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Exhibit 10.74
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is entered into as of
November 28, 1997 by and between WESTERN WIRELESS CORPORATION, a Delaware
corporation ("Purchaser"), and CORPORATE TELECOM SERVICES, INC., a Maryland
corporation ("Seller"). Purchaser and Seller are sometimes referred to herein
collectively as the "Parties" and each as a "Party."
RECITALS
WHEREAS, Seller is the holder of the non-wireline cellular radio
telephone license granted by the Federal Communications Commission (the "FCC" or
the "Commission") for the Nebraska-5 Rural Service Area, commonly known as FCC
RSA No. 537 - Xxxxx (the "RSA");
WHEREAS, Purchaser, an experienced cellular licensee has been providing
cellular radio service within said RSA pursuant to interim operating authority
granted by the FCC;
WHEREAS, Purchaser has entered into an agreement to purchase certain
rights relating to the license from Global Communications Systems, Inc. ("GCSI")
under the terms of an Asset Purchase Agreement executed as of the same date as
this Agreement (the "GCSI APA"); and
WHEREAS, Seller desires to sell and Purchaser wishes to acquire the
Authorization for the price and on the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS
As used herein, the terms below shall have the following meanings:
"Action" shall have the meaning set forth in Section 5.5.
"Affiliate" of a Person shall mean any Person which directly or
indirectly controls, is controlled by, or is under common control with, such
Person. The term "control" (including, with correlative meaning, the terms
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or
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indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
"Assignment Application" shall mean that joint application filed with
the FCC relating to the assignment of the Authorization to Purchaser in the
manner contemplated by this Agreement.
"Authorization" shall mean the Authorization from the FCC relating to
the Nebraska-5 RSA that authorize the holder thereof to construct, own and
operate the non-wireline cellular telephone system in the Nebraska-5 RSA.
"Closing Date" shall mean the first business day that is fifteen (15)
days immediately following the date of the issuance of the FCC Consent by Final
Order.
"Closing Place" shall mean such location agreed upon by the Parties or,
in the absence of such an agreement, the offices of Xxxxxx Xxxxxxxx, P.S., 000
Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx 00000.
"Closing" shall mean the consummation of the assignment, transfer,
conveyance and delivery of the Authorization and the Purchase Price as
contemplated hereunder.
"Consents" shall mean any and all consents, approvals, authorizations or
waivers of any public, governmental or regulatory body or authority, including,
without limitation, the FCC Consent, that are required for the consummation of
the transactions contemplated by this Agreement.
"CTSI" shall mean Corporate Telecom Services, Inc.
"CTSI Loan Agreement" shall mean that Loan and Pledge Agreement executed
by CTSI and GCSI on the 13th day of December, 1994, together with all amendments
or modifications thereof.
"FCC Consent" shall mean the action of the FCC granting its consent to
the assignment of the Authorization from Seller to Purchaser.
"Final Order" shall mean an action by the FCC consenting to or
authorizing the assignment of the Authorization to Purchaser (or its designee),
which is not reversed, stayed, enjoined, set aside, annulled, or suspended, and
with respect to which no timely request for stay, motion or petition for
reconsideration or rehearing, application or request for review, or notice of
appeal or other judicial petition for review is pending, and as to which the
time for filing any such request, motion, petition, application, appeal, or
notice, and for the entry of an order staying, reconsidering, or reviewing on
the FCC's or other regulatory authorities' own motion, has expired. An action of
the FCC which is not reversed, stayed, enjoined, set aside, annulled, or
suspended, and with respect to which no
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timely request for stay, motion or petition for reconsideration or rehearing,
application or request for review, or notice of appeal or other judicial
petition for review is pending, and as to which the time for filing any such
requests, motion, petition, application, appeal, or notice, and for the entry of
an order staying, reconsidering or reviewing on the FCC's or other regulatory
authorities' own motion has expired, but which is subject to conditions is not
(and shall not be deemed) a Final Order unless and until the Party acquiring
such Authorization pursuant to the terms of this Agreement has notified Seller
in writing of its willingness to accept such conditions.
"GCSI" shall mean Global Communications Systems, Inc.
"GCSI APA" shall have the meaning set forth in the preamble to this
Agreement.
"Indemnification Period" shall have the meaning set forth in Section
10.1.
"Purchase Price" shall have the meaning set forth in Section 2.2.
"Representative" shall mean any officer, director, principal, attorney,
agent, employee or other representative of any Person.
