PURCHASE AGREEMENT
Exhibit 10.54
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS EXHIBIT, MARKED BY [***], HAS BEEN OMITTED FROM THIS EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO IF PUBLICLY DISCLOSED.
THIS PURCHASE AGREEMENT (this “Agreement”), is made as of December 30, 2020, by and among American AWS-3 Wireless II L.L.C., a Colorado limited liability company (“Buyer”), Northstar Manager, LLC, a Delaware limited liability company (“Seller”), and Northstar Spectrum, LLC, a Delaware limited liability company (the “Company”).
RECITALS
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements set forth herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company, Buyer and Seller agree as follows:
1. | Definitions; Construction. Capitalized terms used herein without definition herein having the meanings ascribed to them in the LLC Agreement and the rules of construction set forth in Section 14.17 of the LLC Agreement are incorporated herein by reference mutatis mutandis. |
2. | Purchase and Sale. |
3. | Seller Representations. Seller represents and warrants to Buyer that: |
4. | Buyer Representations. Buyer represents and warrants to Seller that: |
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5. | Survival of and Limitation on Representations in the Agreement. |
(a)Except for the representations and warranties set forth in this Agreement, the Transferred Interest are being sold hereunder on an “as is,” “where is” basis. Seller provides no other representations or warranties, including implied warranties of merchantability and fitness for a particular purpose, warranties arising from course of dealing or usage of trade, or any other representations or warranties, whether statutory, express or implied, all of which are expressly disclaimed. Seller makes no representation or warranty to Buyer with respect to any financial projections, forecasts or forward looking statements of any kind of nature whatsoever relating to the Transferred Interest. Buyer acknowledges that it has not relied on, and Seller expressly disclaims, any representations or warranties of any kind or nature whatsoever, express or implied, including as to the condition, value or quality of the Company, the Transferred Interest, or the prospects (financial or otherwise), risks and other incidents of the Company and its assets and properties. Buyer, on behalf of itself and its affiliates and its and their respective representatives, hereby waives all rights and claims it or they may have against Seller and its respective affiliates and representatives with respect to the accuracy or any omission of (i) any potentially material information regarding the Transferred Interest, the Company or any of its assets, liabilities or operations and (ii) any representation or warranty, express or implied, as to the quality, merchantability, fitness for a particular purpose, or condition of the Transferred Interest, except, in each case, to the extent set forth in the representations and warranties in Section 3;
(b)the representations and warranties of Seller and Buyer contained in this Agreement shall survive the execution and delivery of this Agreement until the expiration of all applicable statutes of limitation, including any extensions, tolling or waivers thereof; and
(c)Seller makes no representations or warranties about the Company.
6. | No Registration. Buyer acknowledges that the Transferred Interest has not been registered under the Securities Act of 1933 nor any applicable state securities laws and that the Transferred Interest must be held indefinitely unless it is subsequently registered under the Securities Act of 1933 and all applicable state securities laws or a transfer is made pursuant to an exemption from such registration. Buyer further acknowledges that its investment in the Transferred Interest is speculative and risky and that there is no current public or other market for the Transferred Interest. |
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7. | FCC Filings. Seller shall cause the License Company to take all actions necessary and proper under FCC Rules for the License Company to timely make such filings, amendments to pending applications, and any other submissions required to be filed under FCC Rules in connection with the transaction contemplated by this Agreement. |
8. | Opinions. Buyer hereby acknowledges and agrees that, notwithstanding Section 7.4 of the LLC Agreement, Seller will not deliver any legal opinions in connection with the transaction contemplated by this Agreement. |
9. | Manager. Buyer hereby acknowledges and agrees that, notwithstanding Section 7.1(b) of the LLC Agreement or anything else in the LLC Agreement to the contrary, following the sale of the Transferred Interest to Buyer, Seller shall continue to be the Manager until Seller’s resignation or removal as Manager as set forth in the LLC Agreement. |
11. | Tax Matters. The determination of whether NSM is a “notice partner” for purposes of Section 5.5(c) of the LLC Agreement shall be made without regard to the transfer provided for in this Agreement for all periods prior to the disposition by Seller of Seller’s Remaining Interest. |
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12. | Acknowledgments. The parties acknowledge and agree that: (a) entering into this Agreement and the transaction contemplated hereby shall not be or result in a Significant Breach or Significant Violation (or any other breach or violation of the LLC Agreement or any of the other agreements referenced therein); and (b) for the avoidance of doubt, upon the consummation of the transaction contemplated by this Agreement, the LLC Agreement, the Senior Credit Agreement, the Interest Purchase Agreement, the Intercreditor and Subordination Agreement, the NSM Security Agreement, the NSM Pledge Agreement, and the other agreements referenced in the foregoing agreements shall remain in full force and effect. |
13. | Further Assurances. Each of the parties agrees that at any time and from time to time upon the request of another party hereto, it shall execute and deliver such further documents and shall take such further actions as such other party may at any time or times reasonably request, at the expense of such requesting party, consistent with the provisions hereof in order to carry out and effect the intent and purposes of this Agreement, and to vest in Buyer, and put Buyer in possession of, the Transferred Interest. |
14. | Miscellaneous. |
14.1 | Notices. All notices and other communications given or made pursuant to this Agreement must be in writing and shall be given in accordance with Section 14.12 of the LLC Agreement. |
14.2 | Governing Law; Arbitration. This Agreement shall be construed in accordance with and governed by the internal laws of the State of Delaware applicable to agreements made and to be performed wholly within such jurisdiction, without regard to principles of conflicts of law provisions of that or of any other state, all rights and remedies being governed by said laws. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof in accordance with Section 10.3 of the LLC Agreement, the provisions of which are incorporated herein by reference mutatis mutandis. |
14.3 | Entire Agreement. This Agreement and the LLC Agreement (and the other agreements referenced therein) constitute the full and entire understanding and agreement between the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties are expressly canceled. Notwithstanding the foregoing, that certain Appeal Contingency Agreement, dated as of October 1, 2015, by and among the Company, Seller, Buyer and Northstar Wireless, LLC, as amended to date, shall continue to apply; provided, however, that the parties hereto hereby acknowledge and agree that the proviso set forth in Section 3 thereof shall be deemed to be deleted and shall have no further force or effect. |
14.4 | Amendment; Waiver. Neither this Agreement nor any provision hereof may be amended, modified, or waived except in a writing signed by Buyer and Seller. No failure or delay of a party in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or |
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discontinuance of steps to enforce any such right or power, preclude any other further exercise thereof or the exercise of any other right or power. No waiver by a party of any departure by any party from any provision of this Agreement shall be effective unless the same shall be in a writing signed by the party against which enforcement of such waiver or consent is sought, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. |
14.6 | Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. |
14.8 | Fees and Expenses. Each of Buyer and Seller will pay its own expenses incurred in connection with the transaction contemplated by this Agreement. |
14.9 | Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. |
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Purchase Agreement to be executed as of the day and year first above written.
NORTHSTAR SPECTRUM, LLC
By:Northstar Manager, LLC, its Manager
By: Xxxxx, Limited, its Manager
By:/s/ Xxxxx Xxxxxx
Name:Xxxxx Xxxxxx
Title:President & CEO
SELLER:
NORTHSTAR MANAGER, LLC
By: Xxxxx, Limited, its Manager
By:/s/ Xxxxx Xxxxxx
Name:Xxxxx Xxxxxx
Title:President & CEO
BUYER:
AMERICAN AWS-3 WIRELESS II L.L.C.
By:/s/ Xxxxxx X. Xxxxxx
Name:Xxxxxx X. Xxxxxx
Title:EVP
Purchase Agreement Signature Page