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EXHIBIT 10.59
AGREEMENT TO FORM LIMITED PARTNERSHIP
AGREEMENT, dated September 30, 1997 (the "Agreement"), by and among
WESTERN PCS I IOWA CORPORATION, a Delaware corporation having its principal
office at 0000 XX Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx 00000 ("WWC"), INS
WIRELESS, INC., an Iowa corporation having its principal office at 0000
Xxxxxxxxx Xxxxx, Xxxx Xxx Xxxxxx, Xxxx 00000 ("INS") (WWC and INS shall be
referred to herein sometimes individually as a "Partner" and collectively as the
"Partners"), WESTERN PCS I CORPORATION, a Delaware corporation having its
principal office at 0000 X.X. Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx 00000 ("WWC
Parent") and IOWA NETWORK SERVICES, INC., an Iowa corporation having its
principal office at 0000 Xxxxxxxxx Xxxxx, Xxxx Xxx Xxxxxx, Xxxx 00000 ("INS
Parent").
W I T N E S S E T H:
WHEREAS, the parties hereto desire to form a limited partnership to build
and operate a PCS network covering certain major metropolitan areas in Iowa and
to build and operate a PCS network along the major interstate and state highways
linking such areas (all of which activities shall be referred to herein as the
"Business"); and
WHEREAS, the parties hereto desire that such limited partnership be formed
as soon as practicable; and
WHEREAS, the parties hereto desire to state their respective rights and
obligations with respect to the limited partnership.
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
conditions and promises hereinafter set forth, the parties hereby agree as
follows:
ARTICLE 1
FORMATION OF LIMITED PARTNERSHIP;
APPROVAL DATE
1.1 Formation of Limited Partnership. Subject to the terms and
conditions hereof and in reliance upon the representations, warranties,
covenants and agreements herein contained, within ten (10) Business Days (as
hereinafter defined) after the date hereof, WWC and INS will (a) form a Delaware
limited partnership to be named "Iowa Wireless Services, L.P." (the
"Partnership"), in accordance with the Revised Uniform Limited Partnership Act
of the State of Delaware (the "Act") and in that regard will file with the
Secretary of State of the State of Delaware a Certificate of Limited Partnership
in substantially the form of Exhibit 1.1(a) attached hereto, and (b) enter into
a limited partnership agreement in the form attached hereto as Exhibit 1.1(b)
(the "Partnership Agreement") governing the Partnership. As more particularly
set forth in the Partnership Agreement, and subject to the conditions set forth
herein, within ten (10) Business Days after the Approval Date (as hereinafter
defined) the Partners are required to make certain Required Capital
Contributions (as such term is defined in the Partnership Agreement) to
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the Partnership. The date on which such initial Required Capital Contributions
are made to the Partnership shall be referred to herein as the "Closing Date."
1.2 Approval Date. The "Approval Date" shall be the day on which all
Federal Communications Commission ("FCC") and state regulatory approvals (if
any) necessary in order to consummate lawfully the transactions contemplated
hereby have been received and shall have become Final Orders (as hereinafter
defined) (such FCC and state regulatory approvals shall be hereinafter referred
to as the "Regulatory Approvals"). As used herein the term "Business Day" shall
mean any day other than a Saturday, Sunday or a legal holiday in New York, New
York or in Seattle, Washington, or any other day on which commercial banks are
authorized by law or governmental decree to close. "Final Order" means an action
or decision as to which: (i) no request for a stay is pending, no stay is in
effect, and any deadline for filing such request that may be designated by
statute or regulation has passed; (ii) no petition for rehearing or
reconsideration or application for review is pending and the time for filing any
such petition or application has passed; (iii) the FCC, public utility
commission or public service commission (or comparable bodies exercising
jurisdiction over the parties) does not have the action or decision under
reconsideration on its own motion and the time for initiating such
reconsideration has passed; and (iv) no appeal is pending or in effect and any
deadline for filing any such appeal that may be designated by statute or rule
has passed.