"System" shall mean that system constructed to provide cellular
telephone services under the authority of the Authorization.
"Taxes" shall mean all taxes, charges, fees, levies or other
assessments, including without limitation, income, excise, use, transfer,
payroll, occupancy, property, sales, franchise, unemployment and withholding
taxes, imposed by the United States or any state, county, local or foreign
government or subdivision or agency thereof, and any assessments against Real
Property together with any interest, penalties or additional taxes attributable
to such taxes and other assessments.
"To the knowledge" or "knowledge" of a party (or similar phrases) shall
mean to the extent of matters (a) which are actually known by such party or (b)
which, based on facts of which such party is aware, would be known to a
reasonable person in similar circumstances.
ARTICLE 2.
PURCHASE OF ASSETS
2.1. Assignment of Authorization. Subject to the terms and upon
satisfaction of the conditions contained in this Agreement, at the Closing,
Seller shall sell, convey, transfer, assign and deliver to Purchaser (or its
designee), and Purchaser (or its designee) will acquire, the Authorization.
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2.2. Purchase Price. The purchase price for the Authorization shall be
Six Million Nine Hundred Sixty Thousand Dollars ($6,960,000) (the "Purchase
Price"), which shall be paid by Purchaser to Seller (or its designee) on the
Closing Date by wire transfer of immediately available funds.
ARTICLE 3.
ASSUMED OBLIGATIONS
No Assumption of Liabilities by Purchaser. Purchaser expressly does not,
and shall not, assume or be deemed to have assumed under this Agreement or by
reason of any transactions contemplated hereunder any debts, liabilities
(contingent or otherwise) or obligations of Seller, or any of its stockholders
or partners, as the case may be, of any nature whatsoever, whether relating to
the Authorization or otherwise.
ARTICLE 4.
COVENANTS AND AGREEMENTS
4.1. Covenants of Seller. Seller covenants and agrees from and after the
execution and delivery of this Agreement to and including the Closing Date as
follows:
4.1.1. Consummate Transactions. Seller shall use its reasonable
best efforts to cause the transactions contemplated by this Agreement to be
consummated in accordance with the terms hereof, and shall use its reasonable
best efforts to refrain from any actions that might adversely affect any Party's
ability to consummate the contemplated transactions in accordance with the terms
hereof.
4.1.2. Compliance with Law; Maintenance of Authorization. Seller
shall comply in all material respects with all applicable laws, rules,
ordinances, regulations, codes, orders, decrees, licenses and permits of all
applicable jurisdictions and governmental authorities or agencies relating to
Seller and the Authorization. Seller shall maintain the Authorization in full
force and effect, and shall not take any action which might reasonably be
anticipated to have a material adverse effect on the Authorization.
4.1.3. Notice of Claims. Seller shall give written notice to
Purchaser promptly upon the commencement of any action, investigation,
arbitration or proceeding (including any proceeding before any governmental
agency), or promptly upon obtaining knowledge of any facts giving rise to a
threat of any such action, investigation, arbitration or proceeding which would,
if adversely determined, materially and adversely affect (1) Seller's ability to
consummate the transactions contemplated hereby or (2) the Authorization.
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4.1.4. Notice of Breaches. Seller shall promptly after obtaining
knowledge of the occurrence of, or the impending or threatened occurrence of,
any event which would cause or constitute a breach of any warranties,
representations, covenants or agreements of the Seller contained in this
Agreement, give notice in writing of such event or occurrence or impending or
threatened event or occurrence, to Purchaser and use its diligent efforts to
prevent or to promptly remedy such breach.
4.1.5. No Sale. Except as the same may relate to this Agreement
and the transactions contemplated hereunder, Seller shall not enter into any
contract or agreement to sell or encumber the Authorization.
4.1.6. Retention of Records. On the Closing Date, Seller shall
deliver to Purchaser all such books, contracts and records of Seller that relate
to the Authorization as are reasonably requested by Purchaser.
4.1.7. Compliance with Law. Seller shall comply in all material
respects with all applicable laws, rules, ordinances, regulations, codes,
orders, decrees, licenses and permits of all applicable jurisdictions and
governmental authorities or agencies relating to the Authorization.
4.2. Covenants of Purchaser. Purchaser covenants and agrees that from
and after the execution and delivery of this Agreement to and including the
Closing Date:
4.2.1. Consummate Transaction. Purchaser shall use its best
efforts to cause the transactions contemplated by this Agreement to be
consummated in accordance with the terms hereof, and shall refrain from any
actions that might adversely affect any Party's ability to consummate the
contemplated transactions in accordance with the terms hereof.
