1
EXHIBIT 10.41
AGREEMENT FOR PURCHASE AND SALE OF LICENSES
This Agreement for Purchase and Sale of Licenses (the
"Agreement") is entered into as of July 30, 2001 (the "Effective Date") by and
among Leap Wireless International, Inc., a Delaware corporation ("Leap"),
Cricket Licensee IX, Inc., a Delaware corporation and wholly-owned subsidiary of
Leap ("Cricket," and together with Leap, "Sellers"), and Cingular Wireless LLC,
a Delaware limited liability company ("Buyer").
WHEREAS, Leap and Cricket have acquired the authorizations of the
Federal Communications Commission (the "FCC") to construct and operate personal
communication services ("PCS") wireless telecommunications systems ("Systems")
in the Basic Trading Areas ("BTAs") as described on the attached Exhibit A
(referred to herein as the "Provo License", the "Salt Lake City License", or
collectively, the "Licenses");
WHEREAS, Sellers desire to sell, assign and transfer to Buyer,
and Buyer desires to purchase from Sellers, the Licenses on the terms and
subject to the conditions set forth herein; and
WHEREAS, the prior consent of the FCC to the transfer of the
Licenses from Sellers to Buyer is required, and the parties intend that the
transfer of the Licenses contemplated by this Agreement will be consummated only
if such FCC consent to transfer is obtained.
NOW, THEREFORE, in consideration of the mutual covenants herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, each intending to be legally bound,
do hereby agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions. In this Agreement, the following terms have the
meanings specified or referred to in this Section 1.1 and shall be equally
applicable to both the singular and plural forms. Any agreement referred to
below shall mean such agreement as amended, supplemented and modified from time
to time to the extent permitted by the applicable provisions thereof and by this
Agreement.
"Affiliate" of a Person shall mean: (i) any other Person
directly, or indirectly through one or more intermediaries, controlling,
controlled by or under common control with such Person (including, with respect
to Buyer, each of its members) or (ii) any other Person in which such Person
beneficially owns a majority of the outstanding capital stock or equity
interests.
"Communications Act" means the Communications Act of 1934, as
amended.
"Court Order" means any judgment, order, award or decree of any
foreign, federal, state, local or other court or tribunal and any award in any
arbitration proceeding.
2
"Encumbrance" means any lien (including, without limitation, any
tax lien), claim, charge, security interest, mortgage, pledge, easement, right
of first offer or first refusal, conditional sale or other title retention
agreement, defect in title, covenant or other restriction of any kind.
"Expenses" means any fees or expenses incurred in connection with
investigating, defending or asserting any claim, action, suit or proceeding
incident to any matter indemnified against under Article X hereunder (including,
without limitation, court filing fees, court costs, arbitration fees or costs,
witness fees, and reasonable fees and disbursements of legal counsel,
investigators, expert witnesses, consultants, accountants and other
professionals).
"FCC Consent" means the consent of the FCC to the assignment of
the Licenses described herein from Sellers to Buyer.
"Final Order" means an action taken or order issued by the
applicable Governmental Body as to which (i) no request for stay of the action
or order is pending, no such stay is in effect, and, if any deadline for filing
any such request is designated by statute or regulation, it is passed; (ii) no
petition for rehearing or reconsideration of the action or order, or protest of
any kind, is pending before the Governmental Body and the time for filing any
such petition or protest is passed; (iii) the Governmental Body does not have
the action or order under reconsideration or review on its own motion and the
time for such reconsideration or review has passed; and (iv) the action or order
is not then under judicial review, there is no notice of appeal or other
application for judicial review pending, and the deadline for filing such notice
of appeal or other application for judicial review has passed.
"Governmental Body" means any foreign, federal, state, local or
other governmental authority or regulatory body.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1976, as amended.
"HSR Approval" means the expiration or termination of the
applicable waiting period under the HSR Act.
"Losses" means any loss, cost, obligation, liability, settlement
payment, award, judgment, fine, penalty, damage, expense, deficiency or other
charge.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or Governmental Body.
"Requirements of Laws" means any foreign, federal, state and
local laws, statutes, regulations, rules, codes or ordinances enacted, adopted,
issued or promulgated by any Governmental Body or common law that is applicable
to the Licenses, the transactions contemplated in this Agreement or any material
aspect of such transactions.
2
3
ARTICLE II.
PURCHASE AND SALE
2.1 Purchase of Licenses. On the Closing Date, upon the terms
and subject to the representations, warranties and conditions of this Agreement,
Sellers shall sell, transfer, convey, assign, and deliver to Buyer, and Buyer
shall purchase and accept from Sellers, all of Sellers' right, title and
interest in and to the Licenses, free and clear of all Encumbrances.
2.2 Purchase Price Payable at Closing. The aggregate purchase
price (the "Purchase Price") for the Licenses shall be One Hundred Forty Million
Dollars ($140,000,000.00). At the Closing, in exchange for the Licenses, Buyer
shall pay and deliver to Sellers by wire transfer of immediately available funds
to an account designated by Leap, an amount equal to the difference of (i) the
Purchase Price less (ii) the amount of any payment to be made by Buyer directly
to Century Personal Access Network, Inc., a Delaware corporation and
wholly-owned subsidiary of Centurytel, Inc. ("CPAN"), pursuant to Section 2.3
below. The Purchase Price shall be allocated between the Licenses as provided in
Schedule 2.2.
2.3 Release of Security Interest. Leap has granted to CPAN a
security interest in all of the issued and outstanding shares of Cricket
pursuant to the terms of a Promissory Note (the "CPAN Note") and Stock Pledge
Agreement dated April 6, 2001 (the "CPAN Security Agreement") to secure a debt
unrelated to the Licenses (the "CPAN Security Interest"). In the event Leap has
not obtained a full release of the CPAN Security Interest prior to the Closing,
then at least five (5) business days prior to the Closing Date, Leap shall
provide Buyer with instructions to pay directly to CPAN that portion of the
Purchase Price (but in no event shall such amount exceed the Purchase Price)
necessary to cause CPAN's full release of the CPAN Security Interest at the
Closing. Such instructions shall include wire transfer instructions to an
account designated by CPAN. At the Closing, Buyer shall deliver to CPAN by wire
transfer of immediately available funds the payment contemplated by this Section
2.3.
2.4 Excluded Liabilities. Buyer hereby agrees to pay, perform
and discharge, when due and payable, all of the obligations and liabilities
incurred on or after the Closing Date by Buyer arising out of or resulting from
Buyer's ownership and operation of the Licenses. Buyer shall not assume, or
otherwise be responsible for any liabilities, obligations, taxes or indebtedness
of Sellers or any of their Affiliates, whether direct or indirect, liquidated or
unliquidated, known or unknown, whether accrued, absolute, contingent, matured,
unmatured or otherwise, and whether arising out of occurrences prior to, at or
after the date hereof (collectively, the "Excluded Liabilities").