ARTICLE 2
COVENANTS AND AGREEMENTS
2.1 Governmental Filings. Each of INS, INS Parent, WWC and WWC Parent
covenant and agree from and after the execution and delivery of this Agreement
to and including the Closing Date as follows:
(a) It is understood that the consummation of the transactions
contemplated hereby is subject to prior approval of the FCC and may be subject
to the prior approval of one or more state regulatory commissions. The parties
shall use their best efforts to file with the FCC and any relevant state agency
or agencies, as soon as practicable following the date hereof and in no event
later than thirty (30) Business Days from the date hereof, a joint application
requesting the approval of the FCC and, if applicable, the relevant state agency
or agencies, to the transactions contemplated hereby and by the Partnership
Agreement. 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 reasonably requested by the FCC or
any other regulatory authority and to file such material as shall be necessary
or required to obtain any necessary waivers or other authority from the FCC or
such state agency or agencies in connection with the foregoing applications.
(b) Within thirty (30) Business Days after the date of execution
hereof, WWC
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and INS shall file, or cause to be filed any and all reports or notifications
which are required to be filed under any Federal law or administrative
regulations.
2.2 Covenants of INS and INS Parent. Each of INS and INS Parent, jointly
and severally, covenants and agrees from and after the execution and delivery of
this Agreement, which covenants shall survive the Closing Date, as follows:
(a) Consummate Transactions. Each of INS and INS Parent shall use
all 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 all commercially
reasonable efforts to obtain all necessary approvals, consents, permits,
licenses and other authorizations required in connection with this Agreement and
the transactions contemplated hereby of third parties including all governmental
authorities and agencies such as the FCC and any state public utilities or
public service commission, and to make all filings with and give all notices to
third parties which may be necessary or reasonably required of INS or INS Parent
in order to consummate the transactions contemplated hereby.
(b) Approvals, Consents. Each of INS and INS Parent 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 consummation
of the transactions contemplated hereby. The parties shall consult with one
another as to the general approach to be taken with any governmental authority
or agency with respect to obtaining any necessary consent of such governmental
agency or authority to the transactions contemplated hereby, and each of the
parties shall keep each other party reasonably informed as to the status of any
such communications with any governmental authority or agency. Neither INS nor
INS Parent shall, with respect to the Business or the assets used or to be used
in connection with the Business, make any material commitments (other than those
typical in the wireless telephone industry) relating to any approval, consent,
permit or license to any governmental authority or agency without the prior
written consent of WWC and WWC Parent.
(c) RTFC Loan. INS Parent has filed an application and all other
necessary documents, and each of INS and INS Parent agrees to diligently pursue
and use its best efforts, to obtain a loan in the principal amount of
$20,000,000 from the Rural Telephone Finance Cooperative (the "RTFC") on rates,
terms and conditions prevailing at the time of the application.
(d) Notice of Claims. Each of INS and INS Parent shall give
written notice to WWC and WWC Parent promptly upon the commencement of any
action, investigation, arbitration or proceeding (including any proceeding
before any governmental agency), or promptly upon obtaining knowledge of any
facts giving rise to a threat of any such action, investigation, arbitration or
proceeding, which would, if adversely determined, materially and adversely
affect (i) the ability of any of the parties hereto to consummate the
transactions contemplated hereby or (ii) the business, prospects or financial
condition of the Business or the
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assets to be used in connection with the operation of the Business.
(e) Certain Actions. Neither INS nor INS Parent shall take any
action or refrain from taking any action which would materially interfere with
or preclude the consummation of the transactions contemplated by this Agreement,
result in any of the representations and warranties of any party hereto
contained herein being incorrect or incomplete in any material respect, or
result in any of the conditions to any party's obligations to consummate the
transactions contemplated by this Agreement as set forth in Section 4.1 hereof
being unsatisfied in accordance with the terms hereof.
(f) Notice of Breaches. Each of INS and INS Parent shall, promptly
after obtaining knowledge of the occurrence of, or the impending or threatened
occurrence of, any event which would cause or constitute a breach of any
warranties, representations, covenants or agreements of INS or INS Parent, give
notice in writing to WWC and WWC Parent of such event or occurrence or impending
or threatened event or occurrence and use its diligent efforts to prevent or
promptly to remedy such breach.
(g) Notification of Change. Each of INS and INS Parent shall
advise WWC and WWC Parent promptly in writing of (i) any event, condition or
state of facts, including any action, suit or proceeding, which has had or would
have a material adverse effect on the business or financial condition of INS,
INS Parent or the Partnership, on the Business, on the assets used or to be used
in connection with the operation of the Business or on the transactions
contemplated by this Agreement or (ii) the commencement of any action, suit or
proceeding which seeks to enjoin the consummation of the transactions
contemplated hereby.