4.2.2. Notice of Breaches. Purchaser shall promptly after
obtaining knowledge of the occurrence of, or the impending or threatened
occurrence of, any event which would cause or constitute a breach of any
warranties, representations, covenants or agreements of the Purchaser contained
in this Agreement, give notice in writing of such event or occurrence or
impending or threatened event or occurrence, to Seller and use its diligent
efforts to prevent or to promptly remedy such breach.
4.3. Mutual Covenants.
4.3.1. Governmental Filings. Each of Seller and Purchaser
covenant and agree from and after the execution and delivery of this Agreement
to and including the Closing Date that the parties have filed or will file with
the FCC by no later than ten business days from the date of the Agreement's
execution, joint applications requesting the approval of the assignment of the
Authorization to Purchaser, and, if applicable, will file all necessary
applications with the Department of Justice and/or the Federal Trade
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Commission pursuant to the Antitrust Improvement Acts of 1976, as amended ("HSR
Act"). Each of the parties hereto shall diligently take or cooperate in the
taking of all steps which are necessary or appropriate to expedite the
prosecution and favorable consideration of such applications. The parties
covenant and agree to undertake all actions and file such material as shall be
necessary or required to obtain any necessary waivers or other authority in
connection with the foregoing applications.
4.3.2. Approvals; Consents. The parties shall consult with one
another as to the approach to be taken with any governmental authority or agency
with respect to obtaining any necessary consent of such governmental agency or
authority to the transactions contemplated hereby. If it appears to Seller that
the transactions herein may not be consummated prior to November 12, 1998, then,
if requested by Seller, Purchaser shall cooperate with Seller in entering into a
mutually acceptable lease arrangement and operating agreement as contemplated by
Article 12 of this Agreement. Each of the parties shall keep each other party
reasonably informed as to the status of any such communi cations with any
governmental authority or agency. To the extent it is permitted by applicable
FCC regulations, Seller shall not make any material commitments relating to any
approval, consent, permit or license to any governmental authority or agency
without Purchaser's prior written consent, which consent shall not be
unreasonably withheld.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby makes the following representations and warranties to
Purchaser:
5.1. Organization and Standing. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the state of its
incorporation, and has full corporate power and authority to enter into and
perform this Agreement.
5.2. Authorization and Binding Obligations. The execution, delivery and
performance of this Agreement by Seller have been duly and validly authorized by
all necessary corporate action, including approval of the entire transaction by
the requisite vote of the board of directors of Seller. This Agreement has been
duly executed and delivered by Seller and constitutes a valid and binding
agreement of Seller enforceable against it in accordance with its terms, except
as its enforceability may be limited by bankruptcy, insolvency, moratorium or
other laws relating to or affecting creditors' rights generally and the exercise
of judicial discretion in accordance with general equitable principles.
5.3. No Contravention. Except as otherwise contemplated hereunder, the
execution, delivery and performance of this Agreement, the consummation of the
transactions contemplated hereby and the compliance with the provisions hereof
by Seller
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will not (a) violate any provisions of the corporate charter or bylaws of
Seller, (b) result in the breach of, or constitute a default under, or result in
the creation of any lien, charge or encumbrance upon the Authorization under the
provisions of any agreement or other instrument to which Seller is a party or by
which the property of Seller is bound or affected or (c) violate any laws,
regulations, orders or judgments applicable to Seller.
5.4. Authorization. The Authorization is not, or will not be on the
Closing Date, subject to any agreements or restrictions that would inhibit or
prevent Seller from assigning the same to Purchaser free and clear of any and
all liens and encumbrances. Furthermore, there are no, and there will not be on
the Closing Date, any agreements that may effect the validity of the
Authorization or Purchaser's right to own or hold the same now or in the future,
nor are there any agreements that may affect Seller's right to own, hold or
assign the Authorization to Purchaser as contemplated by this Agreement. The
Authorization is validly issued in the name of Seller and is in full force and
effect. The Authorization is unimpaired by any acts or omissions of Seller (or
any of its Representatives) and the Authorization is free and clear of any
restrictions which might limit the full operation of a system constructed to
provide cellular telephone services under the authority of the Authorization.