ARTICLE III.
CLOSING
3.1 Closing. The closing of the transfer of the Licenses (the
"Closing") shall occur at the offices of Buyer at 10:00 A.M., local time, on a
date to be specified by Buyer to Leap, which closing date will not be more than
ten (10) business days after the date on which the FCC, and all other state and
federal regulatory authorities with jurisdiction over the Licenses or any
material aspect of the transactions contemplated in this Agreement, if any,
shall have
3
4
consented to the transfer of the Licenses from Cricket and Leap to Buyer by
Final Order, and subject in all respects to the fulfillment or waiver of the
parties' respective conditions to closing set forth in Article VIII and Article
IX, or such other time and place as the parties may agree (such date, the
"Closing Date").
3.2 Closing Deliveries of Buyer. Subject to fulfillment or
waiver of the conditions set forth in Article VIII, at the Closing, Buyer shall
deliver to Leap all of the following:
(a) Immediately available funds in the amount described in
Section 2.2 in accordance with the payment instructions to be provided by
Sellers to Buyer prior to the Closing;
(b) A certificate of good standing of Buyer issued within thirty
(30) days prior to the Closing Date by the Secretary of State of the State of
Delaware;
(c) A certificate of the manager or managing members of Buyer
dated as of the Closing Date, as to the action by the members of Buyer
authorizing the execution, delivery and performance of this Agreement and the
transactions contemplated hereby; and
(d) A certificate of a manager or the managing member of Buyer,
dated the Closing Date, certifying that as of such Closing Date, (i) each
representation and warranty of Buyer contained in this Agreement is true and
correct in all material respects, and if any such representation or warranty of
Buyer is not true or correct in all material respects as of such Closing Date,
such certificate shall include an attached schedule describing in reasonable
detail any and all such inaccuracies, and (ii) Buyer has complied in all
material respects with all of its obligations under this Agreement.
3.3 Closing Deliveries of Cricket and Leap. Subject to
fulfillment or waiver of the conditions set forth in Article IX, at the Closing,
Sellers shall deliver to Buyer all of the following:
(a) A certificate of an officer of each of Cricket and Leap,
dated the Closing Date, certifying that as of such Closing Date, (i) each
representation and warranty of Cricket or Leap, as the case may be, contained in
this Agreement is true and correct in all material respects, and if any such
representation or warranty of Cricket or Leap, as the case may be, is not true
or correct in all material respects as of such Closing Date, such certificate
shall include an attached schedule describing in reasonable detail any and all
such inaccuracies, and (ii) Cricket or Leap, as the case may be, has complied in
all material respects with all of its obligations under this Agreement;
(b) A certificate of the Secretary of each of Cricket and Leap
dated as of the Closing Date, as to the resolutions of the Board of Directors of
Cricket or Leap authorizing the execution, delivery and performance of this
Agreement and the transactions contemplated hereby;
4
5
(c) An executed assignment and assumption agreement transferring
the Licenses to Buyer, in the form set forth on Exhibit B attached hereto; and
(d) An opinion of Sellers' legal counsel, dated as of the
Closing Date, covering the matters set forth on Exhibit C attached hereto.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF SELLERS
Except as set forth in Sellers' Disclosure Schedule to the
Agreement, Sellers hereby jointly and severally represent and warrant to Buyer
that the statements contained in this Article IV are true and correct as of the
date of this Agreement (unless otherwise indicated in such representation):
4.1 Organization of Sellers. Each of the Sellers is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. Each of the Sellers is duly qualified and in good
standing as a foreign corporation in each of the jurisdictions where such
qualification is required by law, except for the failure of which would not
impair or otherwise affect Buyer's right to own and operate the Licenses or
would not be reasonably likely to materially delay or materially impair Sellers'
ability to consummate the transactions contemplated by this Agreement.
4.2 Authority of Cricket and Leap; Enforceability.
(a) Cricket has the full corporate power and authority to own
the Salt Lake City License. Leap has the full corporate power and authority to
own the Provo License. Each of Cricket and Leap has the full corporate power and
authority to execute, deliver and perform this Agreement and any agreement,
document or instrument executed and delivered pursuant to this Agreement or in
connection with this Agreement. The execution, delivery and performance of this
Agreement and any agreement, document or instrument executed and delivered
pursuant to this Agreement or in connection with this Agreement by Cricket or
Leap, as the case may be, has been duly authorized and approved by all necessary
corporate action of Cricket or Leap, as the case may be.
(b) This Agreement is the legal, valid and binding obligation of
each of Cricket and Leap, enforceable against each of them in accordance with
its terms except for the effect thereon of any applicable bankruptcy,
insolvency, reorganization, moratorium, and similar laws affecting the rights of
creditors generally, and general principles of equity.
4.3 No Conflicts. Except for the FCC Consent and HSR Approval,
neither the execution and delivery of this Agreement nor the consummation of any
of the transactions contemplated hereby nor compliance with or fulfillment of
the terms, conditions and provisions hereof will:
5
6
(a) Violate or conflict with, result in a breach of the terms,
conditions or provisions of, or constitute a default, an event of default or an
event creating rights of acceleration, termination, modification or cancellation
or a loss of rights under, or require any notice to, authorization or approval
of, filing with or consent under: (1) the certificate of incorporation or bylaws
of Cricket or Leap; (2) any note, indenture, instrument, agreement, mortgage,
lease, license, franchise, permit or other authorization, right restriction or
obligation to which Cricket or Leap is a party or any of its properties is
subject or by which Cricket or Leap is bound, except for the occurrence of which
would not impair or otherwise affect Buyer's right to own and operate the
Licenses or would not be reasonably likely to materially delay or materially
impair Sellers' ability to consummate the transactions contemplated by this
Agreement; (3) any Court Order to which Cricket or Leap is a party or by which
it is bound; or (4) any Requirements of Laws affecting Cricket or Leap.
(b) Require the approval, consent, authorization or act of, or
the making by Cricket or Leap of any declaration, filing or registration with
any Person.
4.4 The Licenses; Build-Out of Licenses.
(a) Each of the Sellers has all state, local and Federal
Aviation Administration permits, licenses, franchises, variances, exemptions,
orders, operating rights and other state, local and Federal Aviation
Administration governmental authorizations, consents and approvals, if any,
necessary to conduct their business as presently conducted, except for those the
absence of which would not impair or otherwise affect Buyer's right to own and
operate the Licenses or would not be reasonably likely to materially delay or
materially impair Sellers' ability to consummate the transactions contemplated
by this Agreement.
