1
EXHIBIT 10.60
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is entered into as of
April 24, 2000 by and between WWC License L.L.C., a Delaware limited liability
company, or its assigns ("Purchaser"), and Zephyr Tele-Link, a New Jersey
general partnership ("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 (call sign WPOM485) granted by the Federal Communications
Commission (the "FCC" or the "Commission") for the Oklahoma 4 Rural Service Area
(the "System");
WHEREAS, the Parties desire that Purchaser acquire from Seller all of
the Authorizations in accordance with the terms and conditions set forth in this
Agreement; and
WHEREAS, the Parties have determined that it would further the
development of competitive, non-wireline cellular systems in the United States
to consummate the transactions set forth herein.
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 5.6.
"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 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 Authorizations to Purchaser in the
manner contemplated by this Agreement.
"Authorizations" shall mean the authorizations, permits and licenses
issued by the FCC and any other governmental authority to Seller relating to the
System.
1
2
"Closing Date" shall mean the date that is five business days after the
date on which the FCC Consent becomes a Final Order.
"Closing" shall mean the consummation of the assignment, transfer,
conveyance and delivery of the Authorizations and the Purchase Price as
contemplated hereunder.
"FCC Consent" shall mean the action of the FCC granting its consent to
the assignment of the FCC Authorizations from Seller to Purchaser.
"FCC Authorizations" shall mean the Authorizations from the FCC relating
to the operation of the System.
"Final Order" means an action or decision by the FCC or any federal or
state court or agency as to which: (i) no request for stay of the action is
pending, no such stay is in effect, and, if any deadline for filing any such
request is designated by statute or regulation, it has passed; (ii) no petition
for rehearing or reconsideration of the action or decision is pending and the
time for filing any such petition has passed; (iii) the decision making entity
does not have the action or decision under reconsideration on its own motion and
the time for such reconsideration has passed; and (iv) no appeal is pending or
in effect, and if any deadline for filing any such appeal is designated by
statute or rule, it has passed.
"Representative" shall mean any officer, director, principal, attorney,
agent, employee or other representative of any Person.
"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.
"To the best knowledge" or "knowledge" of a party (or similar phrases)
shall mean to the actual knowledge of such party.
ARTICLE 2
ASSIGNMENT OF AUTHORIZATIONS
2.1 Assignment of Authorizations
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, and Purchaser will acquire, the Authorizations. The
Closing shall, subject to the terms and conditions hereof, take place by the
exchange of overnight deliveries and by facsimile, with the Purchase Price to be
paid as provided in Section 2.2, or at such place as may be mutually agreed upon
by Purchaser and Seller.
2.2 Purchase Price.
The purchase price for the Authorizations shall be Sixty Million and One
Dollars
2
3
($60,000,001) (the "Purchase Price"), which shall be paid by Purchaser to Seller
on the Closing Date by wire transfer of immediately available funds.
ARTICLE 3
ASSUMED OBLIGATIONS
On the Closing Date, Purchaser shall assume and agree to discharge and
perform, as and when due, all obligations of Seller pursuant to the
Authorizations that may arise on or after the Closing Date. Except as set forth
in the previous sentence, 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 partners, of any nature whatsoever, or any
debts, liabilities (contingent or otherwise) or obligations relating to the
System.
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 commercially reasonable efforts to cause the
transactions contemplated by this Agreement to be consummated in accordance with
the terms hereof, and, without limiting the generality of the foregoing, use
commercially reasonable efforts to obtain all necessary approvals and consents
required in connection with this Agreement and the transactions contemplated
hereby, including, without limitation, consents from all governmental
authorities and agencies, and to make all filings with and to give all notices
to third parties which may be necessary or reasonably required of Seller in
order to consummate the transactions contemplated hereby.
4.1.2 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 Seller or the Authorizations.
4.1.3 Approvals; Consents.
Seller shall obtain and maintain in full force and effect all
approvals, consents, permits, licenses and other authorizations, from all
appropriate Federal, state and local governmental agencies or authorities
necessary or required for the ownership, retention and use of the
Authorizations. Seller shall maintain the Authorizations in full force and
effect, and shall not take any action which might have a material adverse effect
on such Authorizations.