The Authorization is not and will not be materially and adversely
affected by any of the rights or obligations created under Article VI of the
CTSI Loan Agreement (hereinafter collectively referred to as the "Article VI
Rights") or by the transfer of any of the Article VI Rights to Purchaser, and
the existence of the Article VI Rights does not constitute, and will not cause,
a violation of FCC rules, regulations or orders, or the rules or regulations of
any other governmental authority having jurisdiction over the Authorization. The
creation of the Article VI Rights did not grant an interest in the FCC
application for the Authorization that was or is in violation of the rules,
regulations or orders of the FCC, and does not grant an interest in the
Authorization that was or is in violation of the rules, regulations or orders of
the FCC. The existence of the Article VI Rights did not have to be reported to
the FCC while the FCC application for the Authorization was pending and does not
have to be reported to the FCC in connection with the assignment of the
Authorization to Purchaser under the rules, regulations and orders of the FCC.
5.5. Litigation. There is no action, order, writ, injunction, judgment
or decree outstanding or claim, suit, litigation, proceeding, or labor dispute
("Action"), other than rule-making proceedings affecting the cellular telephone
industry generally, pending or, to the knowledge of Seller, threatened or
anticipated against, relating to or affecting (a) Seller, (b) the Authorization,
or (c) the transactions contemplated by this Agreement. Seller is not in default
with respect to any judgment, order, writ, injunction or decree of any court or
governmental agency, and there are no unsatisfied judgments against Seller or
the Authorization. There is not a reasonable likelihood of an adverse
determination of any pending Action which would, individually or in the
aggregate, have a material adverse effect on the Seller or the Authorization.
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5.6. Complaints. There is not any Commission investigation, notice of
apparent liability or order of forfeiture pending or outstanding against Seller
respecting any violation, or allegation thereof, of any Commission rule,
regulation or policy, or, to the best of Seller's knowledge, any complaint
before the Commission as a result of which an investigation, notice of apparent
liability or order of forfeiture may issue from the Commission relating to the
System, nor is there any basis for any such claim.
5.7. Reports. All returns, reports and statements currently required to
be filed by Seller with the Commission or with any other governmental agency
with respect to the Authorization have been filed and substantially complied
with and shall continue to be filed and be in substantial compliance on a
current basis until the Closing Date. All such reports, returns and statements
are (or will be, in the case of future reports) substantially complete and
correct as filed.
5.8. Taxes. Seller has filed, or caused to be filed, with the
appropriate federal, state and local governmental agencies all required tax and
information returns, and Seller has paid, caused to be paid or accrued all
taxes, excise taxes, assessments, charges, penalties and interest shown to be
due and payable or claimed to be due and payable thereon.
5.9. No Brokers. Neither Seller nor any of its Affiliates have entered
into or will enter into any contract, agreement, arrangement or understanding
with any person or firm which will result in the obligation of Purchaser to pay
any finder's fee, brokerage commission or similar payment in connection with the
transactions contemplated hereby.
5.10. Miscellaneous. No representation or warranty made by Seller in
this Agreement, and no statement made in any schedule, exhibit, certificate or
other document furnished pursuant to this Agreement, contains or will contain
any untrue statement of a material fact or knowingly omits or fails to state, or
will omit or fail to state, any material fact or information necessary to make
such representation or warranty or any such statement not materially misleading.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby makes the following representations and warranties to
Seller:
6.1. Organization and Standing. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the state of
its incorporation, and has full corporate power and authority to enter into and
perform this Agreement.
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6.2. Authorization and Binding Obligations. The execution, delivery and
performance by Purchaser of this Agreement has been duly and validly authorized
by all necessary corporate action, including any necessary approval of the
entire transaction by the board of directors of Purchaser. This Agreement has
been duly executed and delivered by Purchaser and constitutes a valid and
binding agreement of Purchaser, enforceable against Purchaser in accordance with
its terms except as its enforceability may be limited by bankruptcy, insolvency,
moratorium or other laws relating to or affecting creditors' rights generally
and the exercise of judicial discretion in accordance with general equitable
principles.
6.3. No Contravention. Except as otherwise contemplated hereunder, the
execution, delivery and performance of this Agreement, the consummation of the
transactions contemplated hereby and the compliance with the provisions hereof
by Purchaser will not (a) violate any provisions of the corporate charter or
by-laws of Purchaser, or (b) violate any laws, regulations, orders or judgments
applicable to Purchaser.
6.4. Litigation. There is no Action, other than rule-making proceedings
affecting the cellular telephone industry generally, pending or, to the
knowledge of Purchaser, threatened or anticipated against, relating to or
affecting Purchaser that would have a material adverse effect Purchaser's
ability to consummate the transactions contemplated by this Agreement. There is
not a reasonable likelihood of an adverse determination of any pending Action
which would, individually or in the aggregate, have a material adverse effect on
Purchaser's ability to consummate the transactions contemplated by this
Agreement.