2.3 Covenants of WWC and WWC Parent. Each of WWC and WWC Parent, jointly
and severally, covenants and agrees from and after the execution and delivery of
this Agreement, which covenants shall survive the Closing Date, as follows:
(a) Consummate Transactions. Each of WWC and WWC Parent shall use
all 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 all commercially
reasonable efforts to obtain all necessary approvals, consents, permits,
licenses and other authorizations required in connection with this Agreement and
the transactions contemplated hereby of third parties including all governmental
authorities and agencies such as the FCC and any state public utilities or
public service commission, and to make all filings with and give all notices to
third parties which may be necessary or reasonably required of WWC or WWC Parent
in order to consummate the transactions contemplated hereby.
(b) Approvals, Consents. Each of WWC and WWC Parent 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 consummation
of the transactions contemplated hereby. The parties
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shall consult with one another as to the general approach to be taken with any
governmental authority or agency with respect to obtaining any necessary consent
of such governmental agency or authority to the transactions contemplated
hereby, and each of the parties shall keep each other party reasonably informed
as to the status of any such communications with any governmental authority or
agency. Neither WWC nor WWC Parent shall, with respect to the Business or the
assets used or to be used in connection with the Business, make any material
commitments (other than those typical in the wireless telephone industry)
relating to any approval, consent, permit or license to any governmental
authority or agency without the prior written consent of INS and INS Parent.
(c) Notice of Claims. Each of WWC and WWC Parent shall give
written notice to INS and INS Parent promptly upon the commencement of any
action, investigation, arbitration or proceeding (including any proceeding
before any governmental agency), or promptly upon obtaining knowledge of any
facts giving rise to a threat of any such action, investigation, arbitration or
proceeding, which would, if adversely determined, materially and adversely
affect (i) the ability of any of the parties hereto to consummate the
transactions contemplated hereby or (ii) the business, prospects or financial
condition of the Business or the assets to be used in connection with the
operation of the Business.
(d) Certain Actions. Neither WWC nor WWC Parent shall take any
action or refrain from taking any action which would materially interfere with
or preclude the consummation of the transactions contemplated by this Agreement,
result in any of the representations and warranties of any party hereto
contained herein being incorrect or incomplete in any material respect, or
result in any of the conditions to any party's obligations to consummate the
transactions contemplated by this Agreement as set forth in Section 4.2 hereof
being unsatisfied in accordance with the terms hereof.
(e) Notice of Breaches. Each of WWC and WWC Parent shall, promptly
after obtaining knowledge of the occurrence of, or the impending or threatened
occurrence of, any event which would cause or constitute a breach of any
warranties, representations, covenants or agreements of WWC or WWC Parent, give
notice in writing to INS and INS Parent of such event or occurrence or impending
or threatened event or occurrence and use its diligent efforts to prevent or
promptly to remedy such breach.
(f) Notification of Change. Each of WWC and WWC Parent shall
advise INS and INS Parent promptly in writing of (i) any event, condition or
state of facts, including any action, suit or proceeding, which has had or would
have a material adverse effect on the business or financial condition of WWC,
WWC Parent or the Partnership, on the Business, on the assets used or to be used
in connection with the operation of the Business or on the transactions
contemplated by this Agreement or (ii) the commencement of any action, suit or
proceeding which seeks to enjoin the consummation of the transactions
contemplated hereby.
(g) Repayment of Loans to Partnership. Pursuant to Section 3.5(b)
of the
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Partnership Agreement, INS shall make non-interest-bearing loans (the "Funding
Loans") in an aggregate amount of up to $500,000 to operate the Partnership
prior to the Closing Date, in accordance with the terms of the Partnership
Agreement. In the event WWC fails, in breach of its obligations hereunder, to
make its Required Capital Contribution pursuant to Section 3.1(a) of the
Partnership Agreement, and as a consequence of such failure the Partnership is
terminated, WWC shall pay INS cash in the amount of 38% of (i) the outstanding
principal amount of the Funding Loans minus (ii) the amount of cash and the fair
market value of other assets held by the Partnership at the time of its
termination. In no event shall WWC's payment to INS pursuant to the terms of
this Section 2.3(g) exceed $190,000. Neither WWC nor WWC Parent, nor any of
their Affiliates, shall have any other obligation to the Partnership or to INS
with respect to the Funding Loans.