(b) Sellers have performed as of the Effective Date, and will
have performed as of the Closing Date, all of their respective obligations
required to have been performed under the Licenses as of such dates. No event
has occurred or condition or state of facts exists which constitutes or, after
notice or lapse of time or both, would constitute a breach or default under the
Licenses which permits or, after notice or lapse of time or both, would permit
revocation or termination of the Licenses, or which might adversely affect the
rights of Sellers under the Licenses. The Licenses are valid and in full force
and effect. The Licenses may be assigned and transferred to Buyer in accordance
with this Agreement and will continue in full force and effect thereafter, in
each case (1) upon the release of the CPAN Security Interest, without the
occurrence of any breach, default or forfeiture of rights thereunder, or (2)
except for the FCC Consent and HSR Approval, without the consent, approval, or
act of, or the making of any filing with, any Governmental Body. The Licenses
(i) were granted on the grant date specified on Exhibit A and (ii) expire on the
expiration dates specified on Exhibit A.
(c) Leap and Cricket have each submitted to the FCC a Form 601
dated July 12, 2001, FCC File Nos. 0000000000 and 0000522880, respectively,
(each, a "Form 601") to timely notify the FCC of their satisfaction of the five-
and ten-year construction benchmarks applicable to the Licenses as mandated by
Section 24.203 of the FCC rules. To the best of
6
7
Sellers' knowledge, the factual assertions of the Sellers' in each Form 601 are
true and correct in all material respects.
(d) The FCC has consented to Cricket holding the Salt Lake City
License. Leap is qualified under the FCC's rules and the Communications Act to
hold and convey the Licenses.
4.5 Title to Licenses. Leap has good and marketable title to the
Provo License, free and clear of all Encumbrances. Cricket has good and
marketable title to the Salt Lake City License, free and clear of all
Encumbrances (except for the CPAN Security Interest). Upon delivery to Buyer on
the Closing Date, Cricket and Leap will transfer to Buyer good and marketable
title to the Licenses, subject to no indebtedness or Encumbrances.
4.6 No Violation, Litigation or Regulatory Action. Except for
the FCC Consent and HSR Approval, Sellers have complied in all material respects
with all Requirements of Law which are applicable to the Licenses. As of the
date hereof, Sellers have made all regulatory filings required, and paid all
fees and assessments imposed, by any Governmental Body, and all such filings and
the calculation of such fees, are accurate in all material respects, except
where the failure to make such filing or pay such fees or assessments would not
have a material adverse effect on the Licenses. There is no investigation,
claim, action, suit or other proceeding pending or, to the best knowledge of
Cricket or Leap, threatened against Cricket or Leap, relating to Cricket, Leap
or the Licenses which, if adversely determined, would result in the revocation,
cancellation, suspension or adverse modification of the Licenses, or which is
reasonably likely to prevent the consummation of the transactions contemplated
hereby, nor is Cricket or Leap aware of any reasonable basis for any such
investigation, claim, action, suit or proceeding.
4.7 No Finder. Except for Xxxxxxxxxx Capital Corporation, to
which any and all obligations relating to the sale of the Licenses hereunder
will be satisfied solely by the Sellers, no broker or finder has acted on behalf
of Cricket or Leap in connection with the transactions contemplated hereby.
4.8 CPAN Note. To the best of Sellers' knowledge, CPAN has not
assigned the CPAN Note. Leap is not in default under the CPAN Note or CPAN
Security Agreement.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represent and warrant to Sellers that the
statements contained in this Article V are true and correct as of the date of
this Agreement (unless otherwise indicated in such representation):
5.1 Organization of Buyer. Buyer is a limited liability company,
duly organized, validly existing and in good standing under the laws of the
State of Delaware.
5.2 Authority of Buyer; Enforceability.
7
8
(a) Buyer has the full limited liability company power and
authority to execute, deliver and perform this Agreement and any agreement,
document or instrument executed and delivered pursuant to this Agreement or in
connection with this Agreement. The execution, delivery and performance of this
Agreement and any agreement, document or instrument executed and delivered
pursuant to this Agreement or in connection with this Agreement by Buyer have
been duly authorized and approved by all necessary limited liability company
actions on the part of Buyer. (b) This Agreement is the legal, valid and binding
agreement of Buyer, enforceable against Buyer in accordance with its terms
except for the effect thereon of any applicable bankruptcy, insolvency,
reorganization, moratorium, and similar laws affecting the rights of creditors
generally, and general principles of equity.
5.3 No Conflicts. Except for the FCC Consent and HSR Approval,
neither the execution and delivery of this Agreement nor the consummation of any
of the transactions contemplated hereby nor compliance with or fulfillment of
the terms, conditions and provisions hereof will:
(a) Violate or conflict with, result in a breach of the terms,
conditions or provisions of, or constitute a default, an event of default or an
event creating rights of acceleration, termination, modification or cancellation
or a loss of rights under, or require any notice to, authorization or approval
of, filing with or consent under: (1) the certificate of formation or operating
agreement of Buyer; (2) any note, indenture, instrument, agreement, mortgage,
lease, license, franchise, permit or other authorization, right restriction or
obligation to which Buyer is a party or any of its properties is subject or by
which Buyer is bound, except for the occurrence of which would not be reasonably
likely to materially delay or materially impair Buyer's ability to consummate
the transactions contemplated by this Agreement; (3) any Court Order to which
Buyer is a party or by which it is bound; or (4) any Requirements of Laws
affecting Buyer.
(b) Require the approval, consent, authorization or act of, or
the making by Buyer of any declaration, filing or registration with any Person.
5.4 No Finder Fees. No broker or finder has acted on behalf of
Buyer in connection with the transactions contemplated hereby.
5.5 Litigation. There is no investigation, claim, action, suit
or other proceeding pending or, to the knowledge of Buyer, threatened against
Buyer, which is reasonably likely to prevent the consummation of the
transactions contemplated hereby, nor is Buyer aware of any reasonable basis for
any such investigation, claim, suit or proceeding.
5.6 Qualification. Buyer (or its assignee in the event of an
assignment pursuant to Section 12.4) is (i) legally qualified to hold and
receive FCC licenses generally and (ii) assuming the satisfaction of the
construction benchmarks applicable to the Licenses as mandated by Section 24.203
of the FCC rules, legally qualified to hold and receive the Licenses. Buyer (or
its assignee in the event of an assignment pursuant to Section 12.4) is legally
qualified to receive any authorization or approval from any state or local
regulatory authority necessary for it to acquire the Licenses. Buyer (or its
assignee in the event of an assignment pursuant to
8
9
Section 12.4) is in compliance with Section 310(b) of the Communications Act,
and all rules, regulations or policies of the FCC promulgated thereunder with
respect to alien ownership.