6.5. Qualification of Purchaser. Purchaser is familiar with the
Communications Act of 1934, as amended, and the existing rules, regulations,
policies and orders of the FCC. There is no fact known to Purchaser that would
under the Act and existing rules, regulations, policies and orders of the FCC
disqualify Purchaser from acquiring the Authorization from Seller.
6.6. No Brokers. Neither Purchaser nor any of its Affiliates have
entered into or will enter into any contract, agreement, arrangement or
understanding with any person or firm which will result in the obligation of
Seller to pay any finder's fee, brokerage commission or similar payment in
connection with the transactions contemplated hereby.
6.7. Miscellaneous. No representation or warranty made by Purchaser in
this Agreement, and no statement made in any schedule, exhibit, certificate or
other document furnished pursuant to this Agreement, contains or will contain
any untrue statement of a material fact or knowingly omits or fails to state, or
will omit or fail to state, any material fact or information necessary to make
such representation or warranty or any such statement not materially misleading.
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ARTICLE 7.
CONDITIONS TO SELLER'S OBLIGATIONS
The obligations of Seller to assign the Authorization and to otherwise
consummate the transactions contemplated by this Agreement are subject, in the
discretion of Seller, to the satisfaction, on or prior to the Closing Date, of
each of the following conditions:
7.1. Representations, Warranties and Covenants. All representations and
warranties of Purchaser contained in this Agreement shall be true and correct in
all material respects at and as of the Closing Date as if such representations
and warranties were made at and as of the Closing Date, and Purchaser shall have
performed in all material respects all agreements and covenants required hereby
to be performed by it prior to or at the Closing Date. There shall be delivered
to Seller a certificate (signed by an officer of Purchaser) to the foregoing
effect ("Purchaser's Closing Certificate").
7.2. Closing Documents. Seller shall have received from Purchaser the
documents and other items to be delivered by Purchaser pursuant to Section 9.2
of this Agreement.
7.3. Purchase Price. Seller shall have received payment of the Purchase
Price in accordance with Article 2 hereof.
7.4. HSR Waiting Period. If applicable, any waiting period required by
the HSR Act shall have lapsed or been terminated, and any investigation of the
transactions contemplated by this Agreement commenced by the Department of
Justice and/or the Federal Trade Commission pursuant to the HSR Act shall have
been terminated.
ARTICLE 8.
CONDITIONS TO PURCHASER'S OBLIGATIONS
The obligations of Purchaser to purchase the Authorization and to
otherwise consummate the transactions contemplated by this Agreement are
subject, in the discretion of Purchaser, to the satisfaction, on or prior to the
Closing Date, of each of the following conditions:
8.1. Representations, Warranties and Covenants. All representations and
warranties of Seller contained in this Agreement shall be true and correct in
all material respects at and as of the Closing Date as if such representations
and warranties were made at and as of the Closing Date, and Seller shall have
performed in all material respects all agreements and covenants required hereby
to be performed by Seller prior to or at the
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Closing Date. There shall be delivered to Purchaser a certificate (signed by an
officer of Seller) to the ongoing effect ("Seller's Closing Certificate").
8.2. Consent. The FCC shall have consented to the assignment of the
Authorization to Purchaser and such consents shall have become a Final Order.
8.3. Closing of GCSI Transaction. All conditions precedent to the
closing of the transaction contemplated by the GCSI APA shall have been met or
waived, and such transaction shall be ready to be closed contemporaneously with
the transactions contemplated by this Agreement.
8.4. Closing Documents. Purchaser shall have received from Seller the
documents and other items to be delivered by Seller pursuant to Section 9.1
hereof.
8.5. Opinion of Seller's Corporate Counsel. Seller shall have delivered
to Purchaser an opinion or opinions of corporate counsel for Seller in
substantially the form attached hereto as Exhibit 8.5.
8.6. Opinion of Seller's FCC Counsel. Seller shall have delivered to
Purchaser an opinion or opinions of FCC counsel for Seller in substantially the
form attached hereto as Exhibit 8.6.
8.7. HSR Waiting Period. If applicable, any waiting period required by
the HSR Act shall have lapsed or been terminated, and any investigation of the
transactions contemplated by this Agreement commenced by the Department of
Justice and/or the Federal Trade Commission pursuant to the HSR Act shall have
been terminated.
