EXHIBIT 2.1
EXECUTION COPY
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ASSET PURCHASE AGREEMENT
AMONG
IDT WINSTAR ACQUISITION, INC.,
WINSTAR COMMUNICATIONS, INC.
AND
CERTAIN OF ITS SUBSIDIARIES
SET FORTH ON APPENDIX I HERETO
DATED AS OF DECEMBER 18, 2001
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions.....................................................................1
Section 1.2 Construction....................................................................6
ARTICLE II
PURCHASE AND SALE
Section 2.1 Purchase and Sale of Assets.....................................................6
Section 2.2 Excluded Assets.................................................................8
Section 2.3 Assumed Liabilities.............................................................9
Section 2.4 Excluded Liabilities...........................................................10
Section 2.5 Assumption of Certain Leases and Other Contracts...............................10
Section 2.6 Intercompany Receivables.......................................................11
Section 2.7 Winstar Building...............................................................11
ARTICLE III
PURCHASE PRICE
Section 3.1 Purchase Price.................................................................11
Section 3.2 Cash Payment at Signing........................................................12
Section 3.3 Allocation of Purchase Price...................................................12
ARTICLE IV
THE CLOSING AND LICENSE TRANSFER
Section 4.1 Time and Place of Closing......................................................12
Section 4.2 Deliveries by the Sellers......................................................13
Section 4.3 Deliveries by the Buyer........................................................13
Section 4.4 Management Transition..........................................................13
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE BUYER
Section 5.1 Organization...................................................................13
Section 5.2 Authority Relative to this Agreement...........................................13
Section 5.3 Consents and Approvals; No Violation...........................................14
Section 5.4 Qualifications to Hold Permits.................................................14
Section 5.5 Legal Proceedings and Judgments................................................14
Section 5.6 Brokers........................................................................14
Section 5.7 Buyer Financing................................................................14
Section 5.8 Capitalization.................................................................14
Section 5.9 Valid Issuance of IDT and Buyer Shares.........................................15
Section 5.10 Disclaimer of Other Representations and Warranties.............................15
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ARTICLE VI
COVENANTS OF THE PARTIES
Section 6.1 Conduct of Business............................................................15
Section 6.2 Access to Information; Maintenance of Records..................................15
Section 6.3 Expenses.......................................................................17
Section 6.4 Further Assurances.............................................................17
Section 6.5 Public Statements..............................................................17
Section 6.6 Governmental Authority Consents and Approvals..................................18
Section 6.7 Tax Matters....................................................................19
Section 6.8 Litigation Support.............................................................20
Section 6.9 Notification...................................................................20
Section 6.10 Submission for Bankruptcy Court Approval.......................................20
Section 6.11 D&O Policies...................................................................21
Section 6.12 Use of Winstar Name............................................................21
ARTICLE VII
CONDITIONS TO CLOSING
Section 7.1 Conditions to Each Party's Obligations to Effect the Closing...................21
Section 7.2 Conditions to Obligations of the Buyer.........................................22
Section 7.3 Conditions to Obligations of the Sellers.......................................22
ARTICLE VIII
TERMINATION AND ABANDONMENT
Section 8.1 Termination....................................................................23
Section 8.2 Procedure and Effect of Termination............................................24
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Amendment and Modification.....................................................24
Section 9.2 Waiver of Compliance; Consents.................................................24
Section 9.3 Survival.......................................................................24
Section 9.4 No Impediment to Liquidation...................................................25
Section 9.5 Notices........................................................................25
Section 9.6 Assignment.....................................................................26
Section 9.7 Third-Party Beneficiaries......................................................26
Section 9.8 Severability...................................................................26
Section 9.9 Governing Law..................................................................27
Section 9.10 Submission to Jurisdiction.....................................................27
Section 9.11 Counterparts...................................................................27
Section 9.12 Incorporation of Schedule and Exhibits.........................................27
Section 9.13 Entire Agreement...............................................................27
Section 9.14 Headings.......................................................................27
Section 9.15 Remedies.......................................................................27
Section 9.16 Bulk Sales or Transfer Laws....................................................27
APPENDIX I Subsidiaries of Winstar Parties Hereto
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EXHIBITS
Exhibit A Assumed Agreements
Exhibit B Form of Xxxx of Sale
Exhibit C Form of Escrow Agreement
Exhibit D Form of Management Agreement
Exhibit E Form of Sale Order
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is made as of December
18, 2001 by and among Winstar Communications, Inc., a Delaware corporation
("Winstar") and certain of its subsidiaries set forth on Appendix I hereto
(collectively, the "Sellers"), and IDT Winstar Acquisition, Inc., a Delaware
corporation (the "Buyer").
WHEREAS, the Buyer desires to purchase from the Sellers, and the
Sellers desire to sell to the Buyer, the Purchased Assets (as hereinafter
defined) upon the terms and conditions hereinafter set forth in this Agreement;
and
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements hereinafter set forth, and intending
to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. (a) As used in this Agreement, the following
terms have the meanings specified in this Section 1.1(a).
"Accounts Receivable" means any and all accounts receivable, notes and
other amounts receivable from third parties (including, to the extent
permissible under applicable law, revenues from all accounts of the former and
current customers of the Business), together with any interest or unpaid
financing charges accrued thereon, excluding, all Excluded Receivables.
"Affiliate" means, with respect to any specified Person, any other
Person that directly, or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person, provided that Net 2 Phone, Inc. and Liberty Media Corp. shall not be
deemed to be Affiliates of the Buyer.
"AON Sublease" means the Assignment and Assumption of Lease Documents
by and between AON Service Corporation and Winstar, dated as of September 25,
2001, with respect to the Winstar Building and related agreements and
documentation thereto, as amended as of the date hereof.
"Assumed Agreements" means any contract, agreement, real or personal
property lease, commitment, understanding or instrument which relates to the
Business or the Purchased Assets for which the Sellers have obtained an order
authorizing the assignment and assumption thereof to the Buyer and which is
listed on Exhibit A attached hereto, which Exhibit may be amended from time to
time by the Buyer for a period of time up to 120 days after the Closing Date.
"Bankruptcy Code" means Title 11 of the United States Code, 11
U.S.C.ss.ss.101, et seq.
"Bankruptcy Court" means the United States Bankruptcy Court for the
District of Delaware or such other court having competent jurisdiction over the
Chapter 11 Cases.
"Xxxx of Sale" means the Xxxx of Sale to be executed and delivered by
the Sellers at the Closing, substantially in the form of Exhibit B attached
hereto.
"Business" means the activities carried on by the Sellers for the
purpose of providing local and long distance voice services, Internet access,
data transport services, application services and hosting services and any
activities related thereto; provided that "Business" shall not include any of
the activities carried on by any of the Excluded Subsidiaries (none of which are
material to the Business).
"Business Day" means any day that is not a Saturday, Sunday or other
day on which banks are required or authorized by law to be closed in the City of
New York.
"Buyer Representatives" means the Buyer's accountants, employees,
counsel, financial advisors and other authorized representatives.
"Chapter 11 Cases" means the Sellers' cases commenced under Chapter 11
of the Bankruptcy Code.
"Code" means the Internal Revenue Code of 1986, as amended through the
date hereof.
"Communications Act" means the Communications Act of 1934, as amended.
"Confidential Information" has the meaning specified in the
Confidentiality Agreement.
"Confidentiality Agreement" means, collectively, the confidentiality
agreement, dated as of November 30, 2001, between Winstar or its advisors and
the Buyer or its Affiliate.
"Creditors' Committee" means the official committee of unsecured
creditors appointed in connection with the Chapter 11 Cases on April 27, 2001.
"D&O Policies" means the directors' and officers' liability insurance
policies maintained by the Sellers and in effect as of the date hereof set forth
on Schedule 1.1(a)(i).
"Employee Records" means all existing personnel files related to
employees and former employees of the Sellers.
"Encumbrances" means any mortgages, pledges, liens, claims (as such
term is defined in the Bankruptcy Code), charges, security interests,
conditional and installment sale agreements, activity and use limitations,
conservation easements, deed restrictions, encumbrances and charges of any kind.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Agent" means Shearman & Sterling.
"Escrow Agreement" means the escrow agreement, dated as of the date
hereof, by and among Winstar, the Buyer and the Escrow Agent, substantially in
the form of Exhibit C.
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"Escrow Amount" means, as of any date of determination, the amount on
deposit, including any interest thereon, under the Escrow Agreement, without
reduction or offset for any fees or costs, which shall be borne by Sellers.
"Excess Inventory and Equipment" means such inventory, equipment and
other assets owned by the Sellers set forth on Schedule 1.1(a)(ii) which (x) has
been sold by the Sellers prior to the date hereof or (y) was under binding
contract dated prior to the date hereof to be sold and is subsequently sold
pursuant thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Subsidiaries" means the Subsidiaries of Winstar set forth on
Schedule 1.1(a)(iii).
"FCC" means the Federal Communications Commission (or any successor
Governmental Authority).
"FCC Consents" means the granting by the FCC of its consent to the
assignment of the FCC Licenses in connection with the consummation of the
transactions contemplated hereby.
"FCC Licenses" means all licenses, authorizations, permits and
construction permits issued by the FCC to the Sellers, including the Principal
FCC Licenses, which are related to the Business, all of which are set forth on
Schedule 1.1(a)(iv).
"FCC Rules" means the rules and regulations of the FCC, 47 Code of
Federal Regulations, Part 1 et seq.