ARTICLE VI.
ACTION PRIOR TO THE CLOSING DATE
The parties hereto covenant and agree to take the following
actions between the date hereof and the Closing Date:
6.1 Investigation by Buyer. Sellers shall furnish to Buyer or
its authorized representatives such information concerning the Licenses and
Sellers as shall be reasonably requested, including all such information as
shall be necessary to enable Buyer or its authorized representatives to verify
the accuracy of the representations and warranties contained in this Agreement,
to verify that the covenants of Sellers contained in this Agreement have been
complied with and to determine whether the conditions set forth in Article VIII
have been satisfied. No investigation made by Buyer or its authorized
representatives hereunder shall affect the representations and warranties of
Sellers hereunder.
6.2 Investigation by Sellers. Buyer shall furnish to Sellers or
their authorized representatives such information concerning Buyer as shall be
reasonably requested, including all such information as shall be necessary to
enable Sellers or their authorized representatives to verify the accuracy of the
representations and warranties contained in this Agreement, to verify that the
covenants of Buyer contained in this Agreement have been complied with and to
determine whether the conditions set forth in Article IX have been satisfied. No
investigation made by Sellers or their authorized representatives hereunder
shall affect the representations and warranties of Buyer hereunder.
6.3 Preserve Accuracy of Representations and Warranties. Each of
the parties hereto shall refrain from taking any action that would render any
representation or warranty contained in this Agreement inaccurate in any
material respect as of the Closing Date. Each party shall promptly notify the
other in writing (a) of any action, suit or proceeding that shall be instituted
or threatened against such party to restrain, prohibit or otherwise challenge
the legality of any transaction contemplated by this Agreement, (b) of any
development causing a breach of any of the representations and warranties of
such party in Articles IV or V above, as applicable, or (c) of any lawsuit,
claim, proceeding or investigation that may be threatened, brought, asserted or
commenced against such party which would have been disclosed if such lawsuit,
claim, proceeding or investigation had arisen prior to the date hereof. No
disclosure by any party pursuant to this Section 6.3, however, shall be deemed
to amend or supplement this Agreement or to prevent or cure any
misrepresentation, breach of warranty or breach of covenant therein.
6.4 Consents of Third Parties; Governmental Approvals.
(a) Consents. Sellers will act diligently and reasonably to
secure, before the Closing Date, any consent, approval or waiver, in form and
substance reasonably satisfactory to Buyer, from any party as required to be
obtained to assign the Licenses to Buyer or to otherwise satisfy the conditions
set forth herein; provided that neither Cricket nor Leap shall make any
9
10
agreement or understanding affecting the Licenses as a condition for obtaining
any such consent, approval or waiver except with the prior written consent of
Buyer. During the period prior to the Closing Date, Buyer shall act diligently
and reasonably to cooperate with Sellers to obtain the consents, approvals and
waivers contemplated by this Section 6.4(a); provided that Buyer shall have no
obligation to offer or pay any consideration in order to obtain any such consent
or approval (other than as provided in Section 2.3).
(b) FCC Consents. Buyer and Sellers shall, as promptly as
practicable following the date of this Agreement, but in no event later than ten
(10) business days, file with the FCC an FCC Form 603 (or other appropriate
form) application seeking consent to assign the Licenses from Sellers to Buyer.
The parties shall cooperate and use their respective reasonable efforts to
prosecute such application to a favorable conclusion and shall each bear their
own costs for such filings.
(c) HSR Filing. As soon as reasonably practicable following the
execution and delivery of this Agreement, but in no event later than fifteen
(15) business days, the parties will take such action, if any, as may be
required to be taken by them under the HSR Act in connection with the
transactions contemplated hereby. Each party will cooperate in the preparation
of, and will file complete and accurate notification and report forms with
respect to the transactions contemplated hereby, pursuant to the HSR Act and the
rules and regulations promulgated thereunder, and will file on a timely basis
such additional information and documentary materials as may be requested by any
Governmental Body pursuant to the HSR Act. Each party will request early
termination of the waiting period under the HSR Act. Each party shall promptly
inform the other of any inquiries or communications from any such Governmental
Body. Each party shall respond with reasonable diligence and dispatch to any
request for additional information made in response to such filings. Each party
shall pay its respective costs of compliance with the HSR Act, except that Buyer
shall pay the Federal Trade Commission filing fee for any required filing under
the HSR Act.
ARTICLE VII.
ADDITIONAL AGREEMENTS
7.1 Reasonable Efforts; Obligations of Buyer and Cricket.
Subject to the terms and conditions herein, each of the parties hereto agrees to
use all commercially reasonably efforts to take, or cause to be taken, all
actions, 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 transactions contemplated by this Agreement as promptly as
practicable. In case at any time after the Closing any further action is
reasonably necessary to carry out the purposes of this Agreement, the proper
agents, officers and directors of each party hereto shall take such action.
ARTICLE VIII.
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER
The obligations of Buyer under this Agreement shall be, at the
option of Buyer, subject to the satisfaction of the conditions set forth below,
on or prior to the Closing Date.
10
11
These conditions are solely for the benefit of Buyer and may be waived by Buyer
at any time in its sole discretion; provided, however, Buyer's election to waive
the closing condition set forth in Section 8.5 shall not result in any failure
or breach of any representation, warranty or covenant made by Leap or Cricket in
this Agreement.
8.1 No Misrepresentation or Breach of Covenants and Warranties.
There shall have been no material breach by Sellers in the performance of any of
their covenants and agreements herein; each of the representations and
warranties of Sellers contained or referred to herein shall be true and correct
in all material respects without regard to any inaccuracies described in the
schedule, if any, to the certificate delivered by Sellers pursuant to Section
3.3(a) on the Closing Date as though made on and as of the Closing Date, except
for changes therein specifically permitted by this Agreement or resulting from
any transaction expressly consented to in writing by Buyer.
8.2 No Restraint or Litigation. No action, suit, investigation
or proceeding (except for any action, suit, investigation or proceeding relating
to FCC matters, which shall be governed solely by the condition set forth in
Section 8.3) shall have been instituted to restrain or prohibit or otherwise
challenge the legality or validity of the transactions contemplated hereby, or
which would materially adversely affect the right of Buyer to own and control
the Licenses following the Closing.