ARTICLE 9.
THE CLOSING
On the Closing Date at the Closing Place:
9.1. Deliveries by Seller to Purchaser. Seller shall deliver to
Purchaser:
9.1.1. one or more assignments assigning to Purchaser (or its
designee) all of Seller's interest in and to the Authorization;
9.1.2. the opinions of Seller's counsel referenced in Sections
8.5 and 8.6 hereof;
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9.1.3. a copy of the resolutions of the board of directors of
Seller approving the transactions contemplated by this Agreement certified by an
appropriate officer of Seller; and
9.1.4. Seller's Closing Certificate.
9.2. Deliveries by Purchaser to Seller. Purchaser shall deliver to
Seller (or its designee):
9.2.1. Purchaser's Closing Certificate; and
9.2.2. payment of the Purchase Price.
ARTICLE 10.
INDEMNIFICATION
10.1. Survival. The several representations, warranties, covenants, and
agreements of the Parties contained in this Agreement (or in any document
delivered in connection herewith) shall be deemed to have been made on the date
of this Agreement and on the Closing Date, shall be deemed to be material and to
have been relied upon by the Parties notwithstanding any investigation made by
the Parties, shall survive the Closing Date, and shall remain operative and in
full force and effect for a period of three (3) years following the Closing
Date; provided, however, that the representations, warranties and agreements of
Seller contained in Section 5.4 (Authorization) shall continue for the duration
of any applicable statute of limitations. The period during which the several
representations, warranties, covenants and agreements shall survive and continue
is referred to herein as the "indemnification period."
10.2. Seller's Indemnity.
10.2.1. During the indemnification period (or thereafter solely
with respect to any claim for which indemnification has been made prior to the
expiration of the indemnification period), Seller shall indemnify and hold
harmless Purchaser and its Affiliates from and against any and all demands,
claims, losses, liabilities, actions or causes of action, assessments, actual
damages (but excluding consequential damages), fines, taxes (including, without
limitation, excise and penalty taxes), penalties, reasonable costs and expenses
(including, without limitation, interest, reasonable expenses of investigation,
reasonable fees and disbursements of counsel, accountants and other experts
(whether such reasonable fees and disbursements of counsel, accountants and
other experts relate to claims, actions or causes of action asserted by
Purchaser against Seller or asserted by third parties)) (collectively "Losses")
incurred or suffered by Purchaser, its Affiliates, and their
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respective officers, directors, employees, agents and representatives, arising
out of, resulting from, or relating to:
(a) Any breach of any of the representations or warranties
made by Seller in this Agreement or in any agreement, certificate, exhibit or
other instrument delivered by the Seller pursuant to this Agreement; and
(b) Any failure by Seller to perform any of its covenants
or agreements contained in this Agreement or in any agreement, certificate or
other instrument delivered by the Seller pursuant to this Agreement.
10.3. Purchaser's Indemnity.
10.3.1. During the indemnification period (or thereafter solely
with respect to any claim for which indemnification has been made prior to
expiration of the indemnification period), in addition to any other
indemnification provided for under this Agreement, Purchaser shall indemnify and
hold harmless Seller and its Affiliates from and against any and all Losses
incurred or suffered by Seller, its Affiliates, and their respective officers,
directors, employees, agents and representatives, arising out of, resulting
from, or relating to:
(a) Any breach of any of the representations or warranties
made by Purchaser in this Agreement or in any agreement, certificate or other
instrument delivered by Purchaser pursuant to this Agreement; or
(b) Any failure by Purchaser to perform any of its
covenants or agreements contained in this Agreement or in any agreement,
certificate or other instrument delivered by Purchaser pursuant to this
Agreement.
10.4. Procedure. In the event that any party hereto shall sustain or
incur any Losses in respect of which indemnification may be sought by such party
pursuant to this Article, the party seeking such indemnification (the
"Indemnitee") shall assert a claim for indemnification by giving prompt written
notice thereof (the "Notice") which shall describe in reasonable detail the
facts and circumstances upon which the asserted claim for indemnification is
based along with a copy of the claim or complaint, to the party providing
indemnification (the "Indemnitor") and shall thereafter keep the Indemnitor
reasonably informed with respect thereto; provided that failure of the
Indemnitee to give the Indemnitor prompt notice as provided herein shall not
relieve the Indemnitor of any of its obligations hereunder, except to the extent
that the Indemnitor is materially prejudiced by such failure. For purposes of
this paragraph, any notice which is sent within 15 days of the date upon which
the Indemnitee learned of such Loss shall be deemed to have been a "prompt
notice."