"Final Order" means, (i) for purposes of the FCC Consents, an
administrative order issued by the FCC for which the deadline for lodging any
administrative appeal, reconsideration, stay or review by any objecting Person
has expired pursuant to the FCC Rules; and (ii) for purposes of the consents
required from all other Governmental Authorities (including, the State
Regulatory Consents), an action by any such Governmental Authority for which the
time period has expired for any further action by such Governmental Authority.
"Governmental Authority" means any federal, state or local governmental
or regulatory authority, department, agency, commission or body.
"Intellectual Property" means all of the following in any jurisdiction
throughout the world: (i) patents, patent applications and patent disclosures,
(ii) trademarks, service marks, trade dress, trade names, corporate names, logos
and Internet domain names, together with all goodwill associated with each of
the foregoing, (iii) copyrights and copyrightable works, (iv) registrations and
applications for any of the foregoing, (v) trade secrets, confidential
information and inventions and (vi) rights under any license agreements for any
of the foregoing.
"Knowledge" means, with respect to each Seller, as to a particular
matter, the actual knowledge of the acting chief executive officer, the chief
financial officer or the general counsel of Winstar.
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"Material Adverse Effect" means any change or changes in, or effect on,
the Business or the Purchased Assets, since the date hereof, that is
individually, or are in the aggregate, reasonably likely to be materially
adverse to the Business or the Purchased Assets, each taken as a whole, other
than (i) any change or effect in any way resulting from or arising in connection
with this Agreement or any of the transactions contemplated hereby (including
any announcement with respect to this Agreement or any of the transactions
contemplated hereby and the obtaining of any FCC Consents or State Regulatory
Consents) and (ii) any change in or effect on the Purchased Assets or the
Business which is cured (including by the payment of money) by the applicable
Seller or any of its Affiliates before the Termination Date.
"Permitted Encumbrances" means (i) zoning, entitlement, conservation
restriction and other land use and environmental regulations by Governmental
Authorities which do not materially interfere with the present use of the
Purchased Assets, (ii) all exceptions, restrictions, easements, charges,
rights-of-way and other Encumbrances set forth in any state, local or municipal
franchise under which the Business is conducted which do not materially
interfere with the present use of the Purchased Assets, and (iii) obligations
pursuant to the Communications Act of 1934, as amended 47 U.S.C. ss. 151 et
seq., and regulations promulgated thereunder.
"Person" means any individual, corporation, partnership, limited
partnership, limited liability company, syndicate, group, trust, association or
other organization or entity or government, political subdivision, agency or
instrumentality of a government.
"Post-petition Agent" means Citicorp USA, Inc.
"Pre-petition Agent" means The Bank of New York.
"Principal FCC Licenses" means all 38 and 28 GHZ spectrum licenses
issued by the FCC to the Sellers set forth on Schedule 1.1(a)(iv).
"Sale Hearing" means the date of the scheduled hearing of the
Bankruptcy Court during which the Bankruptcy Court considers the Sale Order.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Sellers' Representatives" means the Sellers' accountants, employees,
counsel, financial advisors and other authorized representatives.
"State Regulatory Consents" means any consents from state regulatory
authorities with respect to the assignment of the State Regulatory Licenses in
connection with the consummation of the transactions contemplated by this
Agreement.
"State Regulatory Licenses" means any licenses, authorizations or
permits issued by state regulatory authorities which are related to the Business
and listed on Schedule 1.1(a)(v).
"Subsidiary" means, with respect to any Person, any corporation or
other entity of which the outstanding securities or equity interests having
ordinary voting power to elect a majority of the board of directors or other
Persons performing similar functions of such Person are owned directly or
indirectly by such other Person.
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"Tax" and "Taxes" means (i) all taxes, charges, fees, levies, penalties
or other assessments of any kind whatsoever imposed by any federal, state, local
or foreign taxing authority, including, but not limited to, income, excise,
property, sales, transfer, franchise, payroll, withholding, social security or
other taxes, whether computed on a separate or consolidated, unitary or combined
basis or in any other manner, including any interest, penalties or additions
attributable thereto or (ii) liability for the payment of any amounts of the
type described in clause (i) above as a result of being party to any agreement
or any express or implied obligation to indemnify or otherwise succeed to the
liability of any other Person.
"Tax Return" means any return, report, information return or other
document (including any related or supporting information) required to be
supplied to any Governmental Authority with respect to Taxes.
"Transferred Employee" means each person who accepts the Buyer's offer
of employment.
"Winstar Building" means 000 Xxxxx Xxxxxx, in the Borough of Manhattan,
New York County, City and State of New York.
(b) Each of the terms set forth below shall have the meaning
ascribed thereto in the following section:
Definition Location
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"Agreement" Recitals
"Assumed Liabilities" ss. 2.3
"Buyer" Recitals
"Buyer Common Stock" ss. 3.1
"Buyer Financing" ss. 5.7
"Buyer Preferred Stock" ss. 3.1
"Buyer Shares" ss. 3.1
"Cash Payment" ss. 3.1
"Cash/Stock Payment" ss. 3.1
"Closing" ss. 4.1
"Closing Date" ss. 4.1
"Excluded Assets" ss. 2.2
"Excluded Liabilities" ss. 2.4
"Excluded Receivables" ss. 2.2(k)
"IDT Class B Stock" ss. 3.1
"IDT Shares" ss. 3.1
"Management Agreement" ss. 4.4
"Other Regulatory Approvals" ss. 6.6(e)
"Permits" ss. 2.1(f)
"Purchase Price" ss. 3.1
"Purchased Assets" ss. 2.1
"Purchased Investments" ss. 2.1(m)
"Sale Order" ss. 7.11
"Sellers" Recitals
"Termination Date" ss. 8.1(g)
"Topping Fee" ss. 6.10(d)
"Transfer Taxes" ss. 6.7(b)
"Transferable Permits" ss. 2.1(f)
"Winstar" Recitals
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Section 1.2 Construction. The terms "hereby," "hereto," "hereunder" and
any similar terms as used in this Agreement, refer to this Agreement in its
entirety and not only to the particular portion of this Agreement where the term
is used. The term "including" when used herein without the qualifier, "without
limitation," shall mean "including, without limitation." Wherever in this
Agreement the singular number is used, the same shall include the plural, and
the masculine gender shall include the feminine and neuter genders, and vice
versa, as the context shall require. The word, "or," shall not be construed to
be exclusive. Provisions shall apply, when appropriate, to successive events and
transactions.
ARTICLE II
PURCHASE AND SALE
Section 2.1 Purchase and Sale of Assets. Except for the Excluded
Assets, upon the terms and subject to the satisfaction of the conditions
contained in this Agreement, at the Closing, the Sellers shall sell, assign,
convey, transfer and deliver to the Buyer, and the Buyer shall, by payment of
the Purchase Price, purchase and acquire from the Sellers, free and clear of all
Encumbrances (except for Permitted Encumbrances), all of the rights, title and
interest that the Sellers possess as of the Closing and have the right to
transfer in, to and under the real, personal, tangible and intangible property
or assets of every kind and description, wherever located, used, developed for
use or intended for use in the conduct of the Business and related thereto and
all other assets of the Sellers unless specifically excluded in Section 2.2 and
subject to Section 4.4 (collectively, the "Purchased Assets"). Without limiting
the effect of the foregoing, the parties hereto acknowledge and agree that the
Purchased Assets shall include all rights, title and interest of the Sellers in,
to and under all of the following (except the Excluded Assets):
(a) all inventories of supplies, materials and spares, other than
the Excess Inventory and Equipment;
(b) all equipment (other than the Excess Inventory and Equipment);
(c) all machinery, vehicles, furniture and other tangible personal
property;
(d) all of the Sellers' Accounts Receivable as of the Closing
Date;
(e) the Assumed Agreements, in each case, to the extent the same
are assignable under Section 365 of the Bankruptcy Code or to the
extent consented to by the third party or third parties to such
agreements including any and all deposits and letters of credit related
to any such Assumed Agreements, and with respect to such Assumed
Agreements, all of Sellers' rights (including of recoupment), offsets,
counterclaims and defenses (including under Sections 105(a), 361, 362,
363, 365, 366, 502, 503(b), 554 and 558 of the Bankruptcy Code);
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(f) all permits, certificates, licenses (including the FCC
Licenses and the State Regulatory Licenses), franchises and other
governmental authorizations, consents and approvals held by the Sellers
except to the extent related exclusively to the Excluded Assets
(collectively, "Permits"), in each case, to the extent the same are
assignable (the "Transferable Permits");
(g) to the extent assignable under Section 365 of the Bankruptcy
Code or to the extent consented to by the third party or third parties
to such agreements, all confidentiality, noncompete or nondisclosure
agreements executed by vendors, suppliers or employees of the Sellers
or other third parties, in each case, to the extent related to the
Business;
(h) originals or copies of all employee records of the Sellers,
books, operating records, operating, safety and maintenance manuals,
engineering design plans, blueprints and as-built plans,
specifications, procedures and similar items of the Sellers to the
extent relating to the Purchased Assets, including books of account,
all customer lists, billing records and other customer correspondence
to the extent relating to the Business, all regulatory filings and
other books and records relating to the Business in the possession of
the Sellers;
(i) except as set forth on Schedule 2.2(d) and subject to Section
2.2(d), all of the rights, claims or causes of action of any of the
Sellers against a third party related to the Purchased Assets, the
operation of the Business or the Assumed Liabilities or Assumed
Agreements arising out of transactions occurring prior to the Closing
Date, except where such rights, claims or causes of action relate to
the Excluded Liabilities; to the extent such rights, claims or causes
of action relate to both Assumed Liabilities and Excluded Liabilities,
the Buyer and each Seller shall share such rights, claims or causes of
action in the same proportion as their respective liabilities bear to
the total liability relating to those rights, claims or causes of
action;
(j) all Intellectual Property owned by or licensed to the Sellers
together with all related income, royalties, damages and payments due
or payable at the Closing or thereafter (including damages and payments
for past or future infringements or misappropriations thereof), the
right to xxx and recover for past infringements or misappropriations
thereof, any and all corresponding rights that, now or hereafter, may
be secured throughout the world and all copies and tangible embodiments
of any such Intellectual Property;
(k) to the extent assignable under Section 365 of the Bankruptcy
Code or to the extent consented to by the insurance providers, the
rights of the Sellers under those insurance policies which primarily
cover risks covering the Business or the Purchased Assets, but
excluding the D&O Policies;
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(l) all historical information relating to accounts of the
customers of the Business which, at the Closing Date, are users of any
of the services provided by the Sellers in the operation of the
Business; and
(m) shares of stock, securities, bonds, debentures, evidences of
indebtedness or other interests issued by any third party (not
affiliated with any of the Sellers) and owned by any Seller primarily
for investment, excluding those set forth on Schedule 2.2(b) (the
"Purchased Investments").
Section 2.2 Excluded Assets. Notwithstanding any provision herein to
the contrary, the Sellers shall not sell, convey, assign, transfer or deliver to
the Buyer, and the Buyer shall not purchase, and the Purchased Assets shall not
include the Sellers' right, title and interest to the following assets of the
Sellers (the "Excluded Assets"):
(a) cash (including all cash residing in any collateral cash
account securing any obligation or contingent obligation of the Sellers
after giving effect to the Closing), cash equivalents and bank deposits
existing as of the Closing Date, subject to the Buyer's rights under
Section 2.1(e);
(b) any equity interests issued by the Sellers and their
Subsidiaries and those equity interests set forth on Schedule 2.2(b);
(c) rights to any Tax refunds of any of the Sellers, whether such
refund is received as a payment or as a credit against future Taxes and
any net operating losses of the Sellers;
(d) the Sellers' claims, causes of action, choses of action and
rights of recovery pursuant to Sections 544 through 550 and Section 553
of the Bankruptcy Code, any other avoidance actions under any other
applicable provisions of the Bankruptcy Code and the claims, causes of
action, choses of action and rights of recovery, including claims
relating to Lucent Technologies, Inc., set forth on Schedule 2.2(d);
(e) subject to Section 6.2(c), the corporate charter,
qualifications to conduct business as a foreign corporation,
arrangements with registered agents relating to foreign qualifications,
taxpayer and other identification numbers, seals, minute books, stock
transfer books, blank stock certificates, and other documents relating
to the organization, maintenance, and existence of each Seller as a
corporation or a limited liability company, as the case may be, any
books, records or the like of the Sellers;
(f) all of the assets set forth on Schedule 2.2(f);
(g) all of the agreements to which any of the Sellers is a party
which are not Assumed Agreements and any and all customer deposits,
customer advances and credits and security deposits related to any such
agreements which are not Assumed Agreements;
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(h) the rights of each Seller under this Agreement and any other
agreements between any of the Sellers and the Buyer relating to the
transactions contemplated hereby;
(i) all of the real, personal, tangible or intangible property
(including Intellectual Property) or assets owned by the Excluded
Subsidiaries except to the extent that such property or assets relate
to the Business;
(j) any and all prepaid workers compensation premiums (other than
the portion relating to the Transferred Employees);
(k) all accounts receivable, notes and other amounts receivable
relating to third parties, together with any interest or unpaid
financing charges accrued thereon and all proceeds thereof, set forth
on Schedule 2.2(k) (the "Excluded Receivables");
(l) claims against current or former directors, officers or other
employees of, or agents, accountants or other advisors of or to, any of
the Sellers;
(m) the rights of the Sellers under the terms of the $7,500,000
original principal amount subordinate note issued on October 3, 2001 by
Wam!Net Inc. and Wam!Net Government Services, Inc. to Winstar Wireless,
Inc. and any equity of Wam!Net Inc. held by the Sellers;
(n) the rights of the Sellers under the AON Sublease, subject to
Section 2.7; and
(o) the Excess Inventory and Equipment.
Section 2.3 Assumed Liabilities. On the Closing Date, the Buyer shall
assume and agree to pay, perform and discharge when due the following
liabilities and obligations of the Sellers (the "Assumed Liabilities"), in
accordance with the respective terms and subject to the respective conditions
thereof:
(a) all liabilities and obligations of any of the Sellers under
the Assumed Agreements (including all pre-petition and post-petition
cure amounts payable in order to effectuate the assumption and
assignment of each Assumed Agreement), subject to all of the Sellers'
rights (including of recoupment), offsets, counterclaims and defenses
(including under Sections 105(a), 361, 362, 363, 365, 366, 502, 503(b),
554 and 558 of the Bankruptcy Code), and the Transferable Permits in
accordance with the terms thereof;
(b) all liabilities and obligations relating to any customer
deposits and customer advances and credits, the security deposits and
the Sellers' rights under any letters of credit or similar instruments
securing customer deposits, advances or credits with respect to the
revenue from customer accounts, to the extent permissible under
applicable law, provided that the Buyer has received possession of and
rights to such security deposits, customer deposits, advances or
credits and letters of credit;
(c) all liabilities and obligations under the Management
Agreement; and
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(d) all liabilities and obligations related to the Purchased
Assets arising from any actions or omissions of the Buyer occurring
after the Closing Date or the Business arising from any actions or
omissions of the Buyer occurring after the Closing Date.
Section 2.4 Excluded Liabilities. The Buyer shall not assume or be
obligated to pay, perform or otherwise discharge any liabilities or obligations
of any of the Sellers other than the Assumed Liabilities (collectively, the
"Excluded Liabilities").
Section 2.5 Assumption of Certain Leases and Other Contracts. The
Sellers shall assume and assign to the Buyer, effective upon the Closing, the
Assumed Agreements on the following terms and conditions:
(a) From and after the Closing Date until 120 days thereafter, the
applicable Sellers shall assume and such Sellers shall assign to the
Buyer the Assumed Agreements pursuant to Section 365 of the Bankruptcy
Code. The Assumed Agreements are listed on Exhibit A hereto, as amended
from time to time pursuant to this Section 2.5(a), and are identified
by the date of the Assumed Agreement (if available), the other party or
parties to the Assumed Agreement and the address of such party or
parties (if available), as the case may be. From and after the date
hereof until 120 days following the Closing Date, the Buyer shall have
the right, in its sole discretion, to make additions and deletions to
the list of Assumed Agreements by delivering a marked copy of such list
to Sellers, and such changes shall be effective immediately upon
receipt by Sellers. The Sellers shall give prompt notice of such
addition or deletion to the counter-party to such agreement, and to the
respective counsels to the Pre-petition Agent, the Post-petition Agent
and the Creditors' Committee.
(b) If there exists any default related to an Assumed Agreement
which is required to be cured as a condition to the Sellers' assumption
and assignment pursuant to Section 365(a) of the Bankruptcy Code, the
Buyer shall promptly cure any such default (including, paying any and
all such amounts, whether arising pre-petition or post-petition, to
effect such cure pursuant to Section 365(a) of the Bankruptcy Code) as
a condition to the assumption and assignment of such Assumed Agreement.
From time to time after the Closing, the Buyer shall provide funds to
the Sellers or directly to the counter-party thereto (by wire transfer
of immediately-available U.S. funds) in an amount sufficient to pay all
such cure amounts required by the Bankruptcy Court, unless otherwise
agreed by such counter-party, as a condition for assumption and
assignment of the Assumed Agreements. Immediately upon receipt by the
Sellers of such funds, the Sellers shall hold such funds in trust for
such counter-party, and shall pay all cure amounts for such Assumed
Agreements. The Buyer alone shall be liable for payment of any cure
payment in respect of any Assumed Agreement. From and after the Closing
Date, the Buyer shall designate the contracts and other agreements of
Sellers that it desires Sellers to reject and Sellers shall promptly
make appropriate motions with the Bankruptcy Court and take all other
action to reject all such designated contracts and other agreements. In
the case of non-residential real property leases, such notice shall be
irrevocable and accompanied by delivery of all keys to the subject
premises in the Buyer's possession.
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(c) The Buyer shall be responsible for demonstrating and providing
adequate assurance of future performance and any and all costs and
expenses necessary in connection therewith regarding any of the Assumed
Agreements under Section 365 of the Bankruptcy Code.
Section 2.6 Intercompany Receivables. All intercompany receivables owed
by and between the Sellers shall be cancelled on the Closing Date.
Section 2.7 Winstar Building. The Buyer shall, at its option, be
entitled to enter into a sublease following the Closing Date, with rent to be
set at prevailing market rates in the building and otherwise on terms reasonably
satisfactory to the Sellers, with the Sellers to occupy the office space in the
Winstar Building to which the Sellers have occupancy rights under the terms of
the AON Sublease (the thirty-first floor until January 31, 2002, the non-hub
portion of the tenth floor until March 31, 2002, and the hub portion of the
tenth floor until April 30, 2002). After the expiration of such term with
respect to the hub portion of the tenth floor, the Buyer shall, at its option,
be entitled to enter into an agreement with the Sellers to occupy such portion
of the tenth floor of the Winstar Building (to the extent of such Sellers'
occupancy rights) through the duration of the AON Sublease, and if the Buyer
shall exercise such option, the Buyer shall pay rent at the prevailing market
rate in the building for such space which rent shall be paid upon exercise of
the option in a lump-sum payment based on the present value of such rent.