4.1.4 No Sale.
3
4
Seller shall not enter into any other contract to sell or
encumber any of its Authorizations.
4.2 Covenant of Purchaser.
Purchaser covenants and agrees that from and after the execution and
delivery of this Agreement to and including the Closing Date, Purchaser shall
use commercially reasonable efforts to cause the transactions contemplated by
this Agreement to be consummated in accordance with the terms hereof, and,
without limiting the generality of the foregoing, to assist Seller in obtaining
all necessary consents and authorizations of third parties, including, without
limitation, the approval of this Agreement and the transactions contemplated
hereby by all governmental authorities and agencies, including the FCC and any
state public utilities or public service commission, and to make all filings
with and to give all notices to third parties which may be necessary or
reasonably required of Purchaser in order to consummate the transactions
contemplated hereby. Purchaser shall not take any action which would result in a
breach of any of its representations and warranties hereunder.
4.3 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, and, if necessary, will file
with any applicable state agency or agencies, as soon as practicable following
the date hereof, joint applications requesting the approval of the assignment of
the Authorizations to Purchaser, and, if applicable, will file all necessary
applications with the Department of Justice and the Federal Trade 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.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby makes the following representations and warranties to
Purchaser, all of which have been relied upon by Purchaser in entering into this
Agreement and the truth and accuracy of which shall constitute a condition
precedent to the obligations of Purchaser hereunder:
5.1 Organization and Standing.
Seller (a) is a general partnership duly organized, validly existing and
in good standing under the laws of the State of New Jersey, and (b) has full
power and authority to enter into and perform this Agreement, and to own the
Authorizations.
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 partnership action, including
approval of the entire transaction by the requisite vote of the partners of
Seller. This Agreement has been duly
4
5
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 will not (a)
violate any provisions of the partnership agreement or other operational
agreement 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 any of the
Authorizations under the provisions of any agreement or other instrument to
which Seller or its partners are 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 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 Authorizations.
5.5 Authorizations.
The Authorizations listed on Schedule 5.5 are all of the licenses,
permits, and other authorizations owned by Seller or Seller's partners relating
to the System. The Authorizations are validly issued in the name of Seller and
are in full force and effect. The System has been operated in compliance with
all laws, rules and regulations applicable to the Authorizations, and the
Authorizations are free and clear of any restrictions which might limit the full
operation of the System (other than those routinely imposed in conjunction with
such Authorizations).
5.6 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 against, relating
to or affecting (a) Seller, (b) the Authorizations, 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 Authorizations.
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 Authorizations or the financial condition of Seller.
5.7 Complaints.
There is not, to the best of Seller's knowledge, any Commission
investigation, notice of apparent liability or order of forfeiture pending or
outstanding against Seller or the System 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
5
6
Commission relating to the Authorizations or the System.
5.8 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 System have been filed and are complete and correct in all material
respects, and shall continue to be filed on a current basis until the Closing
Date. All such reports, returns and statements are (and will be, in the case of
future reports) complete and correct in all material respects as filed.
5.9 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 shown to be due and
payable or claimed to be due and payable thereon.
5.10 No Other Agreements to Sell the Authorizations.
Seller has no legal obligation, absolute or contingent, to any other
person or firm to sell the Authorizations or to sell any interest in Seller or
to effect any reorganization of Seller or to enter into any agreement with
respect thereto.
5.11 Brokers.
Seller has entered into an arrangement with Xxxxxxxxxx Capital to assist
with the sale of the Authorizations. Seller acknowledges that it shall be solely
responsible for any finder's fee, brokerage commission or similar payment in
connection with the transactions contemplated hereby.
5.12 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, all of which have been relied upon by Seller in entering into this
Agreement and the truth and accuracy of which shall constitute a condition
precedent to the obligations of Seller hereunder:
6.1 Organization and Standing
Purchaser (a) is a corporation duly organized, validly existing and in
good standing under the laws of the state of its formation, and (b) has full
limited liability company power and authority to enter into and perform this
Agreement.