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10.4.1. If the Indemnitor wishes to defend any claim for any
Losses for which such Indemnitor is or may be liable, and such Indemnitor first
establishes (to the reasonable satisfaction of the Indemnitee) the Indemnitor's
financial ability to pay for any such Losses, then such Indemnitor may, at its
own expense, defend such claim; provided that the Indemnitee may retain counsel
(at the Indemnitee's expense) to monitor the defense of such claim, and may take
over such defense if, during the course thereof, it reasonably appears that the
Indemnitor has lost its ability to pay for any Losses threatened by such claim.
If an Indemnitor assumes the defense of such an action, no compromise or
settlement thereof may be effected by the Indemnitor without the Indemnitee's
consent, which consent shall not be unreasonably withheld. If an Indemnitor
fails, within thirty (30) days after the date of the Notice, to give notice to
the Indemnitee of said Indemnitor's election to assume the defense thereof, said
Indemnitor shall be bound by any determination made in such action or any
compromise or settlement thereof effected by the Indemnitee.
10.4.2. Amounts payable by the Indemnitor to the Indemnitee in
respect of any Losses for which any party is entitled to indemnification
hereunder shall be payable by the Indemnitor as incurred by the Indemnitee.
10.5. Indemnification Payments in Cash. All payments in respect to any
indemnification obligation shall be made in cash.
10.6. Investigations: Waivers. The survival periods and rights to
indemnification provided for in this Article shall remain in effect
notwithstanding any investigation at any time by or on behalf of any party
hereto or any waiver by any party hereto of any condition to such party's
obligations to consummate the transactions contemplated hereby.
ARTICLE 11.
TERMINATION
Absence of Commission Consent. This Agreement may be terminated at the
option of Seller or Purchaser upon written notice to the other if the Assignment
Application has not been granted by Final Order within twelve (12) months after
the date of this Agreement. Neither party may terminate this Agreement pursuant
to this Section if such party is in material default hereunder, or if a delay in
any decision or determination by the Commission respecting the Assignment
Application has been caused or materially contributed to by such party's action
or inaction with respect to such Assignment Application.
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ARTICLE 12.
INTERIM CONSTRUCTION
Nothing in this Agreement shall be construed as restricting Seller's
right to undertake any construction activity that Seller may deem necessary or
appropriate in order to comply with FCC construction obligations. It is
acknowledged that such activity may include the participation or assistance of
GCSI, and may involve the utilization of an SCS 800 switch; the co-licensing of
existing facilities in the RSA; or by entering into a lease arrangement and
operating agreement with Purchaser as the current provider of services in the
RSA. No such construction or activity shall affect any of the terms and
conditions of this Agreement.
ARTICLE 13.
MISCELLANEOUS
13.1. Assignment. Except as provided below, neither this Agreement nor
any of the rights or obligations hereunder may be assigned by Seller or
Purchaser without the prior written consent of the others. Notwithstanding the
foregoing, Purchaser may, without consent, assign its right, title and interest
in, to and under this Agreement to an Affiliate so long as Purchaser remains
obligated for all representations, warranties and obligations made by Purchaser
herein, and provided such assignment does not delay the Closing Date. This
Agreement shall be binding upon and inure to the benefit of the Parties hereto
and their respective successors and assigns, and no other person shall have any
right, benefit or obligation hereunder.
13.2. Notices; Transfer of Funds. Unless otherwise provided herein, any
notice, request, instruction or other document to be given hereunder by any
Party to the other shall be in writing and delivered in person or by courier,
telegraphed, telexed or by facsimile transmission or mailed by registered or
certified mail, postage prepaid, return receipt requested (such mailed notice to
before the date of such receipt is acknowledged), as follows:
If to Purchaser:
Western Wireless Corporation
0000 XX Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Fax: (000) 000-0000
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With a copy to:
Xxxxxx Xxxxxxxx, P.S.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
If to Seller:
Corporate Telecom Services, Inc.
X.X. Xxxxxxxxx & Co., Inc.
0000 Xxxxxxxxx Xxxxxx, Xxxxx #000 Xxxx
Xxxxxxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxxxxxx
With a copy to:
Xxxxx Xxxxx & Xxxxx, P.L.C.
0000 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
or to such other place and with such other copies as either party may designate
as to itself by written notice to the others. All such notices and
communications shall be deemed to have been duly given at the time delivered by
hand, if personally delivered; five business days after being deposited in the
mail, first class postage prepaid, return receipt requested, if mailed; when
answered back, if telexed; when receipt confirmed, if sent by facsimile; and the
next business day after timely delivery to the courier, if sent by an over-night
air courier service guaranteeing next day delivery.
13.3. Specific Performance. The obligations of Seller and Purchaser
under this Agreement are unique. If either party should default in its
obligations under this Agreement, the parties acknowledge that it would be
extremely impracticable to measure the resulting damages; accordingly, in
addition to any other available rights or remedies,
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either party may xxx in equity for specific performance, and the parties
expressly waive the defense that a remedy in damages will be adequate.
13.4. Choice of Law. This Agreement shall be construed, interpreted and
the rights of the Parties determined in accordance with the laws of the State of
Delaware, except with respect to matters of law concerning the internal
corporate affairs of any corporate entity which is a party to or the subject of
this Agreement, and as to those matters the law of the jurisdiction under which
the respective entity derives its powers shall govern.
13.5. Entire Agreement; Amendments and Waivers. This Agreement, together
with all exhibits and schedules hereto, constitutes the entire agreement among
the parties pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties. No supplement, modification or waiver of this Agreement
shall be binding unless executed in writing by the party to be bound thereby. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver unless otherwise expressly
provided.
13.6. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13.7. Invalidity. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to herein,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement or any other such instrument. If the
invalidity, illegality or unenforceability of any provision causes or is likely
to have a material adverse affect on the benefits of the bargain for either of
the parties then the parties agree to negotiate in good faith to re-establish
the relative benefits of the bargain, and if they are not able to do so within a
period of sixty (60) days after such provision is declared or found to be
invalid, illegal or unenforceable, then this Agreement shall become of no
further force or effect.
13.8. Headings. The headings of the Articles and Sections herein are
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
13.9. Expenses. Except as otherwise expressly provided herein, Seller
shall be solely responsible for any sales and transfer Taxes, recording and
transfer fees arising from the purchase and sale of the Authorization pursuant
to this Agreement. Except as otherwise provided in this Agreement, Seller and
Purchaser will each be liable for its own
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expenses incurred in connection with the negotiation, preparation, execution or
performance of this Agreement.
13.10. Exhibits. The Exhibits to this Agreement are a material part
hereof and shall be treated as if fully incorporated into the body of the
Agreement.
13.11. Publicity. Except as required by law or on advice of counsel,
neither party shall issue any press release or make any public statement
regarding the transactions contemplated hereby without the prior approval of the
other party.
13.12. Confidential Information. The parties acknowledge that the
transaction described herein is of a confidential nature and shall not be
disclosed except to consultants, advisors and affiliates, or as required by law,
until such time as the parties make a public announcement regarding the
transaction as provided in Section 12.10 Seller and Purchaser shall not make any
public disclosure of the specific terms of this Agreement, except as required by
law.
SELLER: CORPORATE TELECOM SERVICES, INC.
By
----------------------------------------
Its
----------------------------------------
PURCHASER: WESTERN WIRELESS CORPORATION
By /s/ XXX XXXXXXXXX
----------------------------------------
Its President, Western Wireless Corporation
----------------------------------------
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expenses incurred in connection with the negotiation, preparation, execution or
performance of this Agreement.
13.10. Exhibits. The Exhibits to this Agreement are a material part
hereof and shall be treated as if fully incorporated into the body of the
Agreement.
13.11. Publicity. Except as required by law or on advice of counsel,
neither party shall issue any press release or make any public statement
regarding the transactions contemplated hereby without the prior approval of the
other party.
13.12. Confidential Information. The parties acknowledge that the
transaction described herein is of a confidential nature and shall not be
disclosed except to consultants, advisors and affiliates, or as required by law,
until such time as the parties make a public announcement regarding the
transaction as provided in Section 12.10 Seller and Purchaser shall not make any
public disclosure of the specific terms of this Agreement, except as required by
law.
SELLER: CORPORATE TELECOM SERVICES, INC.
By /s/ XXXXXX X. XXXXXXXXX
----------------------------------------
Its President, Corporate Telecom Services
----------------------------------------
PURCHASER: WESTERN WIRELESS CORPORATION
By
----------------------------------------
Its
----------------------------------------
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Exhibits:
Seller's Counsel's Opinion - Exhibit 8.5
Seller's FCC Opinion - Exhibit 8.6
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