2.4 F Block Build-out. INS Parent has advised WWC and WWC Parent that it
is anticipated that Iowa L.P. 136 will transfer to INS Parent the F Block PCS
licenses for BTA 105, Davenport, Iowa -Moline, Illinois, BTA 000, Xxxx Xxxx,
Xxxx and BTA 70, Cedar Rapids, Iowa (the "Iowa 136 Licenses"). INS Parent
anticipates that, if and when the Iowa 136 Licenses are transferred to INS
Parent, the PCS Networks (as such term is defined in the Partnership Agreement)
may also be used by INS Parent (without any obligation of the Partnership to
modify, redesign or expand the PCS Networks or expend any costs therefor) to
satisfy a portion of INS Parent's build-out requirements relating to the Iowa
136 Licenses. If the PCS Networks as constructed cover a geographic area that
could also satisfy a portion of the build-out requirements of the Iowa 136
Licenses (without any obligation of the Partnership to modify, redesign or
expand the PCS Networks or expend any costs therefor), then the parties agree to
permit INS Parent to utilize the PCS Networks for the limited purpose of
satisfying such portion of the build-out requirements relating to the Iowa 136
Licenses; provided, however, that (a) the Partnership shall not be required to
revise its system design, expand or improve the PCS Networks or otherwise have
any obligation in connection with such satisfaction of such portion of the
build-out requirements of the Iowa 136 Licenses; (b) the Partnership shall not
be required to expend any additional amounts or incur any additional liabilities
as a result of such satisfaction of such portion of the build-out requirements
of the Iowa 136 Licenses; (c) neither INS nor INS Parent shall share in any of
the revenues of the Partnership or have any additional rights under this
Agreement or the Partnership Agreement as a result of such satisfaction of such
portion of the build-out requirements of the Iowa 136 Licenses beyond those
revenues and rights to which it would otherwise by entitled under this Agreement
and the Partnership Agreement; (d) WWC and WWC Parent shall have received a
satisfactory opinion of counsel to the effect that such satisfaction of such
portion of the build-out requirements of the Iowa 136 Licenses shall not have
any material adverse effect on the Partnership or its licenses or on WWC, WWC
Parent and their respective Affiliates (as hereinafter defined) or shareholders
or equity owners or any of their respective licenses or businesses, nor will
such satisfaction of such portion of the build-out requirements of the Iowa 136
Licenses impose any additional obligations, liabilities or restrictions upon the
Partnership or its licenses or on WWC, WWC Parent, their respective Affiliates
or shareholders or equity owners or any of their respective licenses or
businesses; (e) the terms and conditions of any switch-sharing, frequency
sharing or other similar arrangements
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shall be on arms-length terms and conditions and shall be subject to approval by
WWC and WWC Parent; (f) INS and INS Parent shall, jointly and severally, agree
to indemnify and hold harmless the Partnership, WWC, WWC Parent and their
respective Affiliates from and against any and all additional costs or
liabilities arising as a result of the use by INS Parent of the PCS Networks to
satisfy such portion of the build-out requirements of the Iowa 136 Licenses; and
(g) such utilization of the PCS Networks by INS Parent shall not in any way
interfere with or adversely affect the services provided by the PCS Networks to
the Partnership's subscribers and other customers. Any waiver, amendment or
deviation from the terms of this Section 2.4 shall be subject to approval by WWC
and WWC Parent. Notwithstanding the foregoing, if INS or INS Parent requests the
Partnership to make any reasonable modifications or expansions to the PCS
Networks so that INS Parent may use the PCS Networks to satisfy a portion of the
build out requirements of the Iowa 136 Licenses and INS and INS Parent jointly
and severally agree to be directly responsible for all costs of such
modifications or expansions, and if, in the reasonable judgment of WWC Parent
and the Partnership, such modifications or expansions will not affect the
services provided by the PCS Networks to the Partnership's subscribers and other
customers, and will not expose the Partnership, or its Partners, to additional
liabilities, then the Partnership shall permit such modifications or expansions
at the sole cost and expense of INS and INS Parent.