8.3 FCC Consent and HSR Approval. The FCC shall have consented
by Final Order to the assignment of the Licenses to Buyer, without any material
adverse conditions imposed on Buyer as a condition to transfer. The applicable
waiting period under the HSR Act, if applicable, shall have expired or been
terminated.
8.4 Necessary Consents. Sellers shall have delivered all third
party consents required for Sellers to consummate the transaction contemplated
by this Agreement.
8.5 CPAN Security Interest. Leap shall have obtained the release
of the CPAN Security Interest or otherwise received the written consent of CPAN
to the sale of the Salt Lake City License free and clear to Buyer.
8.6 Closing Deliveries. Each of the Sellers shall have made all
of its Closing Deliveries described in Section 3.3.
8.7 Unjust Enrichment. If the FCC makes a determination that
Buyer is not a "small business" or is not otherwise eligible to receive the
benefit of the 25% bidding credit that Sellers received in the FCC auction with
respect to the Licenses or the FCC otherwise takes action to cause Sellers to
refund to the FCC all or a portion of the 25% bidding credit which Sellers
received in the FCC auction, then Sellers shall have (i) delivered to Buyer a
copy of the FCC's written request with respect to such amounts required to be
refunded as a result thereof, (ii) refunded such amounts to the FCC, and (iii)
delivered to Buyer a copy of Sellers' wire transfer confirmation or other
evidence of payment of such refund to the FCC.
11
12
ARTICLE IX.
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLERS
The obligations of Sellers under this Agreement shall be, at the
option of Sellers, subject to the satisfaction of the conditions set forth
below, on or prior to the Closing Date. These conditions are solely for the
benefit of Sellers and may be waived by Sellers at any time in their sole
discretion.
9.1 No Misrepresentation or Breach of Covenants and Warranties.
There shall have been no material breach by Buyer in the performance of any of
its covenants and agreements herein; each of the representations and warranties
of Buyer contained or referred to herein shall be true and correct in all
material respects without regard to any inaccuracies described in the schedule,
if any, to the certificate delivered by Buyer pursuant to Section 3.2(d) on the
Closing Date as though made on and as of the Closing Date, except for changes
therein specifically permitted by this Agreement or resulting from any
transaction expressly consented to in writing by Cricket.
9.2 No Restraint or Litigation. No action, suit, investigation
or proceeding (except for any action, suit, investigation or proceeding relating
to FCC matters, which shall be governed solely by the condition set forth in
Section 9.3) shall have been instituted to restrain or prohibit or otherwise
challenge the legality or validity of the transactions contemplated hereby, or
which would materially adversely affect the right of Buyer to own and control
the Licenses following the Closing.
9.3 FCC Consent and HSR Approval. The FCC shall have granted its
consent by Final Order to transfer the Licenses from Sellers to Buyer, without
any material adverse conditions imposed on Sellers as a condition to transfer.
The applicable waiting period under the HSR Act, if applicable, shall have
expired or been terminated.
9.4 Closing Deliveries. Buyer shall have made all of its Closing
Deliveries described in Section 3.2.
ARTICLE X.
INDEMNIFICATION
10.1 Survival. All of the representations and warranties of the
parties contained in Article IV or Article V shall survive the Closing hereunder
(even if the other party knew or had reason to know of any misrepresentation or
breach of warranty at the time of such Closing, unless the other party expressly
waives in writing any such breach at or before the time of such Closing) and
shall continue in full force and effect until the eighteen (18) month
anniversary of the Closing Date, except that the representations and warranties
set forth in Sections 4.2, 4.5, 5.2 and 5.6 shall survive the Closing and
continue in full force and effect forever thereafter.
10.2 Indemnification by Cricket and Leap. In the event (i)
Cricket or Leap breaches (or in the event any third party alleges facts that, if
true, would mean Cricket or Leap has breached) any of its representations,
warranties, or covenants contained herein and, if there is
12
13
an applicable survival period pursuant to Section 10.1 above and Buyer makes a
written claim against Cricket or Leap, as the case may be, within such period,
or (ii) in the event of any actual or threatened claim, action, suit or
proceeding (including, without limitation, an FCC enforcement action) (a)
against Buyer or any of its Affiliates arising from Sellers' ownership of the
Licenses prior to the Closing or (b) arising out of, or based upon, any Excluded
Liability, if such actual or threatened claim, action, suit or proceeding
(including, without limitation, an FCC enforcement action) arises out of or
results from Buyer's entering into this Agreement and consummating the
transactions contemplated hereby, then Cricket and Leap shall jointly and
severally indemnify Buyer and its Affiliates and their respective directors,
officers, agents, successors and assigns from and against the entirety of any
Losses or reasonable Expenses any such person may incur prior to, through and
after the date of the claim for indemnification resulting from, arising out of,
relating to, in the nature of, or caused by the breach (or the alleged breach),
or such claim, action, suit or proceeding. For purposes of clause (ii)(b) of
this Section 10.2, if any Excluded Liability also is a breach by Sellers of any
of their representations, warranties or covenants contained in this Agreement,
Buyer's right to indemnification, if any, in respect of such Excluded Liability
shall be governed solely by the right to indemnification set forth in Section
10.2(i) and shall be subject to the limitations thereon included in this Article
X.
10.3 Indemnification by Buyer. In the event Buyer breaches (or
in the event any third party alleges facts that, if true, would mean Buyer has
breached) any of its representations, warranties, or covenants contained herein
and, if there is an applicable survival period pursuant to Section 10.1 above
and Cricket or Leap makes a written claim against Buyer within such period, or
in the event of any actual or threatened claim, action, suit or proceeding
(including, without limitation, an FCC enforcement action) against Cricket or
Leap or any or their Affiliates arising from Buyer's ownership or operation of
the Licenses following the Closing, then Buyer shall indemnify Cricket and Leap
and their Affiliates and their respective directors, officers, agents,
successors and assigns from and against the entirety of any Losses or reasonable
Expenses any such person may incur prior to, through and after the date of the
claim for indemnification resulting from, arising out of, relating to, in the
nature of, or caused by the breach (or the alleged breach), or such claim,
action, suit or proceeding.