ARTICLE III
PURCHASE PRICE
Section 3.1 Purchase Price. In consideration for the Purchased Assets,
and subject to the terms and conditions of this Agreement, Buyer shall assume
the Assumed Liabilities, and on the Closing Date, shall irrevocably (i) pay, at
Sellers' election (which shall be exercised before the Closing Date), either (x)
an amount in cash equal to $38,000,000 (the "Cash Payment") or (y) an amount in
cash equal to $30,000,000 and cause to be issued to the Sellers a number of
shares of Class B common stock, $0.01 par value per share, of IDT Corporation
(the "IDT Class B Stock") having a value equal to $12,500,000 based on the
average closing price of IDT Class B Stock during the seven trading day period
ended December 14, 2001 (the "IDT Shares" and together with the $30,000,000, the
"Cash/Stock Payment"), and (ii) issue to the Sellers such number of shares of
common stock, $0.01 par value per share, of the Buyer (the "Buyer Common
Stock"), representing 5% of the outstanding shares of Buyer Common Stock as of
the date hereof (the "Buyer Shares" and together with either the Cash Payment or
the Cash/Stock Payment, as applicable, the "Purchase Price"). It is understood
and agreed that the Buyer shall issue to IDT Corporation or its designee shares
representing the remaining 95% of the Buyer Common Stock and preferred stock,
$0.01 par value per share, of the Buyer (the "Buyer Preferred Stock") which
Buyer Preferred Stock grants to the holders thereof the right to recovery of
amounts invested in the Buyer by its affiliates prior to any right of the Buyer
or Sellers to receive amounts on account of the Buyer Common Stock (but having
no other preferential rights or voting rights).
It is understood and agreed that the IDT Shares delivered at Closing
shall not be registered in accordance with the Securities Act and shall be
"restricted" as a result thereof. IDT Corporation shall use its commercially
reasonable efforts to cause a registration statement to become effective with
respect to such IDT Shares within 60 days following the Closing Date. In the
event that the IDT Shares are not duly registered within 60 days following the
Closing Date, any holder thereof may require at any time within 30 days
thereafter that IDT Corporation repurchase all or a portion of the IDT Shares
held by it for cash consideration equal to a price per share of $10,000,000
divided by the number of IDT shares issued as part of the Purchase Price.
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Section 3.2 Cash Payment at Signing. Pursuant to the Escrow Agreement,
on or before the date hereof, the Buyer shall deliver, or shall have delivered,
the Cash Payment to the Escrow Agent to be held in escrow pending the Closing.
On the Closing Date, the Sellers and the Buyer shall instruct the Escrow Agent
to promptly release the Escrow Amount in accordance with the terms of the Escrow
Agreement.
Section 3.3 Allocation of Purchase Price. Prior to the Closing, the
Buyer and the Sellers shall use their reasonable best efforts to agree as to the
allocation of the Purchase Price pursuant to Section 1060 of the Code and the
rules and regulations thereunder. The Buyer and the Sellers agree to use such
allocation in filing all required forms under Section 1060 of the Code and all
other Tax Returns, and the Buyer and the Sellers further agree that they shall
not take any position inconsistent with such allocation on any examination of
any such Tax Return, in any refund claim or in any Tax litigation. The Buyer
acknowledges that, based upon the manner it valued the Purchased Assets, the
substantial portion of the Purchase Price is, to the extent permitted by
applicable Tax laws and rules, allocated to Accounts Receivable. Upon the
request of the other, the Buyer and the Sellers agree to provide the other
information reasonably necessary to complete Form 8594. Not later than thirty
(30) days prior to the filing of their respective Forms 8594 relating to this
transaction, each party shall deliver to the other party a copy of its Form
8594. In the event of a dispute with respect to any part of the allocation of
the Purchase Price, the Buyer and the Sellers shall attempt to reconcile their
differences and any resolution by them as to any disputed allocation shall be
final, binding and conclusive on the parties. If the Buyer and the Sellers are
unable to reach a resolution on such differences within thirty (30) days after
the date any such dispute arises, the Buyer and the Sellers shall submit the
disputed allocations for determination and resolution to the Bankruptcy Court,
which shall be instructed to determine and report to the parties, upon such
disputed allocations, and such report shall be final, binding and conclusive on
the parties hereto with respect to the disputed allocations.
ARTICLE IV
THE CLOSING AND LICENSE TRANSFER
Section 4.1 Time and Place of Closing. Upon the terms and subject to
the satisfaction of the conditions contained in Article VII of this Agreement,
the closing of the sale of the Purchased Assets and the assumption of the
Assumed Liabilities and Assumed Agreements contemplated by this Agreement (the
"Closing") shall take place at the offices of Shearman & Sterling, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 A.M. (local time) no later than the second
(2nd) Business Day following the date on which the conditions set forth in
Article VII have been satisfied (other than the conditions with respect to
actions the respective parties hereto will take at the Closing itself) or, to
the extent permitted, waived in writing, or at such other place or time as the
Buyer and Winstar (on behalf of the Sellers) may mutually agree. The date and
time at which the Closing actually occurs is hereinafter referred to as the
"Closing Date."
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Section 4.2 Deliveries by the Sellers. At or prior to the Closing, the
Sellers shall deliver to the Buyer the Xxxx of Sale, duly executed by the
Sellers for the personal property included in the Purchased Assets.
Section 4.3 Deliveries by the Buyer. At or prior to the Closing, the
Buyer shall deliver the following to Winstar (on behalf of the Sellers) or the
Escrow Agent, as the case may be:
(a) the Purchase Price;
(b) copies of the Certificate of Incorporation and the Bylaws of
the Buyer, each as in effect as of the Closing; and
(c) copies of the resolutions duly adopted by the Buyer's board of
directors authorizing the execution, delivery and performance of this
Agreement and each of the other transactions contemplated hereby.
Section 4.4 Management Transition. The Sellers and the Buyer shall
enter into a management agreement substantially in the form of Exhibit D (the
"Management Agreement") on the date hereof. Pursuant to the Management
Agreement, the Buyer shall agree to fund the continued operations of the
Business as set forth in the Management Agreement and shall act as manager of
the operations in each state or jurisdiction for which a FCC Consent or State
Regulatory Consent has not been obtained on behalf of Winstar and at the
direction of Winstar and consistent with all applicable laws and regulations. At
such time as any State Regulatory Consent and any FCC Consent shall have become
Final Orders, the corresponding State Regulatory License and FCC License shall
be promptly transferred in a manner reasonably requested by the Buyer.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE BUYER
As an inducement to the Sellers to enter this Agreement and to
consummate the transactions contemplated hereby, the Buyer represents and
warrants to the Sellers as follows:
Section 5.1 Organization. The Buyer is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite corporate power and authority to own, lease and operate
its properties and to carry on its business as is now being conducted.
Section 5.2 Authority Relative to this Agreement. The Buyer has full
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by the board of directors of the Buyer and no
other corporate proceedings on the part of the Buyer are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by the Buyer, and
assuming that this Agreement constitutes a valid and binding agreement of the
Sellers, constitutes a valid and binding agreement of the Buyer, enforceable
against the Buyer in accordance with its terms, except that such enforceability
may be limited by applicable bankruptcy, insolvency, moratorium or other similar
laws affecting or relating to enforcement of creditors' rights generally or
general principles of equity.
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Section 5.3 Consents and Approvals; No Violation. Subject to the entry
of the Sale Order, the receipt of the FCC Consents, the receipt of the State
Regulatory Consents and receipt of the Other Regulatory Approvals which may be
required, neither the execution and delivery of this Agreement by the Buyer nor
the purchase by the Buyer of the Purchased Assets and the assumption by the
Buyer of the Assumed Liabilities and Assumed Agreements pursuant to this
Agreement will (a) conflict with or result in any breach of any provision of the
Certificate of Incorporation or Bylaws (or other similar governing documents) of
the Buyer or (b) require any consent, approval, authorization or permit of, or
filing with or notification to, any Governmental Authority which has not been
otherwise obtained or made (other than any filings required by the Securities
Act, the Exchange Act or the rules of the New York Stock Exchange).
Section 5.4 Qualifications to Hold Permits. The Buyer is aware of no
financial or other bases on which it would be reasonably be expected to be
deemed not qualified to hold the FCC Licenses, the State Regulatory Licenses or
any of the other Permits, including any foreign ownership that would disqualify
or limit its ability to control the FCC Licenses and State Regulatory Licenses.
Other than revocations for failure to pay fees or make required filings (all of
which have been remedied prior to the date hereof), neither the Buyer nor any of
its Affiliates has had any material permit, certificate, license, franchise or
other government authorization, consent or approval revoked or rescinded or has
been subject to any material proceeding or investigation by the FCC or any
comparable state regulatory agency with respect to any of its or its Affiliates'
operations.
Section 5.5 Legal Proceedings and Judgments. There are no material
claims, actions, proceedings or investigations pending or, to the knowledge of
the Buyer, threatened against or relating to the Buyer before any court or other
Governmental Authority acting in an adjudicative capacity which could reasonably
be expected to materially adversely affect the Buyer's ability to consummate the
transactions contemplated hereby.
Section 5.6 Brokers. No Person is entitled to any brokerage, financial
advisory, finder's or similar fee or commission payable by the Buyer or any of
its Affiliates in connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of the Buyer.