2.5 Retained Spectrum Build-out. WWC Parent has advised INS and INS
Parent that WWC Parent anticipates that the PCS Networks may also be used by WWC
Parent (without any obligation of the Partnership to modify, redesign or expand
the PCS Networks or expend any costs therefor) to satisfy a portion of WWC
Parent's build-out requirements relating to the PCS spectrum retained by WWC
Parent in the Territory (as defined in the Partnership Agreement) and in the Des
Moines BTA and not being contributed to the Partnership (the "Retained
Spectrum"). If the PCS Networks as constructed cover a geographic area that
could also satisfy a portion of the build-out requirements of the Retained
Spectrum (without requiring any modification, redesign or expansion of the PCS
Networks), then the parties agree to permit WWC Parent to utilize the PCS
Networks for the limited purpose of satisfying such portion of the build-out
requirements relating to the Retained Spectrum; provided, however, that (a) the
Partnership shall not be required to revise its system design, expand or improve
the PCS Networks or otherwise have any obligation in connection with such
satisfaction of such portion of the build-out requirements of the Retained
Spectrum; (b) the Partnership shall not be required to expend any additional
amounts or incur any additional liabilities as a result of such satisfaction of
such portion of the build-out requirements of the Retained Spectrum; (c) Neither
WWC nor WWC Parent shall share in any of the revenues of the Partnership or have
any additional rights under this Agreement or the Partnership Agreement as a
result of such satisfaction of such portion of the build-out requirements of the
Retained Spectrum beyond those to which it would otherwise be entitled under
this Agreement and the Partnership Agreement; (d) INS and INS Parent shall have
received a satisfactory opinion of counsel to the effect that such satisfaction
of such portion of the build-out requirements of the Retained Spectrum shall not
have any material adverse effect on the Partnership or its licenses or on INS,
INS Parent or their respective Affiliates or shareholders or equity owners or
any of their respective licenses or businesses, nor will such
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satisfaction of such portion of the build-out requirements of the Retained
Spectrum impose any additional obligations, liabilities or restrictions upon the
Partnership or its licenses or on INS, INS Parent and their respective
Affiliates or shareholders or equity owners or any of their respective licenses
or businesses; (e) the terms and conditions of any switch-sharing, frequency
sharing or other similar arrangements shall be on arms-length terms and
conditions and shall be subject to approval by INS and INS Parent; (f) WWC and
WWC Parent shall, jointly and severally, agree to indemnify and hold harmless
the Partnership, INS, INS Parent and their respective Affiliates from and
against any and all additional costs or liabilities arising as a result of the
use by WWC Parent of the PCS Networks to satisfy such portion of the build-out
requirements of the Retained Spectrum; and (g) such utilization of the PCS
Networks by WWC Parent shall not in any way interfere with or adversely affect
the services provided by the PCS Networks to the Partnership's subscribers and
other customers. Any waiver, amendment or deviation from the terms of this
Section 2.5 shall be subject to approval by INS and its Parent. Notwithstanding
the foregoing, if WWC or WWC Parent requests the Partnership to make any
reasonable modifications or expansions to the PCS Networks so that WWC Parent
may use the PCS Networks to satisfy a portion of the build out requirements of
the Retained Spectrum and WWC and WWC Parent jointly and severally agree to be
directly responsible for all costs of such modifications or expansions, and if,
in the reasonable judgment of INS Parent and the Partnership, such modifications
or expansions will not affect the services provided by the PCS Networks to the
Partnership's subscribers and other customers, and will not expose the
Partnership, or its Partners, to additional liabilities, then the Partnership
shall permit such modifications or expansions at the sole cost and expense of
WWC and WWC Parent.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of INS and INS Parent. INS and INS
Parent, jointly and severally, represent and warrant to WWC and WWC Parent,
which representations and warranties shall survive the execution and delivery of
this Agreement, the Closing Date and the consummation of the transactions herein
contemplated, as follows:
(a) Due Incorporation. Each of INS and INS Parent is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Iowa. Each of INS and INS Parent has all requisite power and authority
to own, operate and lease its property and to carry on its business as now
conducted. Each of INS and INS Parent is duly qualified to do business and is in
good standing in all states where the conduct of its business or the ownership
of its properties makes such qualification necessary, except where the failure
to so qualify would not have a material adverse effect on either INS or INS
Parent, its financial condition or business, or the transactions contemplated
hereby.
(b) Power and Authority; No Violation. Each of INS and INS Parent
has full
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power and authority to execute, deliver and perform its obligations under this
Agreement, and to consummate the transactions contemplated hereby. This
Agreement and all transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of each of INS and INS
Parent and this Agreement constitutes a legal, valid and binding obligation of
each of INS and INS Parent enforceable in accordance with its terms except as
such enforceability may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting or relating to enforcement of creditors' rights
generally. Except as described on Exhibit 3.1(b) attached hereto, neither the
execution, delivery or performance of this Agreement nor the consummation of the
transactions contemplated hereby by either INS or INS Parent will, with or
without the giving of notice or the passage of time, or both (i) conflict with,
result in a default or loss of rights (or give rise to any right of termination,
cancellation or acceleration) under, or result in the creation of any lien,
claims, security interest or other encumbrance of any nature whatsoever
("Lien"), pursuant to (A) any provision of the certificate of incorporation,
by-laws or other constituent documents of INS or INS Parent; (B) any material
note, bond, indenture, mortgage, deed of trust, contract, agreement, lease or
other instrument or obligation to which either INS or INS Parent is a party or
by which it or its properties are bound or affected; or (C) any law, order,
judgment, ordinance, rule, regulation or decree to which either INS or INS
Parent is a party or by which it or its property is bound or affected; or (ii)
give rise to any right of first refusal or similar right with respect to any
interest in, or any properties or assets of, INS or INS Parent. Except as
described on Exhibit 3.1(b) attached hereto, no permit, consent, approval,
authorization, qualification or registration of, or declaration to or filing
with any governmental or regulatory authority or agency or third party is
required to be obtained or made by INS or INS Parent in connection with the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby in order to (A) render this Agreement and the transactions
contemplated hereby valid and effective and (B) enable INS and INS Parent to
consummate the transactions contemplated hereby.
(c) Legal Matters. There is no claim, legal action, counterclaim,
suit, arbitration, governmental investigation or other legal, administrative or
tax proceeding, nor any order, writ, injunction, decree or judgment, in progress
or pending, or to the knowledge of INS or INS Parent threatened, against or
relating to INS, INS Parent or the Business or the assets used or to be used in
connection with the operation of the Business, nor does INS or INS Parent know
or have reason to be aware of any basis for the same, which would individually
or in the aggregate have a material adverse effect on (i) INS, INS Parent or the
Business or the assets used or to be used in connection with the operation of
the Business or the ability of the parties hereto to consummate the transactions
described herein, (ii) the business or financial condition of INS or INS Parent,
or (iii) the transactions contemplated by this Agreement. There is outstanding
no order, writ, injunction, judgment or decree of any court, governmental agency
or arbitration tribunal which would individually or in the aggregate have a
material adverse effect on INS's or INS Parent's obligations hereunder or the
transactions contemplated by this Agreement other than orders or decrees
involving the wireless telephone industry in general.
(d) Compliance with Laws. INS and INS Parent are in compliance
with all
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applicable laws, regulations and administrative orders of the United States and
the states in which INS or INS Parent transacts business (including all
applicable rules and regulations of the FCC, any state public utilities or
public service commission, and any other Federal or state governmental agency or
instrumentality exercising jurisdiction over INS, INS Parent or their respective
properties or businesses), and of each municipality, county or subdivision of
any thereof, to which any of its businesses or any of its properties may be
subject, the non-compliance with which would have a material adverse effect upon
the transactions contemplated hereby. Certification as to compliance with
certain specific FCC requirements is contained in Exhibit 3.1(d) attached
hereto.
(e) Financial Ability. INS expects to have, and INS Parent shall
cause INS to have, and at all times after the Approval Date until payment in
full of its Required Capital Contributions (as defined in the Partnership
Agreement) to the Partnership, to continue to have, the financial ability to
make its full capital contribution to the Partnership as set forth in the
Partnership Agreement, subject to approval of its loan application to the RTFC.
(f) Truth and Correctness. No representation or warranty by INS or
INS Parent herein, nor any written statement or certificate or other instrument
furnished to WWC or WWC Parent by INS or INS Parent pursuant hereto or in
connection with the transactions contemplated hereby, including the Exhibits
attached hereto, contains any untrue statement of a material fact or omits or
will omit to state a material fact necessary to make the statements contained
herein or therein, in light of the circumstances under which such statements are
made, not misleading.
3.2 Representations and Warranties of WWC and WWC Parent. WWC and WWC
Parent, jointly and severally, represent and warrant to INS and INS Parent,
which representations and warranties shall survive the execution and delivery of
this Agreement, the Closing Date and the consummation of the transactions herein
contemplated, as follows:
(a) Due Incorporation. Each of WWC and WWC Parent is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. Each of WWC and WWC Parent has all requisite power and
authority to own, operate and lease its property and to carry on its business as
now conducted. Each of WWC and WWC Parent is duly qualified to do business and
is in good standing in all states where the conduct of its business or the
ownership of its properties makes such qualification necessary, except where the
failure to so qualify would not have a material adverse effect on either WWC or
WWC Parent, its financial condition or business, or the transactions
contemplated hereby.