10.4 Certain Limitations. Notwithstanding any provision of any
other Section of this Agreement to the contrary, the maximum aggregate liability
of Sellers pursuant to their indemnification obligations under Section 10.2
shall not exceed One Hundred Forty Million Dollars ($140,000,000.00), and the
maximum aggregate liability of Buyer pursuant to its indemnification obligations
under Section 10.3 shall not exceed One Hundred Forty Million Dollars
($140,000,000.00). Notwithstanding the above, the limitation in the first
sentence of this Section 10.4 shall not apply to (a) indemnification for any
Excluded Liability under Section 10.2(ii)(b) or (b) indemnification for any
breach by Sellers of any of the representations and warranties contained in
Section 4.2(a) or Section 4.5, but only if any such Excluded Liability or breach
of representation or warranty that is referred to in clause (a) or clause (b) of
this Section 10.4 does not arise out of or result from any challenge, action,
suit, proceeding or other act that is either disclosed in this Agreement, or
brought on or after the date of this Agreement, which challenges the right of
either Seller to hold the Licenses under applicable FCC rules, laws or
regulations. Further, notwithstanding the above, the limitation in the first
sentence of this
13
14
Section 10.4 shall not apply to the indemnification rights of Sellers for Losses
and reasonable Expenses resulting from any breach by Buyer of any of the
representations and warranties contained in Section 5.2(a) or Section 5.6.
Except (i) in the case of a willful breach of this Agreement or (ii) for
consequential damages of a third party arising from any Excluded Liability
(which consequential damages are paid by Buyer in respect of a judgment against
Buyer, or a settlement by Buyer approved by Leap, and for which Sellers are
obligated to indemnify Buyer pursuant to Section 10.2), no Indemnified Party (as
defined below) shall be entitled to receive any special, punitive, incidental or
consequential damages.
10.5 Notice of Claims.
(a) Any party (the "Indemnified Party") seeking indemnification
under this Article X shall give to the party obligated to provide
indemnification to such Indemnified Party (the "Indemnitor") a notice (a "Claim
Notice") describing in reasonable detail the facts giving rise to any claim for
indemnification hereunder and shall include in such Claim Notice (if then known)
the amount or the method of computation of the amount of such claim, and a
reference to the provision of this Agreement or any agreement, document or
instrument executed pursuant hereto or in connection herewith upon which such
claim is based; provided, that a Claim Notice in respect of any action at law or
suit in equity by or against a third Person as to which indemnification will be
sought shall be given promptly after the action or suit is commenced; provided
further that failure to give such notice shall not relieve the Indemnitor of its
obligations hereunder except to the extent it shall have been prejudiced by such
failure.
(b) Subject to Section 10.4, after the giving of any Claim
Notice pursuant hereto, the amount of indemnification to which an Indemnified
Party shall be entitled under this Article X shall be determined: (i) by the
written agreement between the Indemnified Party and the Indemnitor; or (ii) by
an award from an arbitrator pursuant to Section 12.10 hereof or by a final
judgment or decree of any court of competent jurisdiction upholding such an
award from an arbitrator. Except as provided in the first sentence of Section
12.10, the parties shall proceed in the manner and subject to the limitations in
this Article X with respect to all matters covered by Section 10.2 and Section
10.3. The Indemnified Party shall have the burden of proof in establishing the
amount of Losses and Expenses suffered by it.
10.6 Third Person Claims.
(a) Subject to Section 10.6(b), the Indemnified Party shall have
the right to conduct and control, through counsel of its choosing, the defense,
compromise or settlement of any third Person claim, action or suit against such
Indemnified Party as to which indemnification will be sought by any Indemnified
Party from any Indemnitor hereunder, and in any such case the Indemnitor shall
cooperate in connection therewith and shall furnish such records, information
and testimony and attend such conferences, discovery proceedings, hearings,
trials and appeals as may be reasonably requested by the Indemnified Party in
connection therewith; provided, that the Indemnitor may participate, through
counsel chosen by it and at its own expense, in the defense of any such claim,
action or suit as to which the Indemnified Party has so elected to conduct and
control the defense thereof; and provided, further, that the Indemnified
14
15
Party shall not, without the written consent of the Indemnitor (which written
consent shall not be unreasonably withheld), pay, compromise or settle any such
claim, action or suit, except that no such consent shall be required if,
following a written request from the Indemnified Party, the Indemnitor shall
fail, within fourteen (14) days after the making of such request, to acknowledge
and agree in writing that, if such claim, action or suit shall be adversely
determined, such Indemnitor has an obligation to provide indemnification
hereunder to such Indemnified Party. Notwithstanding the foregoing, the
Indemnified Party shall have the right to pay, settle or compromise any such
claim, action or suit without such consent, provided that in such event the
Indemnified Party shall waive any right to indemnity hereunder unless such
consent is unreasonably withheld.
(b) If any third Person claim, action or suit against any
Indemnified Party is solely for money damages, then the Indemnitor shall have
the right to conduct and control, through counsel of its choosing, the defense,
compromise or settlement of any such third Person claim, action or suit against
such Indemnified Party as to which indemnification will be sought by any
Indemnified Party from any Indemnitor hereunder if the Indemnitor has
acknowledged and agreed in writing that, if the same is adversely determined,
the Indemnitor has an obligation to provide indemnification to the Indemnified
Party in respect thereof, and in any such case the Indemnified Party shall
cooperate in connection therewith and shall furnish such records, information
and testimony and attend such conferences, discovery proceedings, hearings,
trials and appeals as may be reasonably requested by the Indemnitor in
connection therewith; provided, that the Indemnified Party may participate,
through counsel chosen by it and at its own expense, in the defense of any such
claim, action or suit as to which the Indemnitor has so elected to conduct and
control the defense thereof. Notwithstanding the foregoing, the Indemnified
Party shall have the right to pay, settle or compromise any such claim, action
or suit, provided that in such event the Indemnified Party shall waive any right
to indemnity therefor hereunder unless the Indemnified Party shall have sought
the consent of the Indemnitor to such payment, settlement or compromise and such
consent was unreasonably withheld, in which event no claim for indemnity
therefor hereunder shall be waived.
10.7 Amount of Indemnification Payments. In calculating any Loss
or Expense there shall be deducted any insurance recovery in respect thereof
(and no right of subrogation shall accrue hereunder to any insurer).
ARTICLE XI.