Section 5.7 Buyer Financing. As of the date hereof and as of the
Closing Date, the Buyer has and will have funds available to it sufficient to
(i) operate the Business pursuant to the terms of the Management Agreement, (ii)
deliver the Purchase Price at the Closing, and (iii) pay all of its fees and
expenses incurred in connection with the transactions contemplated hereby,
including all cure payments that are required to be paid in respect of Assumed
Agreements (the "Buyer Financing").
Section 5.8 Capitalization. The authorized capital stock of the Buyer
shall consist of 10,000 shares of Buyer Common Stock and 500,000 shares of Buyer
Preferred Stock, of which 950 shares of Buyer Common Stock and 68,000 shares of
Buyer Preferred Stock shall be issued and outstanding immediately prior to the
Closing. All such issued and outstanding shares of Buyer Common Stock and Buyer
Preferred Stock have been duly authorized and validly issued, are fully paid and
nonassessable, and have been issued in accordance with all applicable laws. The
Buyer has reserved an aggregate of 50 shares of Buyer Common Stock for issuance
hereunder.
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Section 5.9 Valid Issuance of IDT and Buyer Shares. The IDT Shares and
the Buyer Shares, when issued and delivered hereunder will be duly and validly
issued, fully paid, and nonassessable, with no personal liability attaching to
ownership thereof, free of Encumbrances created by the Buyer or IDT Corporation
and not subject to preemptive or similar rights of the shareholders of the Buyer
and will be free of restrictions on transfer other than under applicable state
and federal securities laws.
Section 5.10 Disclaimer of Other Representations and Warranties. The
Buyer hereby acknowledges and agrees that the Buyer is purchasing the Purchased
Assets on an "as-is, where-is" basis and that the Sellers make no representation
or warranty whatsoever and none shall be implied at law or in equity.
ARTICLE VI
COVENANTS OF THE PARTIES
Section 6.1 Conduct of Business. (a) Except as required (other than
pursuant to a request, application or motion by any Seller) by the Bankruptcy
Court and the Bankruptcy Code, during the period commencing on the date of this
Agreement and ending on the Closing Date, the Sellers shall (i) operate the
Business in the usual, regular and ordinary course as conducted during the 30
days prior to December 17, 2001 (ii) other than as permitted in writing by the
Buyer, use their reasonable efforts to preserve in all material respects the
Business, its employees and its operations, and (iii) refrain from executing any
material contract other than in the ordinary course as conducted during the 30
days prior to December 17, 2001.
(b) Prior to the Closing Date, without the prior written consent
of the Buyer, no Seller shall terminate, extend or otherwise amend any of the
FCC Licenses or State Regulatory Licenses, other than in the ordinary course of
business. Prior to the Closing Date, without the prior written consent of the
Buyer, no Seller shall sell, lease (as lessor), transfer or otherwise dispose
of, any of the Purchased Assets.
(c) Prior to the termination of the Management Agreement, the
Buyer shall take no action or actions which would constitute the exercise of
control over the FCC Licenses or with respect to State Regulatory Licenses
managed under the Management Agreement in violation of applicable law; provided
that performance under the Management Agreement shall not be deemed a breach of
this Section 6.1(c).
Section 6.2 Access to Information; Maintenance of Records. (a) Between
the date of this Agreement and the Closing Date, each Seller shall, during
ordinary business hours, upon reasonable notice (i) give the Buyer and the Buyer
Representatives reasonable access to all books, records, plants, offices and
other facilities and properties constituting the Purchased Assets to which the
Buyer is not denied access by law, (ii) permit the Buyer to make such reasonable
inspections thereof as the Buyer may reasonably request, (iii) furnish the Buyer
with such financial and operating data and other information with respect to the
Business as the Buyer may from time to time reasonably request, (iv) furnish the
Buyer a copy of each material report, schedule or other document filed or
received by such Seller with respect to the Business with the SEC and other
Governmental Authorities; provided, however, that (A) any such access shall be
conducted in such a manner so as not to interfere unreasonably with the
operation of the Business, (B) such Seller shall not be required to take any
action which would constitute a waiver of the attorney-client privilege and (C)
such Seller need not supply the Buyer with any information which such Seller is
under a legal obligation not to supply. Notwithstanding anything in this Section
6.2(a) to the contrary, the Buyer shall not have access to any of the Employee
Records and personnel and medical records, which in such Seller's good faith
judgment is sensitive or the disclosure of which could subject such Seller to
any material risk of substantial liability.
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(b) The Buyer and the Sellers acknowledge that they are subject to
the Confidentiality Agreement. All information furnished to or obtained by the
Buyer or any of the Buyer Representatives or the Sellers or any of the Sellers'
Representatives pursuant to this Agreement shall be subject to the provisions of
the Confidentiality Agreement and shall be treated as Confidential Information
for all purposes of the Confidentiality Agreement. Furthermore, the Buyer
acknowledges that the Sellers or any of the Sellers' Representatives may furnish
Confidential Information to counsel for the Creditors' Committee and to the
Pre-petition Agent and the Post-petition Agent and their respective counsel,
subject to the provisions of the Confidentiality Agreement. The terms of the
Confidentiality Agreement shall cease to apply to the parties thereto after the
Closing Date.
(c) For a period of the later of (x) three (3) years (subject to
Section 6.7(a)) after the Closing Date and (y) the date of entry of an order of
the Bankruptcy Court closing the Chapter 11 Cases, or if converted to a case
under Chapter 7 of the Bankruptcy Code, an order of the Bankruptcy Court closing
such case, each party and its representatives shall have reasonable access to
all of the books and records relating to the Business or the Purchased Assets,
including all information pertaining to the Assumed Agreements, all Employee
Records or other personnel and medical records required by law, legal process or
subpoena, in the possession of the other party to the extent that such access
may reasonably be required by such party in connection with the Assumed
Liabilities or the Excluded Liabilities, or other matters relating to or
affected by the operation of the Business and the Purchased Assets. Such access
shall be afforded by the party in possession of such books and records upon
receipt of reasonable advance notice and during normal business hours; provided,
however, that (i) any such access shall be conducted in such a manner as not to
interfere unreasonably with the operation of the business of any party or its
Affiliates, (ii) no party shall be required to take any action which would
constitute a waiver of the attorney-client privilege, and (iii) no party need
supply the other party with any information which such party is under a legal
obligation not to supply. The party exercising this right of access shall be
solely responsible for any costs or expenses incurred by it pursuant to this
Section 6.2(c). If the party in possession of such books and records shall
desire to dispose of any such books and records upon or prior to the expiration
of such period, such party shall, prior to such disposition, give the other
party a reasonable opportunity at such other party's expense, to segregate and
remove such books and records as such other party may select. Furthermore, the
Buyer acknowledges that Winstar shall have reasonable access (as set forth
above) to all Transferred Employees with respect to the litigation matters set
forth on Schedule 2.2(d) for so long as such matters are pending. In addition to
the foregoing, the Buyer agrees to maintain the Employee Records in its
possession for a period of three (3) years after the Closing Date and to give
former and current employees of the Sellers reasonable access to such Employee
Records during such period.
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Section 6.3 Expenses. Except to the extent specifically provided herein
or in the Sale Order or the Management Agreement, whether or not the
transactions contemplated hereby are consummated, all costs and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be borne by the party incurring such costs and expenses.
Section 6.4 Further Assurances. (a) Subject to the terms and conditions
of this Agreement, each of the parties hereto shall use reasonable best efforts
(subject, in the case of the Sellers or any Chapter 7 trustee, to available
funding and without being required to make any payment to any third party or to
incur any significant economic burden) to take, or cause to be taken, all
action, and to do, or cause to be done, all things reasonably necessary, proper
or advisable under applicable laws and regulations to consummate and make
effective the sale of the Purchased Assets in accordance with this Agreement,
including using reasonable best efforts to ensure timely satisfaction of the
conditions precedent to each party's obligations hereunder. Neither any of the
Sellers, on the one hand, nor the Buyer, on the other hand, shall, without the
prior written consent of the other party (it being understood that the written
consent of Winstar shall have the same effect as the consent of all of the
Sellers), take any action which would reasonably be expected to prevent or
materially impede, interfere with or delay the transactions contemplated by this
Agreement. From time to time on or after the Closing Date, each Seller shall, at
its own expense, execute and deliver such documents to the Buyer as the Buyer
may reasonably request in order to more effectively vest in the Buyer such
Seller's title to the Purchased Assets subject to Permitted Encumbrances. From
time to time after the date hereof, the Buyer shall, at its own expense, execute
and deliver such documents to each Seller as such Seller may reasonably request
in order to more effectively consummate the sale of the Purchased Assets and the
assumption and assignment of the Assumed Liabilities and the Assumed Agreements
in accordance with this Agreement.
(b) In the event that any Purchased Asset shall not have been
conveyed to the Buyer at the Closing, the applicable Seller shall, subject to
Section 6.4(c), use reasonable best efforts to convey such asset to the Buyer as
promptly as is practicable after the Closing.
(c) To the extent that any of the Sellers' rights under any
Assumed Agreement may not be assigned without the consent of another Person
which consent has not been obtained, this Agreement shall not constitute an
agreement to assign the same if an attempted assignment would constitute a
breach thereof or be unlawful and such Seller shall cooperate (without being
required to make any payment to any third party or to incur any significant
economic burden) to obtain any such required consent(s) as promptly as
reasonably possible unless failure to obtain such consent would not,
individually or in the aggregate, have a Material Adverse Effect, and the Buyer
agrees to fully cooperate with such Seller in its efforts to obtain any such
consent (including the submission of such financial or other information
concerning the Buyer and the execution of any assumption agreements or similar
documents reasonably requested by a third party) without being required to make
any payment to any third party or to incur any economic burden.