6.2 Authorization and Binding Obligations
6
7
The execution, delivery and performance by Purchaser of this Agreement
has been duly and validly authorized by all necessary limited liability company
action, including any necessary approval of the entire transaction by the
managers 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 certificate of formation and operating agreement
of Purchaser, (b) result in the breach of, or constitute a default under the
provisions of any agreement or other instrument to which Purchaser is a party or
by which the property of Purchaser is bound or affected or (c) violate any laws,
regulations, orders or judgments applicable to Purchaser.
6.4 No Brokers
Neither Purchaser nor any of its Affiliates has 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.
6.5 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.
6.6 Alien Ownership
Purchaser is in compliance with Section 310(b) of the Communications
Act, and all rules, regulations and policies of the FCC promulgated thereunder.
6.7 FCC Matters
Purchaser is fully qualified under the Communications Act of 1934, as
amended, to be an FCC licensee and to be approved as the assignee of the
Authorizations.
6.8 Availability of Funds
Purchaser has available to it, and Purchaser will have available on the
Closing
7
8
Date, sufficient funds to enable it to consummate the transactions contemplated
by this Agreement.
ARTICLE 7
CONDITIONS TO SELLER'S OBLIGATIONS
The obligations of Seller to sell the Authorizations 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 Purchase Price
Seller shall have received payment of the Purchase Price in accordance
with ARTICLE 2 hereof.
7.3 HSR Waiting Period
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.
7.4 Closing Documents
Seller shall have received from Purchaser the documents and other items
to be delivered by Purchaser pursuant to Section 9.2 hereof.
ARTICLE 8
CONDITIONS TO PURCHASER'S OBLIGATIONS
The obligations of Purchaser to purchase the Authorizations 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
8
9
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 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 and any other applicable governmental entity shall have
consented to the assignment of the Authorizations to Purchaser and such consents
shall have become Final Orders.
8.3 Closing Documents
Purchaser shall have received from Seller the documents and other items
to be delivered by Seller pursuant to Section 9.1 hereof.
8.4 Opinion of Seller's FCC Counsel
Seller shall have delivered to Purchaser an opinion of FCC counsel for
Seller in substantially the form attached hereto as Schedule 8.4.
8.5 HSR Waiting Period
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:
9.1 Deliveries by Seller to Purchaser.
Seller shall deliver to Purchaser:
9.1.1 one or more assignments transferring to Purchaser (or its
designee) all of Seller's interest in and to the Authorizations;
9.1.2 the opinion of Seller's FCC counsel referenced in Sections
8.4 hereof;
9.1.3 Seller's Closing Certificate.
9.2 Deliveries by Purchaser to Seller
Purchaser shall deliver to Seller (or its designee):
9
10
9.2.1 Purchaser's Closing Certificate;
9.2.2 payment of the Purchase Price; and
9.2.3 one or more assumption agreements pursuant to which
Purchaser (or its designee) agrees to assume all of Seller's interest in and to
the Authorizations on and after the Closing Date.
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 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 one (1) year following the Closing Date (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, 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 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), from and after
10
11
the Closing Date, 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; and
(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, if any, 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."
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.
10.5 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
11
12
consummate the transactions contemplated hereby.
ARTICLE 11
DEFAULT AND REMEDIES
11.1 Opportunity to Cure
If any Party believes another to be in material default hereunder, such
Party shall provide the other with written notice specifying in reasonable
detail the nature of such material default. If the material default has not been
cured by the earlier of: (a) the Closing Date, or (b) the later of (i) thirty
(30) days after delivery of that notice or (ii) a reasonable period of time if
such default cannot be cured within thirty (30) days after delivery of that
notice, then the Party giving such notice may terminate this Agreement and/or
exercise the remedies available to such Party pursuant to this Article, subject
to the right of the other Party to contest such action through appropriate
proceedings.
11.2 Remedies
The Parties hereto shall have the right to pursue any remedy that each
may have at law or in equity. Without limiting the foregoing, the parties agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof in any court of the
United States or any state having jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity. Each party agrees
that it will not assert, as a defense against a claim for specific performance,
that the party seeking specific performance has an adequate remedy at law.
ARTICLE 12
TERMINATION
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 eighteen (18) months after the date of this
Agreement, or if Closing is prohibited by a change in the law. 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.
ARTICLE 13
MISCELLANEOUS
13.1 Assignment
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, except that
12
13
Purchaser may, without such consent, assign its right, title and interest in, to
and under this Agreement to an Affiliate so long as Purchaser remains obligated
to fulfill the requirements of this Agreement in the event such assignee does
not so perform. Subject to the foregoing, 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, 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 - 000xx Xxxxxx X.X., Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax No. (000) 000-0000
With a copy to:
Xxxxxx Xxxxxxxx, P.S.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Fax No: (000) 000-0000
If to Seller:
Zephyr Tele-Link
00 Xxxxx Xxxxxx
Xxxxxxxxx Xxxx, X.X. 00000
Attention: Xxx Xxxxx, Xx.
Fax No. (000) 000-0000
With a copy to:
Xxxxxxxxxx and Xxxxx, L.L.P.
0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx X. Xxxxxx
13
14
Fax No. (000) 000-0000
And a copy to:
Xxxxxxxxxx Capital
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Fax No. (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
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 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 without
reference to its choice of law rules, 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.
13.4 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.
13.5 Counterparts
This Agreement may be executed by facsimile and 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.
13.6 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
14
15
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement or any other such
instrument.
13.7 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.
13.8 Expenses
Except as otherwise expressly provided herein, Seller shall be solely
responsible for any sales and transfer Taxes arising from the purchase and sale
of the Authorizations pursuant to this Agreement. Seller and Purchaser shall
equally all HSR filing fees, if any, and all FCC filing fees. In all other
respects Seller and Purchaser will each be liable for its own expenses incurred
in connection with the negotiation, preparation, execution or performance of
this Agreement.
13.9 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.
13.10 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 13.9.
Seller and Purchaser shall not make any public disclosure of the specific terms
of this Agreement, except as required by law. In connection with the negotiation
of this Agreement and the preparation for the consummation of the transactions
contemplated hereby, each Party acknowledges that it will have access to
confidential information relating to the other Parties. Each Party shall treat
such information as confidential, preserve the confidentiality thereof and not
duplicate or use such information, except to advisors, consultants and
Affiliates in connection with the transactions contemplated hereby provided such
advisors, consultants and Affiliates also agree to keep such information
confidential. In the event of the termination of this Agreement for any reason
whatsoever, each Party shall return to the other all documents, work papers and
other material (including all copies thereof) obtained in connection with the
transactions contemplated hereby and will use all reasonable efforts, including
instructing any of its employees and others who have had access to such
information, to keep confidential and not to use any such information, unless
such information is now, or is hereafter disclosed, through no act or omission
of such party, in any manner making it available to the general public.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed on its behalf by its representative thereunto duly authorized as
of the day and year first
15
16
above written.
ZEPHYR TELE-LINK WWC LICENSE L.L.C.
By: /s/ Xxx X. Xxxxx, Jr. By: /s/ Xxxxx Xxxxxx
------------------------------- -------------------------------
Its: Partner Its: Vice President - Corporate
Development
By: /s/ Xxxxxx Xxxxx
------------------------------
Its: Partner
By: /s/ Xxxx X. Journalist
------------------------------
Its: Partner
GUARANTY
Western Wireless Corporation ("Guarantor") hereby unconditionally
guarantees the full and timely payment and performance by Purchaser of
Purchaser's obligations as set forth in this Agreement. The guarantee provided
herein is an absolute and continuing guarantee and shall not be affected by any
amendment of the Agreement or any renewal or extension of the time for payment
or performance by Purchaser of any of its obligations hereunder, or any
indulgences or waivers with respect thereto. Guarantor hereby waives any
circumstance that might constitute a defense available to, or discharge of,
Guarantor, other than such defense or discharge as would be available to
Purchaser under the terms of this Agreement.
WESTERN WIRELESS CORPORATION
By: /s/ Xxxxx Xxxxxx
---------------------------------
Its: Vice President - Corporate
Development