TERMINATION
11.1 Termination. Anything contained in this Agreement to the
contrary notwithstanding, this Agreement may be terminated:
(a) By the mutual written consent of Leap and Buyer;
(b) By either Leap or Buyer upon written notice to the other, in
the event the other party (the "Breaching Party") has materially breached its
representations, warranties or covenants contained in this Agreement and failed
to cure such breach within 30-days from the date of the Breaching Party's
receipt of the Termination Notice specified in this subsection;
15
16
provided, however, that the party claiming such breach (i) is not itself in
material breach of its representations, warranties or covenants contained
herein, (ii) promptly notifies the Breaching Party in writing (the "Termination
Notice") of its intention to exercise its rights under this Agreement as a
result of the breach, and (iii) specifies in such Termination Notice the
representation, warranty or covenant of which the Breaching Party is allegedly
in material breach;
(c) By either Leap or Buyer upon written notice to the other,
upon the other party's filing, or the other party having filed against it and
remaining pending for more than thirty (30) days, a petition under Title 11 of
the United States Code or similar state law provision seeking protection from
creditors or the appointment of a trustee, receiver or debtor in possession;
(d) By either Leap or Buyer upon written notice to the other, if
a court of competent jurisdiction or Governmental Body shall have issued an
order, decree or ruling permanently restraining, enjoining or otherwise
prohibiting the transactions contemplated by this Agreement, and such order,
decree, ruling or other action shall have become final and non-appealable;
(e) By either Leap or Buyer upon twenty (20) days' prior written
notice of such termination, if the Closing shall not have occurred on or before
the one (1) year anniversary of the Effective Date of this Agreement; or
(f) By either Leap or Buyer upon written notice to the other, in
the event of a determination described in the first paragraph of Seller's
Disclosure Schedule, and Leap or Cricket have not remedied such determination
within 120 days after the date of such determination.
11.2 Effect of Termination. In the event of termination of this
Agreement by either party, except as otherwise provided herein, all rights and
obligations of the parties under this Agreement shall terminate without any
liability of any party to any other party (except for any liability of any party
then in breach of its covenants, representations or warranties hereunder). The
provisions of Sections 11.2, 12.1, 12.3, 12.5, 12.6, 12.7, 12.8, 12.10, 12.11,
and 12.12 shall expressly survive the expiration or termination of this
Agreement.
ARTICLE XII.
GENERAL PROVISIONS
12.1 Confidential Nature of Information. Each party will treat
as confidential all documents, materials and other information which it shall
have obtained regarding the other party during the course of the negotiations
leading to the consummation of the transactions contemplated hereby (whether
obtained before or after the date of this Agreement), the investigation provided
for herein, and the preparation of this Agreement and other related documents,
all in accordance with the terms of the Non-Disclosure Agreement ("NDA") dated
March 6, 2001 by and between Leap and Buyer.
16
17
12.2 No Public Announcement; Press Releases. No party shall,
without the approval of the other, make any press release or other public
announcement concerning the transactions contemplated by this Agreement, except
as and to the extent that any such party shall be so obligated by law, in which
case the other party shall be advised and the parties shall use their reasonable
efforts to cause a mutually agreeable release or announcement to be issued;
provided that the foregoing shall not preclude communications or disclosures
necessary to implement the provisions of this Agreement, to comply with
accounting and Securities and Exchange Commission disclosure obligations or
applicable FCC disclosure obligations; and provided further Leap and Buyer each
hereby consent to the other party issuing a press release in a mutually
agreeable form with respect to this Agreement promptly after the execution of
this Agreement.
12.3 Notices. All notices, certifications, requests, demands,
payments and other communications hereunder shall be in writing and shall be
deemed to have been duly given and delivered if by overnight delivery, by a
nationally-recognized carrier; if by mail, by first class certified mail,
postage prepaid, or delivered personally; or if sent by facsimile, with
transmission confirmed by a printout from the facsimile machine and
simultaneously followed by the original communications by first class certified
mail, postage prepaid:
If to Cricket or Leap:
Leap Wireless International, Inc.
Cricket Licensee IX, Inc.
00000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Legal Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Buyer:
Cingular Wireless LLC
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx, 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to (which shall not constitute notice):
Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
17
18
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address or addresses as may hereafter be specified by notice
given by any of the above to the others. Notices given by United States
certified mail as aforesaid shall be effective on the third business day
following the day on which they were deposited in the mail. Notices delivered in
person or by overnight courier shall be effective upon delivery. Notices given
by facsimile shall be effective when transmitted, provided facsimile notice is
confirmed by telephone and is transmitted on a business day during regular
business hours.
12.4 Successors and Assigns. The rights of any party under this
Agreement shall not be assignable by such party hereto prior to the Closing
without the written consent of the other party; provided, however, Buyer may,
without the prior consent of Sellers, assign its rights hereunder to receive the
Licenses to (a) any Affiliate of Buyer, (b) any successor of all or
substantially all of Buyer's business by way of merger, consolidation,
liquidation, purchase of assets of Buyer or other form of acquisition or other
form of reorganization or (c) any lender of Buyer as collateral, but no such
assignment shall relieve Buyer of any of its obligations to Sellers hereunder;
and provided further, each Seller may, without the prior consent of Buyer,
assign to any successor of all or substantially all of such Seller's business by
way of merger, consolidation, liquidation, purchase of assets of such Seller or
other form of acquisition or other form of reorganization, its rights hereunder
to sell the Licenses, but no such assignment shall relieve Sellers of any of
their obligations to Buyer hereunder. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their successors and permitted
assigns.
12.5 Entire Agreement; Amendments. Except for the NDA referenced
in Section 12.1, which shall continue in full force and effect and shall be
binding upon the parties for the full length of its terms, this Agreement and
the Exhibits and Schedules referred to herein (which are incorporated herein and
made a part of this Agreement by reference) and the documents delivered pursuant
hereto contain the entire understanding of the parties hereto with regard to the
subject matter contained herein or therein, and supersede all prior agreements
or understandings among Buyer and Sellers, with respect to the transactions
contemplated herein. This Agreement shall not be amended, modified or
supplemented except by a written instrument signed by authorized representatives
of Buyer and Sellers.
12.6 Waivers. Any failure of Buyer or Sellers to comply with any
obligation, covenant, agreement or condition herein may be waived by the other
party only by a written instrument signed by Buyer or Sellers, as applicable,
granting such waiver, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure.
12.7 Expenses. Except as otherwise set forth in this Agreement,
each party hereto will pay all of its own costs and expenses incident to its
negotiation and preparation of this Agreement and the consummation of the
transactions contemplated hereby, including the fees, expenses and disbursements
of its counsel and advisors. In the event any party shall bring an
18
19
action or arbitration in connection with the performance, breach or
interpretation of this Agreement, the prevailing party in any such action or
arbitration shall be entitled to recover from the losing party all reasonable
costs and expenses of such action or arbitration, including attorneys' fees.