Section 6.5 Public Statements. Winstar and the Buyer shall consult with
each other prior to issuing any public announcement, statement or other
disclosure with respect to this Agreement or the transactions contemplated
hereby, except that the parties may make disclosures with respect to this
Agreement and the transactions contemplated hereby to the extent and under the
circumstances in which the parties are expressly permitted by the
Confidentiality Agreement to make disclosures of Confidential Information or
otherwise required by law or New York Stock Exchange regulations.
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Section 6.6 Governmental Authority Consents and Approvals. (a) FCC
Consents. Subject to Section 6.6(d), within thirty (30) days after the entry of
the Sale Order, the Buyer shall prepare and file, or cause to be prepared and
filed, the necessary application or applications with the FCC seeking the FCC
Consents and thereafter, shall promptly make all other filings and notifications
and promptly seek all such consents, licenses, approvals, permits, waivers,
orders or authorizations as may be required to obtain the FCC Consents. The
Sellers shall cooperate with the Buyer to the fullest extent reasonably possible
to provide all necessary information for the preparation of such applications
within ten (10) Business Days after entry of the Sale Order, including those
portions of such applications which are required to be completed by the Sellers.
The Sellers and the Buyer shall prosecute such applications with all reasonable
diligence and otherwise use their reasonable best efforts (including, with
respect to Buyer, providing financial assurance to the extent required) to
obtain grants of approval as expeditiously as practicable. The Buyer shall bear
all reasonable fees payable by the Buyer and/or the Sellers to the FCC and to
any outside counsel employed by the Sellers or Buyer in connection with the
preparation and filing of the applications for the FCC Consents.
(b) State Regulatory Consents. Subject to Section 6.6(e), within
thirty (30) days after the entry of the Sale Order, the Sellers and/or the
Buyer, as applicable, shall each file or cause to be filed with any state or
local regulatory authorities analogous to the FCC applications for the approval
of the assignment of the State Regulatory Licenses. The Sellers and the Buyer
shall prosecute such applications with all reasonable diligence and otherwise
use their reasonable best efforts (including, with respect to Buyer, providing
financial assurance to the extent required) to obtain grants of approval as
expeditiously as practicable. The Buyer shall bear all reasonable fees payable
by the Buyer and/or the Sellers to the state and local regulatory entities and
to any outside counsel employed by the Sellers or Buyer in connection with the
preparation and filing of the applications for the State Regulatory Consents.
(c) Other Governmental Authority Approvals. The Sellers and the
Buyer shall each use their reasonable best efforts to cooperate with each other
in determining any filings, notifications and requests for approval (other than
the FCC Consents and the State Regulatory Consents) required to be made and
received prior to the Closing under applicable law or regulation (collectively,
the "Other Regulatory Approvals"). In connection with any Other Regulatory
Approvals, neither the Buyer nor any of the Sellers will, and each of them will
use its reasonable best efforts not to, cause or permit any of its officers,
directors, partners or other Affiliates to, take any action which could
reasonably be expected to materially and adversely affect the submission of any
required filings or notifications or the grant of any such approvals.
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(d) Cooperation. The Sellers and the Buyer (i) shall promptly
inform each other of any communication from any Governmental Authority
concerning this Agreement, the transactions contemplated hereby, and any filing,
notification or request for approval and (ii) shall permit the other party to
review in advance any proposed written communication or information submitted to
any such Governmental Authority in response thereto. In addition, each of the
Sellers and the Buyer shall not agree to participate in any meeting with any
Governmental Authority in respect of any filings, investigation or other inquiry
with respect to this Agreement, the transactions contemplated hereby or any such
filing, notification or request for approval unless it consults with the other
party in advance and, to the extent permitted by any such Governmental
Authority, gives the other party the opportunity to attend and participate
thereat, in each case to the maximum extent practicable. Subject to any
restrictions under applicable laws, rules or regulations, each of the Sellers
and the Buyer shall furnish the other party with copies of all correspondence,
filings and communications (and memoranda setting forth the substance thereof)
between it and its Affiliates and their respective representatives on the one
hand, and the Governmental Authority or members of its staff on the other hand,
with respect to this Agreement, the transactions contemplated hereby (excluding
documents and communications which are subject to preexisting confidentiality
agreements and to the attorney-client privilege or work product doctrine) or any
such filing, notification or request for approval. The Sellers and the Buyer
shall also furnish the other party with such necessary information and
assistance as such other party and its Affiliates may reasonably request in
connection with their preparation of necessary filings, registration, or
submissions of information to the Governmental Authority in connection with this
Agreement, the transactions contemplated hereby and any such filing,
notification or request for approval. The Sellers and the Buyer shall prosecute
all required requests for approval with all necessary diligence and otherwise
use their respective reasonable best efforts to obtain the grant thereof by a
Final Order as soon as possible.
Section 6.7 Tax Matters. (a) Cooperation on Tax Matters. The Buyer and
the Sellers agree to furnish or cause to be furnished to each other, upon
request, as promptly as practicable, such information and assistance relating to
the Business and the Purchased Assets (including access to books and records) as
is reasonably necessary for the preparation and filing of all Tax Returns in
connection with matters relating to or affected by the operations of the Sellers
prior to the Closing, including the making of any election relating to Taxes,
the preparation for any audit by any taxing authority, and the prosecution or
defense of any claim, suit or proceeding relating to any Tax. Notwithstanding
anything to the contrary herein, the Buyer and the Sellers shall retain all
books and records with respect to Taxes pertaining to the Purchased Assets for a
period of at least six (6) years following the Closing Date. At the end of such
period, each party shall provide the other with at least thirty (30) days prior
written notice before destroying any such books and records, during which period
the party receiving such notice can elect to take possession, at its own
expense, of such books and records. The Sellers and the Buyer shall cooperate
with each other in the conduct of any audit or other proceeding relating to
Taxes involving the Purchased Assets or the Business.
(b) Transfer Taxes. All excise, sales, use, transfer, value added,
registration, stamp, recording, documentary, conveyancing, franchise, property,
transfer, gains and similar Taxes, levies, charges and recording, filing and
other fees (collectively, "Transfer Taxes") incurred in connection with the
transactions contemplated by this Agreement shall be paid by the Sellers. The
Sellers shall, at their own expense, timely pay and file all necessary Tax
returns and other documentation with respect to all such Transfer Taxes and, if
required by applicable law, the Buyer shall join in the execution of any Tax
Returns and other documentation at the Sellers' request. Notwithstanding the
foregoing, the Sellers shall seek in the Sale Order a decretal paragraph which
provides that, in accordance with Section 1146(c) of the Bankruptcy Code, the
transactions contemplated hereby are steps in the formulation, or anticipation
of the formulation, of a Chapter 11 plan for the Sellers and, as such, the
making or delivery of any instrument of transfer to effectuate the transactions
contemplated hereby shall not be taxed under any law imposing a stamp tax or
similar tax.
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Section 6.8 Litigation Support. In the event and for so long as any
party is actively contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection with
(a) any transaction contemplated under this Agreement or (b) any fact,
situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or transaction on or prior
to the Closing Date involving the Sellers, the other party will cooperate with
the contesting or defending party and its counsel in the contest or defense,
make available its personnel, and provide such testimony and access to its books
and records as shall be reasonably necessary in connection with the contest or
defense, all at the sole cost and expense of the contesting or defending party.
In the event that the Sale Order is the subject of an appeal, the Buyer and the
Sellers agree to use reasonable best efforts to seek an expedited review and
decision of such appeal and to seek the dissolution of any stay which might be
entered in connection with such an appeal; provided that each party shall bear
the cost of complying with this provision.
Section 6.9 Notification. The Sellers shall notify the Buyer and keep
it advised of the occurrence, to the Knowledge of the Sellers, of (a) notice of
any litigation or administrative proceeding commenced of threatened in writing
against any Seller which could, if adversely determined, have a Material Adverse
Effect (other than any such action commenced in the Bankruptcy Court) and (b)
any material damage or destruction of any of the Purchased Assets. The Buyer
shall notify the Sellers prior to the Closing Date and keep them advised of the
occurrences of any event or occurrence which could reasonably be expected to
materially adversely affect the Buyer's ability to consummate the transactions
contemplated hereby.
Section 6.10 Submission for Bankruptcy Court Approval. (a) In
connection with the transactions contemplated by this Agreement, the Sellers
shall, within one (1) Business Day of the date hereof, file with the Bankruptcy
Court a form of order or orders pursuant to Sections 105, 363, 365 and other
applicable provisions of the Bankruptcy Code (A) authorizing and approving the
sale to the Buyer pursuant to this Agreement of the Purchased Assets, and
approving the terms of this Agreement, (B) finding the Buyer is acting in good
faith, and is entitled to the protections of a Buyer under Section 363(m) of the
Bankruptcy Code and (C) containing such other findings and provisions as may be
reasonably requested by the Buyer (including a finding that notice of the
transactions contemplated by this Agreement, including notice to all parties to
the Assumed Agreements, has been properly given) in the form and substance of
Exhibit E or otherwise in form and substance acceptable to the Buyer in its sole
discretion (the "Sale Order").
(b) The Sellers and the Buyer shall each use their reasonable best
efforts, and shall cooperate, assist and consult with each other, to secure the
Bankruptcy Court's approval of (i) the Sale Order no later than one (1) Business
Day after the date of this Agreement and (ii) any other order of the Bankruptcy
Court relating to this Agreement or the transactions contemplated hereby, within
five (5) days following the date of filing of the motion for approval thereof.