(b) Power and Authority; No Violation. Each of WWC and WWC Parent
has full power and authority to execute, deliver and perform its obligations
under this Agreement, and to consummate the transactions contemplated hereby.
This Agreement and all transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action on the part of WWC and WWC
Parent and this Agreement constitutes a legal, valid and binding
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obligation of WWC and WWC Parent enforceable in accordance with its terms except
as such enforceability may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting or relating to enforcement of creditors' rights
generally. Except as described on Exhibit 3.2(b) attached hereof, neither the
execution, delivery or performance of this Agreement nor the consummation of the
transactions contemplated hereby by either WWC or WWC Parent will, with or
without the giving of notice or the passage of time, or both, (i) conflict with,
result in a default or loss of rights (or give rise to any right of termination,
cancellation or acceleration) under, or result in the creation of any Lien,
pursuant to (A) any provision of the certificate of incorporation, by-laws or
other constituent documents of WWC or WWC Parent; (B) any material note, bond,
indenture, mortgage, deed of trust, contract, agreement, lease or other
instrument or obligation to which either WWC or WWC Parent is a party or by
which it or its properties or FCC licenses are bound or affected; or (C) any
law, order, judgment, ordinance, rule, regulation or decree to which either WWC
or WWC Parent is a party or by which it or its property is bound or affected; or
(ii) give rise to any right of first refusal or similar right with respect to
any interest in, or any properties or assets of, WWC or WWC Parent. Except as
described on Exhibit 3.2(b) attached hereto, no permit, consent, approval,
authorization, qualification or registration of, or declaration to or filing
with any governmental or regulatory authority or agency or third party is
required to be obtained or made by WWC or WWC Parent in connection with the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby in order to (A) render this Agreement or the transactions
contemplated hereby valid and effective and (B) enable WWC and WWC Parent to
consummate the transactions contemplated hereby.
(c) Legal Matters. Except as described on Exhibit 3.2(c) attached
hereto, there is no claim, legal action, counterclaim, suit, arbitration,
governmental investigation or other legal, administrative or tax proceeding, nor
any order, writ, injunction, decree or judgment, in progress or pending, or to
the knowledge of WWC or WWC Parent threatened, against or relating to WWC, WWC
Parent or the Business or the assets used or to be used in connection with the
operation of the Business, nor does WWC or WWC Parent know or have reason to be
aware of any basis for the same, which would individually or in the aggregate
have a material adverse effect on (i) WWC, WWC Parent or the Business or the FCC
licenses or the assets used or to be used in connection with the operation of
the Business or the ability of the parties hereto to consummate the transactions
described herein, (ii) the business or financial condition of WWC or WWC Parent,
or (iii) the transactions contemplated by this Agreement. Except as described
herein or on Exhibit 3.2(c) attached hereto, there is outstanding no order,
writ, injunction, judgment or decree of any court, governmental agency or
arbitration tribunal which would individually or in the aggregate have a
material adverse effect on WWC's or WWC Parent's obligations hereunder or the
transactions contemplated by this Agreement other than orders or decrees
involving the wireless telephone industry in general.
(d) Compliance with Laws. WWC and WWC Parent are in compliance
with all applicable laws, regulations and administrative orders of the United
States and the states in which WWC or WWC Parent transacts business (including
all applicable rules and regulations of
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the FCC, any state public utilities or public service commission, and any other
Federal or state governmental agency or instrumentality exercising jurisdiction
over WWC or WWC Parent or their respective properties or businesses), and of
each municipality, county or subdivision of any thereof, to which any of its
businesses or any of its properties may be subject, the non-compliance with
which would have a material adverse effect upon the transactions contemplated
hereby. Certification as to compliance with certain specific FCC requirements is
contained in Exhibit 3.2(d) attached hereto.
(e) Authorizations.
(i) WWC Parent has the franchises, licenses, authorizations,
consents, permits and approvals of the FCC listed on Exhibit 3.2(e) attached
hereto (all such franchises, licenses, authorizations, consents, permits and
approvals, as amended to the date hereof, are collectively referred to as the
"Authorizations").