12.8 Partial Invalidity; Construction. Wherever possible, each
provision hereof shall be interpreted in such manner as to be effective and
valid under applicable law, but in case any one or more of the provisions
contained herein shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such provision shall be ineffective to the extent,
but only to the extent, of such invalidity, illegality or unenforceability
without invalidating the remainder of such provision or provisions or any other
provisions hereof, unless such a construction would be unreasonable; provided,
however, that if the removal of such offending term or provision materially
alters the burdens or benefits of any of the parties under this Agreement, the
parties agree to negotiate in good faith such modifications to this Agreement as
are appropriate to ensure the burdens and benefits of each party under such
modified Agreement are reasonably comparable to the burdens and benefits
originally contemplated and expected. The parties agree that this Agreement
shall be construed neutrally, without regard to the party responsible for its
preparation.
12.9 Execution in Counterparts. This Agreement may be executed
in one or more counterparts which may be delivered by facsimile, each of which
shall be considered an original instrument, but all of which shall be considered
one and the same agreement, and shall become binding when one or more
counterparts have been signed by each of the parties hereto and delivered to
each of the other parties hereto.
12.10 Resolution of Disputes. Except with respect to a breach of
the obligations of confidentiality and actions detrimental to the assignment and
acquisition of the Licenses contemplated hereunder, as to which the
non-breaching party shall have the right to seek from any court of proper
jurisdiction specific performance, injunctive remedy or other equitable
remedies, any dispute, claim or controversy arising under this Agreement or in
any way related to this Agreement, or its interpretation, enforceability or
inapplicability (including the issue of whether or not the arbitrator has
jurisdiction to decide any particular dispute, controversy or claim) will be
submitted to binding arbitration at the election of either Buyer or Leap. The
arbitration shall be conducted by a single arbitrator experienced in the nature
of the commercial matters at issue and selected by Leap and Buyer in accordance
with the Commercial Arbitration Rules of the American Arbitration Association.
The arbitration shall be conducted in New York City in accordance with the
Commercial Arbitration Rules of the American Arbitration Association. The
arbitration award shall be in writing and shall be final and binding, and
judgment on the award may be entered in any court having jurisdiction thereof.
12.11 Governing Law. This Agreement shall be governed by,
enforced and construed in accordance with the laws of the State of New York,
without regard to choice of law principles.
19
20
12.12 Specific Performance. Notwithstanding anything herein to
the contrary, if Buyer or Sellers fail to perform any of its obligations under
this Agreement, the aggrieved party shall have the right, in addition to all
other rights or remedies, to specific performance of the terms hereof.
12.13 Headings. Subject headings are included for convenience
only and shall not effect the interpretation of any provisions of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the day and year first above written.
LEAP: BUYER:
Leap Wireless International, Inc. Cingular Wireless LLC
By: /s/ XXXXXX X. XXXXX By: /s/ XXXX X. XXXXXXX
------------------- -------------------
Name: Xxxxxx X. Xxxxx Name: Xxxx X. Xxxxxxx
Its: Chief Executive Officer Its: Chief Operating Officer
CRICKET:
Cricket Licensee IX, Inc.
By: /s/ XXXXXX X. XXXXX
-------------------
Name: Xxxxxx X. Xxxxx
Its: Chief Executive Officer
20
21
EXHIBIT A
LICENSES
------------------------------------------------------------------------------------------------
FCC CHANNEL BLOCK/
SELLER BTA LICENSE # MARKET NAME MHZ GRANT DATE EXP. DATE
------------------------------------------------------------------------------------------------
Cricket 399 WPOK600 Salt Lake City, UT C1/15 MHz 7/22/99 7/22/09
Leap 365 WPOK595 Provo, UT C1/15 MHz 7/22/99 7/22/09
22
EXHIBIT B
ASSIGNMENT AND ASSUMPTION OF LICENSES
This ASSIGNMENT AND ASSUMPTION OF LICENSES dated as of _________, 2001
is by and between Leap Wireless International, Inc., a Delaware corporation
("Leap"), Cricket Licensee IX, Inc., a Delaware corporation and a wholly-owned
subsidiary of Leap ("Cricket", Leap and Cricket are each, an "Assignor"), and
Cingular Wireless LLC, a Delaware limited liability company ("Assignee").
WHEREAS, the Agreement for Purchase and Sale of Licenses dated as of
July 30, 2001 (the "Purchase Agreement") by and among the Leap, Cricket and
Assignee provides for, among other things, the assignment and sale to Assignee
from each Assignor certain licenses for good and valuable consideration in the
amount and on the terms and conditions provided therein;
WHEREAS, the Wireless Telecommunications Bureau of the Federal
Communications Commission approved by public notice released ________, 2001 the
application to assign the Licenses (as defined below) from each Assignor to the
Assignee; and
WHEREAS, the parties hereto now desire to carry out the intent and
purpose of the Purchase Agreement by, among other things, each Assignor's
execution and delivery of this instrument evidencing the sale, conveyance,
assignment, transfer and delivery to the Assignee of all of the Assignor's
right, title and interest in and to the Licenses (as defined below).
NOW THEREFORE, the parties hereby agree as follows:
1. Each Assignor hereby assigns and transfers to the Assignee, its
successors and assigns, effective as of the date hereof, the respective license
and authorization issued by the Federal Communications Commission listed on
Exhibit A attached hereto (the "Licenses"), and all of the Assignor's right,
title and interest therein and thereto.
2. The Assignee hereby accepts from each Assignor the assignment and
transfer of the Licenses and all of the Assignor's right, title and interest
therein and thereto, free and clear of all Encumbrances.
3. This Assignment and Assumption shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to
principles of conflicts of laws.
4. This Assignment and Assumption may be signed in counterpart originals
and delivered by facsimile, which collectively shall have the same legal effect
as if all signatures had appeared on the same document.
5. Notwithstanding any other provisions of this Assignment and
Assumption to the contrary, nothing contained herein shall in any way supersede,
modify, replace, amend, change,
23
rescind, waive, exceed, expand, enlarge or in any way affect the provisions,
including the warranties, covenants, agreements, conditions, representations or,
in general any of the rights and remedies, and any of the obligations and
indemnifications of the parties set forth in the Purchase Agreement nor shall
this Assignment and assumption expand or enlarge any remedies under the Purchase
Agreement. This Assignment and Assumption is intended only to effect the
assignment of the Licenses pursuant to the Purchase Agreement and shall be
governed entirely in accordance with the terms and conditions of the Purchase
Agreement. All capitalized terms not otherwise defined herein shall have the
meaning given to them in the Purchase Agreement.
IN WITNESS WHEREOF, this assignment has been signed by the Assignee and
the Assignor as of the date set forth above.
ASSIGNOR:
Leap Wireless International, Inc.
By: ________________________
Name:
Title:
Cricket Licensee IX, Inc.
By: ________________________
Name:
Title:
ASSIGNEE:
Cingular Wireless LLC
By: ________________________
Name:
Title:
