceeding by a Party to
enforce its rights under this Agreement against the other Party, the Party
prevailing in such proceeding will be entitled to recover its reasonable
attorney's fees and costs from the other Party.
Section 10.8 Expenses. Except as otherwise expressly provided in this
Agreement, whether or not the Transactions are consummated, the Parties shall
bear their respective expenses (including, but not limited to, all compensation
and expenses of counsel, financial advisors, consultants, actuaries and
independent accountants) incurred in connection with this Agreement and the
Transactions.
Section 10.9 Invalidity. In the event that any of the provisions contained
in this Agreement or in any other instrument referred to herein, shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement or such other instrument and such provision will be
ineffective only to the extent of such invalidity, illegality or
unenforceability, unless the consummation of the Transactions is impaired
thereby.
Section 10.10 Force Majeure. No Party will be liable for any
nonperformance under this Agreement due to causes beyond its reasonable control
that could not have been reasonably anticipated by the non-performing Party and
that cannot be reasonably avoided or overcome; provided that the non-performing
party gives the other Party prompt written notice of such cause, and in any
event, within fifteen (15) calendar days of its discovery.
Section 10.11 Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) 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.
Section 10.12 Headings. The headings of the Articles and Sections herein
are inserted for convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
[SIGNATURE PAGE FOLLOWS]
Page 28
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of
the date first above written.
NEXTEL SPECTRUM ACQUISITION CORP.
By: [***]
-------------------------------------
Name: [***]
Title: Senior Vice President
CLEARWIRE SPECTRUM HOLDINGS LLC
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice-President
Page 29
EXHIBIT A
FORM OF INSTRUMENT OF ASSIGNMENT FOR LICENSES
INSTRUMENT OF ASSIGNMENT (the "Instrument of Assignment"), dated as of
_____________________, 200____, by and between Nextel Spectrum Acquisition
Corp., a Delaware Corporation ("Assignor"), and Clearwire Spectrum Holdings LLC,
a Nevada limited liability company ("Assignee"). Capitalized terms used herein
without definition shall have the respective meanings assigned to them in the
Purchase Agreement (as defined below).
WHEREAS, Assignor and Assignee have entered into a Purchase and Sale
Agreement (the "Purchase Agreement"), dated as of___________________________,
2005, pursuant to which, among other things, Assignor agreed to convey to
Assignee, and Assignee agreed to acquire, the FCC licenses set forth on Annex A
hereto (the "Licenses");
WHEREAS, Assignor and Assignee have filed an application with the FCC
requesting the assignment of the Licenses to Assignee; and
WHEREAS, the FCC has granted an application for the assignment of the
Licenses.
NOW, THEREFORE, in consideration of the promises and the mutual
representations, warranties, covenants, conditions, and agreements in the
Purchase Agreement and hereinafter set forth, the Parties agree as follows:
1. Assignment. Subject to the terms and conditions of the Purchase
Agreement, for valuable consideration, receipt of which is hereby
acknowledged, Assignor, intending to be legally bound, does hereby sell,
assign, transfer, convey, and deliver to Assignee, its successors and
assigns forever, all right and interest of Assignor in and to the
Licenses, free and clear of all Liens.
2. Terms of Purchase Agreement Control. Nothing contained in this
Instrument of Assignment shall in any way supersede, modify, replace,
amend, change, rescind, waive, exceed, expand, enlarge, or in any way
affect the provisions of the Purchase Agreement, including the warranties,
covenants, agreements, conditions and representations contained in the
Purchase Agreement and, in general, any of the rights and remedies, and
any of the obligations and indemnifications, of Assignor or Assignee set
forth in the Purchase Agreement.
3. Further Assurances. Assignor and Assignee covenant and agree, in
connection with the Purchase Agreement and this Instrument of Assignment,
to promptly execute and deliver all additional documents and instruments
and perform all additional acts that, in each case, are reasonably
necessary and desirable to effectuate and perform the provisions of this
Instrument of Assignment, including, without limitation, the assignments
provided for in Section 1 hereof.
4. Miscellaneous. This Instrument of Assignment (a) is executed
pursuant to the Purchase Agreement and may be executed in counterparts,
each of which as so executed shall be deemed to be an original, but all of
which together shall constitute one
Exhibit A
instrument, (b) shall be governed by and in accordance with the internal
Laws of the State of New York, without regard to the principles of
conflicts of law thereof and (c) shall be binding upon and inure to the
benefit of the Parties hereto and their respective successors and
permitted assigns.
Exhibit A
Page 2
IN WITNESS WHEREOF, Assignor and Assignee have each caused this Instrument
of Assignment to be duly executed and delivered as of the date first above
written.
NEXTEL SPECTRUM ACQUISITION CORP.
By:
_____________________________________
Name:
___________________________________
Title:
__________________________________
CLEARWIRE SPECTRUM HOLDINGS LLC
By:
_____________________________________
Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice-President
Exhibit A
Page 3
EXHIBIT B
FORM OF ASSIGNMENT AND ASSUMPTION FOR SPECTRUM LEASES
THIS ASSIGNMENT AND ASSUMPTION (this "Assignment and Assumption") is
entered into effective as of the________day of_____________________, 200____, by
and between Nextel Spectrum Acquisition Corp., a Delaware Corporation
("Assignor"), and Clearwire Spectrum Holdings LLC, a Nevada limited liability
company ("Assignee"), pursuant to that certain Purchase and Sale Agreement (the
"Purchase Agreement") dated as of________________________, 2005, by and among
Assignor and Assignee and others, pursuant to which, among other things,
Assignor agreed to assign, and Assignee agreed to assume, certain of Assignor's
liabilities and obligations. Capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Purchase Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual
representations, warranties, covenants, conditions, and agreements in the
Purchase Agreement and hereinafter set forth, the Parties agree as follows:
1. Assignment. Subject to the terms and conditions of the Purchase
Agreement, for valuable consideration, Assignor does hereby assign, grant,
transfer, convey, and set over unto Assignee all of Assignor's rights,
title and interest in and to the contracts set forth on Annex A hereto
(the "Transferred Contracts"), free and clear of all Liens.
2. Assumption. Subject to the terms of the Purchase Agreement, for
valuable consideration, Assignee hereby undertakes, assumes and agrees to
perform, pay or discharge when and as due all of the Assumed Liabilities
(including, without limitation, all liabilities of Assignor or its
Affiliates under the Transferred Contracts that arise, are incurred, or
are required to be performed from and after the date hereof).
3. Terms of Purchase Agreement Control. Nothing contained in this
Assignment and Assumption shall in any way supersede, modify, replace,
amend, change, rescind, waive, exceed, expand, enlarge, or in any way
affect the provisions of the Purchase Agreement, including the warranties,
covenants, agreements, conditions and representations contained in the
Purchase Agreement and, in general, any of the rights and remedies, and
any of the obligations and indemnifications, of Assignor or Assignee set
forth in the Purchase Agreement.
4. Further Assurances. Assignor and Assignee covenant and agree, in
connection with the Purchase Agreement and this Assignment and Assumption,
to promptly execute and deliver all additional documents and instruments
and perform all additional acts that, in each case, are reasonably
necessary and desirable to effectuate and perform the provisions of this
Assignment and Assumption, including, without limitation, the assignments
provided for in Section 1 hereof and the assumptions provided for in
Section 2 hereof.
5. Miscellaneous. This Assignment and Assumption (a) is executed
pursuant to the Purchase Agreement and may be executed in counterparts,
each of which as so
Exhibit B
executed shall be deemed to be an original, but all of which together
shall constitute one instrument, (b) shall be governed by and in
accordance with the internal Laws of the State of New York, without regard
to the principles of conflicts of law thereof and (c) shall be binding
upon and inure to the benefit of the Parties hereto and their respective
successors and permitted assigns.
Exhibit B
Page 2
IN WITNESS WHEREOF, Assignor and Assignee have each caused this Assignment
and Assumption to be duly executed and delivered as of the date first above
written.
NEXTEL SPECTRUM ACQUISITION CORP.
By:
____________________________________
Name:
__________________________________
Title:
_________________________________
CLEARWIRE SPECTRUM HOLDINGS LLC
By:
____________________________________
Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice-President
Exhibit B
Page 3
EXHIBIT C
FORM OF XXXX OF SALE
THIS XXXX OF SALE (this "Xxxx of Sale") is made effective as of
the______day of ____________, 200___, by Nextel Spectrum Acquisition Corp., a
Delaware Corporation ("Grantor"), for the benefit of Clearwire Spectrum Holdings
LLC, a Nevada limited liability company ("Grantee").
WHEREAS, Grantor and Grantee entered into that certain Purchase and Sale
Agreement (the "Purchase Agreement") dated as of_____________, 2005, pursuant to
which Grantor agreed to, among other things, sell, assign, transfer, convey and
deliver to Grantee certain assets. Capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Purchase Agreement;
WHEREAS, Grantor and Grantee entered into that certain Instrument of
Assignment, dated as of the date hereof, whereby Grantor assigned to Grantee the
FCC licenses designated therein (the "Transferred FCC Licenses");
WHEREAS, Grantor and Grantee entered into that certain Assignment and
Assumption, dated as of the date hereof, whereby Grantor assigned to Grantee the
contracts designated therein (the "Transferred Contracts"); and
WHEREAS, pursuant to the terms of the Purchase Agreement, Grantor desires
to assign to Grantee all of the Assets (other than the FCC Licenses and Spectrum
Leases) that are used in relation to the Transferred FCC Licenses and/or
Transferred Contracts and not used in relation to any Asset to be conveyed to
the Grantee after the date hereof (the "Transferred Related Assets").
NOW, THEREFORE, in consideration of the promises and the mutual
representations, warranties, covenants, conditions, and agreements in the
Purchase Agreement:
1. Sale. For valuable consideration, Grantor hereby sells, assigns,
transfers, conveys and delivers to Grantee all of Grantor's right, title
and interest in, to and under the Transferred Related Assets free and
clear of all Liens.
2. Terms of Purchase Agreement Control. Nothing contained in this
Xxxx of Sale shall in any way supersede, modify, replace, amend, change,
rescind, waive, exceed, expand, enlarge, or in any way affect the
provisions of the Purchase Agreement, including the warranties, covenants,
agreements, conditions and representations contained in the Purchase
Agreement and, in general, any of the rights and remedies, and any of the
obligations and indemnifications, of Assignor or Assignee set forth in the
Purchase Agreement.
3. Miscellaneous. This Xxxx of Sale (a) is executed pursuant to the
Purchase Agreement and may be executed in counterparts, each of which as
so executed shall be deemed to be an original, but all of which together
shall constitute one instrument, (b) shall be governed by and in
accordance with the internal Laws of the State of New York, without regard
to the principles of conflicts of law thereof and (c) shall be binding
upon
Exhibit C
the Grantor and inure to the benefit of the Grantee and their respective
successors and permitted assigns.
IN WITNESS WHEREOF, Grantor has caused this Xxxx of Sale to be duly
executed and delivered as of the date first above written.
NEXTEL SPECTRUM ACQUISITION CORP.
By:_______________________________
Name:_____________________________
Title:____________________________
Exhibit C
Page 2
EXHIBIT D
FORM OF OFFICER'S CERTIFICATE
This OFFICER'S CERTIFICATE (this "Certificate") is made by [Nextel
Spectrum Acquisition Corp., a Delaware corporation ("Seller")][Clearwire
Spectrum Holdings LLC, a Nevada limited liability company ("Buyer")] for the
benefit of [Nextel Spectrum Acquisition Corp., a Delaware corporation
("Seller")] [Clearwire Spectrum Holdings LLC, a Nevada limited liability company
("Buyer")] pursuant to that certain Purchase and Sale Agreement, dated as
of_______________, 2005 (the "Purchase Agreement"), by and among Seller and
Buyer. Capitalized terms not otherwise defined herein shall have the respective
meanings set forth in the Purchase Agreement.
Pursuant to Sections [7.2(a) and 7.2(b)] [7.3(a) and 7.3(b)] of the
Purchase Agreement, [Seller] [Buyer] does hereby certify that:
1. The representations and warranties of [Seller] [Buyer] (except those
with respect to [FCC Licenses or Spectrum Leases] that are no longer legally
available to transfer through no fault of [Seller] [Buyer]) contained in the
Purchase Agreement are true and correct in all material respects (except for
representations and warranties that are qualified as to materiality, which are
true and correct) as of the date hereof (except for those representations and
warranties that were made as of a specific date need be so true and correct only
as of such date)[; [provided, however, that, with respect to the representations
and warranties set forth in Sections 4.4 and 4.5, this certificate shall only
apply with respect to the Assets subject to the [Closing] [Supplemental Closing]
that occurred on the date hereof(1)].
2. The covenants and agreements of [Seller] [Buyer] (except those with
respect to [FCC Licenses or Spectrum Leases] that are no longer legally
available to transfer through no fault of [Seller]) to be performed under the
Purchase Agreement on or prior to the date hereof have been duly performed in
all material respects[; provided, however, that, with respect to the covenants
and/or agreements relating to specific Assets, this certificate shall only apply
with respect to the Assets subject to the [Closing] [Supplemental Closing] that
occurred on the date hereof(2)].
IN WITNESS WHEREOF, [Seller] [Buyer] has executed and delivered this
Certificate as of this______day of_____________, 200______
[Seller][Buyer]
By:_______________________________
Name:_____________________________
Title:____________________________
----------
(1) Bracketed proviso applies only the Seller's form of certificate.
(2) Bracketed proviso applies only the Seller's form of certificate.
Exhibit D
EXHIBIT E
FORM OF SECRETARY'S CERTIFICATE
In accordance with [Section 3.3(e)] [Section 3.4(e)] of that certain
Purchase and Sale Agreement, dated as of_________________, 2005 (the "Purchase
Agreement"), by and among Nextel Spectrum Acquisition Corp., a Delaware
corporation ("Seller"), and Clearwire Spectrum Holdings LLC, a Nevada limited
liability company ("Buyer"), the undersigned, on behalf of [Seller] [Buyer],
does hereby certify to [Seller] [Buyer], as of the date hereof, that:
1. Attached hereto as Annex-1 is a true and correct copy of the
[Certificate of Incorporation of Seller] [Certificate of Formation of Buyer] as
filed with the Secretary of State of [Delaware] [Nevada], which has not been
amended, modified, repealed or rescinded and is in full force and effect as of
the date hereof.
2. Attached hereto as Annex-2 is a true and correct copy of the [Bylaws of
Seller, adopted by the Board of Directors of Seller] [Limited Liability Company
Agreement of Buyer, adopted by the Members of Buyer], which ha[s][ve] not been
amended, modified, repealed or rescinded and [is] [are] in full force and effect
as of the date hereof.
3. [Attached hereto as Annex-3 is a true and correct copy of the [written
action] [resolutions] adopted by the board of directors of Clearwire
Corporation, as the sole member of Buyer, which has not been amended, modified,
repealed or rescinded and is in full force and effect as of the date hereof,
authorizing the execution of the Purchase Agreement and the consummation of the
transactions contemplated thereby.](3)
4. The officers of [Seller] [Buyer] whose names and signatures appear on
the Incumbency Schedules attached to this Secretary's Certificate as Annex-4 are
duly elected or appointed, qualified, and acting officers of [Seller] [Buyer],
holding on the date hereof the offices set opposite their respective names, and
the signatures opposite their names are their own genuine signatures.
IN WITNESS WHEREOF, [Seller] [Buyer] has executed and delivered this
Secretary's Certificate as of this______day of___________, 200______.
[Seller][Buyer]
By:_______________________________
Name:_____________________________
Title:____________________________
----------
(3) This transaction will not be approved by Seller's board as it is
within the ordinary course of Seller's business operations.
Exhibit F
EXHIBIT F
FORM OF CONSENT TO ASSIGNMENT
NEXTEL SPECTRUM ACQUISITION CORP.
[_____________, 200_]
[Lessor Name]
[Lessor Address]
___________________________
___________________________
Re: [Lease], dated [__________________, ______], by and between [Lessor]
and [Lessee] (the "Lease")
Ladies and Gentlemen:
Nextel Spectrum Acquisition Corp. ("Assignor") and Clearwire Spectrum
Holdings, LLC ("Assignee") are parties to that certain Purchase and Sale
Agreement, dated [__________________, 2005] (the "Purchase Agreement"), pursuant
to which, among other things, Assignor desires to assign, and Assignee desires
to assume, all of Assignor's right, title and interest in, to and under the
Lease (the "Assignment").
Section [ ] of the Lease requires your consent to the Assignment.
Accordingly, we hereby request your consent to the Assignment pursuant to the
terms and conditions set forth in the Purchase Agreement. By signing below, you
hereby consent to the Assignment and release Assignor from performance of all
obligations of Assignor under the Lease.
This Consent to Assignment is conditioned upon, and shall not be effective
until, the consummation of the Assignment in accordance with the terms of the
Purchase Agreement. This Consent does not constitute a consent to any subsequent
assignment.
Your consideration of this matter is appreciated. Should you have any
questions or comments, please do not hesitate to call [contact] at [phone
number].
Very truly yours,
[Assignor Officer]
ACKNOWLEDGED and AGREED,
this____day of___________, 2005.
[Lessor]
By:_____________________________
Name:___________________________
Title:__________________________
Exhibit F
EXHIBIT G
EXECUTION COPY
FIRST AMENDMENT
This First Amendment (this "First Amendment"), dated as of December 12,
2005, is entered into by and between Nextel Spectrum Acquisition Corp., a
Delaware corporation ("Seller") and Clearwire Spectrum Holdings LLC, a Nevada
limited liability company ("Buyer").
RECITALS
A. This First Amendment amends that certain Purchase and Sale Agreement
(the "Agreement"), dated as of October 24, 2005, by and among Seller and Buyer.
Capitalized terms used, but not defined, in this First Amendment have the
meanings ascribed to such terms in the Agreement.
B. Pursuant to the rules of the Federal Communications Commission ("FCC"),
all site specific BRS licenses that have a [***] prefix (the [***] Licenses")
have been incorporated into their related basic trading area BRS licenses (the
"BTA Licenses"), and, as a result, all [***] Licenses have ceased to separately
exist. Therefore, all the frequencies formerly associated with the [***]
Licenses are now associated with their corresponding BTA Licenses reflected on
the revised schedule 1 to the Agreement attached hereto as Exhibit A.
C. Seller and Buyer desire to amend the Agreement: pursuant to Section
10.3 of the Agreement in order to reflect that, pursuant to FCC Rules, the [***]
Licenses that are listed on Schedule 1 to the Agreement have been incorporated
into their related BTA Licenses.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, Seller and Buyer agree as follows:
ARTICLE I
AMENDMENTS
Section 1.1 FCC Licenses Schedule. Schedule 1 of the Agreement is hereby
amended and restated in its entirety in the form attached hereto as Exhibit A.
Section 1.2 Treatment of [***] Licenses. For all purposes under the
Agreement, all [***] Licenses will be deemed to be incorporated with and into
their related BTA Licenses as indicated by the amended and restated Schedule 1
of the Agreement, which is attached hereto as Exhibit A. In order to calculate
the value allocated to any BTA License (including, without limitation, such
calculations for purposes of determining the satisfaction of the Closing
Conditions set forth in Section 3.2(a) of the Agreement, any adjustments to the
Purchase Price pursuant to Section 3.2(b) of the Agreement, any allocation [***]
of the Purchase Price pursuant to Section 3.6 of the Agreement and the
calculation of the [***] Purchase Price pursuant to Section 6.5(c)), such value
shall include the value of the related [***] Licenses. By way of example and for
purposes of illustration only, the value allocated to the BTA License for
[***] shall equal [***] which is the aggregate of the original value of [***]
attributed to that BTA License and the original values for the related [***]
Licenses of
[***] respectively.
ARTICLE II
MISCELLANEOUS
Section 2.1 Acknowledgment. Buyer and Seller acknowledge and agree that
the merger of the KNS Licenses with and into the related BTA Licenses and the
resulting extinguishment of such KNS Licenses shall not constitute a breach of
any representation, warranty or covenant of Buyer or Seller under the Agreement,
including, without limitation, Sections 4.4,4.9,6.1,6.9,6.10,7.3 and 9.2(a) of
the Agreement.
Section 2.2 Affirmation of Agreement. Except as expressly amended hereby,
all terms, conditions and provisions of the Agreement are hereby reaffirmed and
shall remain in full force and effect.
Section 2.3 Governing Law. This First Amendment shall be governed by, and
construed in accordance with, the internal laws of the State of New York,
without reference to the choice of law principles thereof.
Section 2.4 Headings. The headings contained in this First Amendment are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this First Amendment.
Section 2.5 Counterparts. This First Amendment may be executed in one or
more counterparts, each of which shall be deemed an original and all of which
shall together constitute one and the same agreement, and shall become effective
when one or more such counterparts have been signed by each of the parties and
delivered to the other party.
[Remainder of Page Blank - Signature Page Follows]
2
IN WITNESS WHEREOF, Seller and Buyer have duly executed this First
Amendment as of the date first written above
NEXTEL SPECTRUM ACQUISITION CORP.
By: [***]
------------------------------
Name: [***]
Title: VP
CLEARWIRE SPECTRUM HOLDINGS LLC
By: /s/ Xxx Xxxxx
------------------------------
Name: Xxx Xxxxx
Title: Executive Vice President