The Sellers and the Buyer shall consult with, and seek the advice of, one
another regarding pleadings which any of them intend to file, or positions any
of them intend to take, with the Bankruptcy Court in connection with or which
might reasonably affect, the Bankruptcy Court's approval of the Sale Order. None
of Sellers or the Buyer will file any pleading or take any position that is
inconsistent with obtaining the Bankruptcy Court's approval of the Sale Order or
any other such order. The Sellers shall promptly (and, in any event, within one
(1) Business Day after the receipt of any written request) provide the Buyer and
its counsel with copies of all notices, filings and orders of the Bankruptcy
Court (and other courts) pertaining to the motion for approval of the Sale Order
or any other order relating to any of the transactions contemplated by this
Agreement.
20
(c) If the Sale Order or any other orders of the Bankruptcy Court
relating to this Agreement or the transactions contemplated hereby shall be
appealed by any Person (or if any petition for certiorari or motion for
reconsideration, amendment, clarification, modification, vacation, stay,
rehearing or reargument shall be filed with respect to the Sale Order or other
such order), the Sellers and the Buyer will cooperate in taking such steps
diligently to prosecute such appeal, petition or motion and each of the Seller
and the Buyer shall use its reasonable efforts to obtain an expedited resolution
of any such appeal, petition or motion.
(d) As a condition to Buyer's obligations hereunder, Sellers have
agreed to pay to Buyer an amount equal to 2.5% of the Cash Payment (the "Topping
Fee") if (i) this Agreement is terminated (other than as a result of a default
by the Buyer in the performance of its obligations hereunder), (ii) the Sellers
shall enter into one or more sale transactions and (iii) such transaction or
transactions shall be consummated and shall close. The Topping Fee shall be paid
when the Sellers receive all of the purchase prices from the other buyers (it
being understood that placing funds in escrow shall not constitute receipt by
the Sellers until such funds are released to the Sellers).
Section 6.11 D&O Policies. The Sellers shall maintain in effect the D&O
Policies for the benefit of the Sellers' respective current and former directors
and officers until such time as the D&O Policies expire in accordance with their
terms.
Section 6.12 Use of Winstar Name. The Sellers agree that no later than
60 days after the Closing Date, the Sellers (i) shall cause the names of Winstar
and its Subsidiaries which currently utilize the name "Winstar" to be changed to
a name that does not include the name "Winstar" or contain any references
thereto and (ii) shall, and shall cause their Affiliates, not to advertise or
hold themselves out as Winstar or an Affiliate thereof. It is expressly
understood and agreed by and between the parties that this covenant shall
survive the Closing and that Buyer shall have all rights and remedies available
at law or in equity to ensure strict compliance with this covenant by the
Sellers, or their current or former Affiliates.
ARTICLE VII
CONDITIONS TO CLOSING
Section 7.1 Conditions to Each Party's Obligations to Effect the
Closing. The respective obligations of each party to effect the sale and
purchase of the Purchased Assets shall be subject to the fulfillment at or prior
to the Closing Date of the following conditions:
(a) no preliminary or permanent injunction or other order or
decree by any federal or state court which prevents the consummation of
the sale of a material part of the Purchased Assets contemplated hereby
shall have been issued and remain in effect (each party agreeing to use
its reasonable efforts to have any such injunction, order or decree
lifted) and no statute, rule or regulation shall have been enacted by
any Governmental Authority which prohibits the consummation of the sale
of the Purchased Assets; and
21
(b) the Bankruptcy Court shall have entered the Sale Order and the
Sale Order shall be in full force and effect and shall not have been
stayed, modified, reversed or amended (except, if modified or amended
with the written consent of the Sellers and the Buyer).
Section 7.2 Conditions to Obligations of the Buyer. The obligation of
the Buyer to effect the purchase of the Purchased Assets contemplated by this
Agreement shall be subject to the fulfillment at or prior to the Closing Date of
the following additional conditions:
(a) the Sellers shall have performed and complied in all material
respects with the covenants contained in this Agreement which are
required to be performed and complied with by the Sellers on or prior
to the Closing Date;
(b) the Sellers and the Buyer shall have entered into the
Management Agreement substantially in the form of Exhibit D, if
necessary, pursuant to Section 4.4;
(c) the Post-petition Agent, on behalf of its lender participants,
shall have consented to the sale of the Purchased Assets as provided
herein and in the Sale Order; and
(d) the Buyer shall have received the other items to be delivered
pursuant to Section 4.2.
Any condition specified in this Section 7.2 may be waived by the Buyer; provided
that no such waiver shall be effective against the Buyer unless it is set forth
in a writing executed by the Buyer.
Section 7.3 Conditions to Obligations of the Sellers. The obligation of
each Seller to effect the sale of the Purchased Assets contemplated by this
Agreement shall be subject to the fulfillment at or prior to the Closing Date of
the following additional conditions:
(a) the Buyer shall have performed and complied in all material
respects with the covenants contained in this Agreement which are
required to be performed and complied with by the Buyer on or prior to
the Closing Date and the representations and warranties of the Buyer
which are set forth in this Agreement (without regard as to any
qualifications therein as to materiality) shall be true and correct in
all material respects as of the date of this Agreement and as of the
Closing Date (except to the extent that any such representation or
warranty speaks as of a particular date) as though made at and as of
the Closing Date;
(b) each Seller shall have received the other items to be
delivered to it pursuant to Section 4.3; and
22
(c) the Escrow Agent shall have simultaneously with the Closing released
the Purchase Price in accordance with the Escrow Agreement in
accordance with Section 3.2.
Any condition specified in this Section 7.3 may be waived by the Sellers;
provided that no such waiver shall be effective against any Seller unless it is
set forth in writing executed by such Seller.
ARTICLE VIII
TERMINATION AND ABANDONMENT
Section 8.1 Termination. This Agreement may be terminated at any time
prior to the Closing Date, unless otherwise stated, by:
(a) mutual written consent of Winstar (on behalf of the Sellers)
and the Buyer;
(b) the Sellers, if there has been a material violation or breach
by the Buyer of any covenant, representation or warranty made by it
contained in this Agreement or the Management Agreement which has
prevented the satisfaction of any condition to the obligations of the
Sellers to effect the Closing;
(c) the Buyer, if there has been a material violation or breach by
the Sellers of any covenant made by them in this Agreement or the
Management Agreement which has prevented the satisfaction of any
condition to the obligations of the Buyer to effect the Closing.
(d) the Buyer or the Sellers, if (i) there shall be any law or
regulation that makes consummation of the transactions contemplated
hereby illegal or otherwise prohibited or (ii) consummation of the
transactions contemplated hereby would violate any nonappealable final
order, decree or judgment of (A) the Bankruptcy Court or (B) any court
or governmental body having competent jurisdiction;
(e) the Buyer or the Sellers, if the Sale Order has not been
entered by the Bankruptcy Court within one (1) Business Day after the
date hereof; provided that the Buyer or the Sellers, as the case may
be, shall not be entitled to terminate this Agreement pursuant to this
Section 8.1(e) if the failure to obtain such approval within such time
period results primarily from such party itself breaching any
representation, warranty or covenant contained in this Agreement;
(f) the Buyer or the Sellers, if the Sale Order has been stayed,
vacated, reversed or amended by any court of competent jurisdiction
(except, as may be modified or amended with the written consent of the
Sellers and the Buyer, in their sole discretion); and
(g) the Buyer or the Sellers, if the Closing Date shall not have
occurred on or prior to noon, New York City time, on December 19, 2001
(the "Termination Date"); provided that the Buyer or the Sellers, as
the case may be, shall not be entitled to terminate this Agreement
pursuant to this Section 8.1(g) if the failure of the Closing to occur
on or prior to such date results primarily from such party itself
breaching any representation, warranty or covenant contained in this
Agreement.
23
Section 8.2 Procedure and Effect of Termination. In the event of
termination of this Agreement and abandonment of the transactions contemplated
hereby by either or both of the parties pursuant to Section 8.1, written notice
thereof shall forthwith be given by the terminating party to the other party (it
being understood that notice to Winstar shall have the same effect as notice to
all of the Sellers) and this Agreement shall terminate and the transactions
contemplated hereby shall be abandoned, without further action by any of the
parties hereto. If this Agreement is terminated as provided herein:
(a) said termination shall be the sole remedy, subject to Sections
6.10(d) and 8.2(b), of the parties hereto with respect to breaches of any
covenant, representation or warranty contained in this Agreement and none of the
parties hereto nor any of their respective trustees, directors, officers or
Affiliates, as the case may be, shall have any liability or further obligation
to the other party or any of their respective trustees, directors, officers or
Affiliates, as the case may be, pursuant to this Agreement, except for the
parties hereto in each case as stated in this Section 8.2, Section 9.15 and in
Sections 6.2(b) and 6.3; provided, however, the Sellers shall not be responsible
or liable for any misrepresentation or breach of any warranty or covenant by the
Sellers contained in this Agreement prior to the time of such termination;
(b) the Escrow Amount shall be released to the Buyer or the
Sellers as set forth in the Escrow Agreement;
(c) all filings, applications and other submissions made pursuant
to this Agreement, to the extent practicable, shall be withdrawn from the agency
or other Person to which they were made; and
(d) all Confidential Information from any and all of the Sellers
shall be returned to Winstar, and all Confidential Information from the Buyer
shall be returned to the Buyer.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Amendment and Modification. This Agreement may be amended,
modified or supplemented only by written agreement of Winstar (on behalf of the
Sellers) and the Buyer.
Section 9.2 Waiver of Compliance; Consents. Except as otherwise
provided in this Agreement, any failure of any of the parties to comply with any
obligation, covenant or condition herein may be waived by the party entitled to
the benefits thereof only by a written instrument signed by the party granting
such waiver, but such waiver or failure to insist upon strict compliance with
such obligation, covenant, or condition shall not operate as a waiver of, or
estoppel with respect to any subsequent or other failure.
24
Section 9.3 Survival. The parties hereto agree that the representations
and warranties contained in this Agreement shall not survive the Closing Date
hereunder, and neither party shall have any liability to the other after the
Closing Date for any breach thereof. The representations and warranties set
forth in this Agreement constitute the only representations and warranties made
by the Buyer with respect to the transactions contemplated hereby and the
Purchased Assets transferred pursuant hereto, and such representations and
warranties supersede all representations and warranties, written or oral,
previously made by the Buyer. Furthermore, the parties agree that, other than
the right to terminate as contained in Article VIII of this Agreement, neither
party shall have any recourse to the other party, or to any of the officers,
directors, or Affiliates of such party, in the event any of the representations
and warranties made herein or deemed made are untrue as at any time. The only
remedy of the Seller for a breach of such representations and warranties shall
be the Seller's option, under certain circumstances, not to close and to retain
the Purchase Price in accordance with and subject to the limitations in Section
7.1, 7.3, 8.1(b) and 8.2(b). The parties agree that specific performance shall
be available as a remedy to require performance of each party's covenants
contained in this Agreement. The parties hereto agree that only the covenants
contained in this Agreement to be performed at or after the Closing Date shall
survive the Closing hereunder, and each party hereto shall be liable to the
other after the Closing Date for any breach thereof.
Section 9.4 No Impediment to Liquidation. Subject to Sections 2.2(e),
6.2(c), 6.4 and 6.7, nothing herein shall be deemed or construed as to limit,
restrict or impose any impediment to the Sellers' right to liquidate, dissolve
and wind-up its affairs and to cease all business activities and operations at
such time as it may determine following the Closing, including conversion to
Chapter 7. Subject to Sections 2.2(e), 6.2(c), 6.4 and 6.7, the Sellers shall
not be obligated to retain assets or employees or to continue operations
following the Closing (or to retain outsource assistance) in order to satisfy
its obligations hereunder except to the extent that such would directly
contravene the obligations of the Sellers under this Agreement or the Management
Agreement.
Section 9.5 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given (i) when personally
sent/delivered, by facsimile transmission (with hard copy to follow) or sent by
reputable express courier (charges prepaid) or (ii) five (5) days following
mailing by registered or certified mail postage prepaid and return receipt
requested. Unless another address is specified in writing, notices, demands and
communications to any Seller and the Buyer shall be sent to the addresses
indicated below:
(a) If to any of the Sellers, to:
c/o Winstar Communications, Inc.
The Winstar Building
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Street, CRO
with a copy to:
25
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
Xxxxxxx X. Xxxxx, Esq.
(b) if to the Buyer, to:
c/o IDT Corporation
000 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
with a copy to:
XxXxxxxxx, Will & Xxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
Xxxxx X. Xxxxxxx, Esq.
Section 9.6 Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns and with respect to any of the
Sellers, any entity that may succeed to substantially all the assets of such
Seller, but neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any party hereto, including by
operation of law, without the prior written consent of the other party;
provided, however, that the Buyer may assign this Agreement or any of the
rights, interests or obligations hereunder to any Affiliate provided that Buyer
shall remain liable hereunder. Any assignment of this Agreement or any of the
rights, interests or obligations hereunder in contravention of this Section 9.6
shall be null and void and shall not bind or be recognized by any of the Sellers
or the Buyer. Notwithstanding anything herein to the contrary, the Seller may,
subject to applicable law, distribute the Purchase Price, including any IDT
Shares or Buyer Shares to its creditors.
Section 9.7 Third-Party Beneficiaries. Nothing in this Agreement shall
be construed as giving any Person, including any counter-party to an Assumed
Agreement, other than the parties hereto, any legal or equitable right, remedy
or claim under or with respect to this Agreement.
Section 9.8 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other terms, conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
26
Section 9.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York (regardless of
the laws that might otherwise govern under applicable New York principles of
conflicts of law) as to all matters, including but not limited to matters of
validity, construction, effect, performance and remedies.
Section 9.10 Submission to Jurisdiction. The parties hereto irrevocably
submit to the exclusive jurisdiction of the Bankruptcy Court (or any court
exercising appellate jurisdiction over the Bankruptcy Court) over any dispute
arising out of or relating to this Agreement or any other agreement or
instrument contemplated hereby or entered into in connection herewith or any of
the transactions contemplated hereby or thereby. Each party hereby irrevocably
agrees that all claims in respect of such dispute or proceedings may be heard
and determined in such dispute or proceedings may be heard and determined in
such courts. The parties hereby irrevocably waive, to the fullest extent
permitted by applicable law, any objection which they may now or hereafter have
to the laying of venue of any such dispute brought in such court or any defense
of inconvenient forum in connection therewith.
Section 9.11 Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which, when executed
and delivered, shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
Section 9.12 Incorporation of Schedule and Exhibits. The Disclosure
Schedule and all Exhibits attached hereto and referred to herein are hereby
incorporated herein by reference and made a part of this Agreement for all
purposes as if fully set forth herein.
Section 9.13 Entire Agreement. This Agreement (including the Exhibits
and the Disclosure Schedule) and the Confidentiality Agreement constitute the
entire agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings among the parties with respect
thereto.
Section 9.14 Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
Section 9.15 Remedies. Subject to Section 9.3, the Sellers and the
Buyer hereby acknowledge and agree that money damages may not be an adequate
remedy for any breach or threatened breach of any of the provisions of this
Agreement and that, in such event, the Sellers or their successors or assigns,
or the Buyer or its successors or assigns, as the case may be, may, in addition
to any other rights and remedies existing in their favor, apply to the
Bankruptcy Court for specific performance, injunctive and/or other relief in
order to enforce or prevent any violations of this Agreement.
Section 9.16 Bulk Sales or Transfer Laws. The Buyer hereby waives
compliance by the Sellers with the provisions of the bulk sales or transfer laws
of all applicable jurisdictions.
27
* * * * *
28
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written by their respective officers
thereunto duly authorized.
IDT WINSTAR ACQUISITION, INC.
By: /s/ Xxxxxxx X.X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X.X. Xxxxxx
Title: President
WINSTAR COMMUNICATIONS, INC.
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Executive Vice President
WINSTAR WIRELESS, INC.
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
WCI CAPITAL CORP.
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
WINSTAR EQUIPMENT CORP.
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
WINSTAR EQUIPMENT II CORP.
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
WINSTAR GOVERNMENT SOLUTIONS, LLC.
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
WINSTAR LMDS, LLC
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
WINSTAR NETWORK EXPANSION, LLC
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
WINSTAR WIRELESS FIBER CORP.
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
WINSTAR WIRELESS OF DELAWARE, LLC
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
30
WINSTAR WIRELESS OF GEORGIA, LLC
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
WINSTAR WIRELESS OF INDIANA, LLC
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
WINSTAR WIRELESS OF NEW JERSEY, LLC
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
WINSTAR WIRELESS OF NEW YORK, LLC
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
WINSTAR WIRELESS OF PENNSYLVANIA, LLC
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
WINSTAR WIRELESS OF VIRGINIA, LLC
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
31
WINSTAR WIRELESS OF WEST VIRGINIA, LLC
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
WWI LICENSE HOLDING, INC.
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
WVF-CPQ 1, LLC
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
WVF-CSC 1, LLC
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
WVF-DL 1, LLC
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
WVF-LU 2, LLC
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
32
WVF-I LLC
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
WINSTAR CREDIT CORP.
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
WINSTAR INTERNATIONAL, INC.
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
WINSTAR MIDCOM ACQUISITION CORP.
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
WINSTAR NEW MEDIA COMPANY, INC.
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
WINSTAR INTERACTIVE VENTURES I, INC.
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
33
WINSTAR PUERTO RICO, INC.
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
34
APPENDIX I
SUBSIDIARIES OF WINSTAR
PARTIES HERETO
WCI Capital Corp.
Winstar Credit Corp.
Winstar Equipment Corp.
Winstar Equipment II Corp.
Winstar Government Solutions, LLC.
Winstar International, Inc.
Winstar LMDS, LLC
Winstar Midcom Acquisition Corp.
Winstar Network Expansion, LLC
Winstar Wireless Fiber Corp.
Winstar Wireless, Inc.
Winstar Wireless of Delaware, LLC
Winstar Wireless of Georgia, LLC
Winstar Wireless of Indiana, LLC
Winstar Wireless of New Jersey, LLC
Winstar Wireless of New York, LLC
Winstar Wireless of Pennsylvania, LLC
Winstar Wireless of Virginia, LLC
Winstar Wireless of Virginia, LLC
Winstar Wireless of West Virginia, LLC
WWI License Holding, Inc.
WVF-CPQ 1, LLC
WVF-CSC 1, LLC
WVF-DL 1, LLC
WVF-LU 2, LLC
WVF-I LLC
Winstar New Media Company, Inc.
Winstar Broadcasting Corp.
Winstar Interactive Ventures I, Inc.
Winstar Puerto Rico, Inc.
EXHIBIT A
ASSUMED AGREEMENTS
None.