(ii) The Authorizations are in full force and effect and have
not been suspended, modified in any material adverse respect, canceled or
revoked. Except as set forth on Exhibit 3.2(c) attached hereto, no event has
occurred with respect to any of the Authorizations which permits, or after
notice or lapse of time or both would permit, revocation or termination thereof
or would result in any other material impairment of the rights of the holder of
any such Authorizations. Except as set forth on Exhibits 3.2(c) and 3.2(e)
attached hereto, there is not pending as of the date hereof any application,
petition, objection or other pleading with the FCC or any public service
commission or similar body having jurisdiction or authority over the
communications operations of WWC Parent which questions the validity of or
contests any Authorization.
(iii) Except as set forth on Exhibit 3.2(e) annexed hereto, no
permit, consent, approval, authorization, qualification or registration of, or
declaration to or filing with, any governmental or regulatory authority or
agency is required to be obtained or made by any party hereto in connection with
the execution and delivery of this Agreement or with the consummation of the
transactions contemplated hereby in order to (A) render this Agreement and the
transactions contemplated hereby valid and effective and (B) enable the parties
hereto to consummate the transactions contemplated hereby.
(iv) The FCC licenses to be contributed by WWC to the
Partnership pursuant to Section 3.1(a) of the Limited Partnership Agreement
shall be contributed free and clear of all liens and encumbrances (except
restrictions imposed on such FCC licenses by the FCC).
(f) Truth and Correctness. No representation or warranty by WWC or
WWC Parent herein, nor any written statement or certificate or other instrument
furnished to INS or INS Parent by WWC or WWC Parent pursuant hereto or in
connection with the transactions contemplated hereby, including the Exhibits
attached hereto, contains any untrue statement of a
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material fact or omits or will omit to state a material fact necessary to make
the statements contained herein or therein, in light of the circumstances under
which such statements are made, not misleading.
3.3 Brokers. On the Closing Date, the Partnership shall pay two hundred
thousand ($200,000) dollars cash (the "Fee") to Xxxxxxxx Pacific Corporation
("APC") and PCM, Inc. ("PCM"). WWC and WWC Parent, jointly and severally,
represent and warrant to INS and INS Parent that, with the exception of the Fee,
no agent, broker, investment banker, person or firm is or will be entitled to
any broker's or finder's fee or any other commission or similar fee directly or
indirectly in connection with the transactions contemplated by this Agreement
based in any way on any arrangements, agreements or understandings made by or on
behalf of WWC or WWC Parent, and WWC and WWC Parent hereby agree to indemnify
and hold harmless INS and INS Parent against and in respect of any claims for
brokerage and other commissions relating to such transactions, other than the
Fee, based in any way on any arrangements, agreements or understandings made by
or on behalf of WWC or WWC Parent. INS and INS Parent, jointly and severally,
represent and warrant to WWC and WWC Parent that, with the exception of the Fee,
no agent, broker, investment banker, person or firm is or will be entitled to
any broker's or finder's fee or any other commission or similar fee directly or
indirectly in connection with the transactions contemplated by this Agreement
based in any way on any arrangements, agreements or understandings made by or on
behalf of INS or INS Parent, and INS and INS Parent hereby agree to indemnify
and hold harmless WWC or WWC Parent against and in respect of any claims for
brokerage and other commissions relating to such transactions, other than the
Fee, based in any way on any arrangements, agreements or understandings made by
or on behalf of INS or INS Parent.
ARTICLE 4
CONDITIONS TO OBLIGATIONS
4.1 Conditions to Obligations of WWC and WWC Parent. The obligations of
WWC and WWC Parent to perform, fulfill or carry out their agreements,
undertakings and obligations herein made or expressed to be performed, fulfilled
or carried out on the Closing Date (including the obligation to make the
Required Capital Contribution in accordance with the Partnership Agreement) are
and shall be subject to fulfillment of or compliance with, on or prior to the
Closing Date, the following conditions precedent, any of which may be waived by
WWC and WWC Parent, in their sole discretion, in whole or in part:
(a) Each of the representations and warranties of INS and INS
Parent contained in this Agreement shall be deemed to have been made again at
and as of the Closing Date and shall then be true in all material respects,
except for changes contemplated by this Agreement. Each of INS and INS Parent
shall have performed and complied in all material respects with all agreements,
covenants and conditions required by this Agreement to be performed or complied
with by INS and INS Parent prior to or at the Closing Date. WWC and
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WWC Parent shall have been furnished with a certificate of INS and INS Parent
signed by their respective President, Chief Executive Officer or Vice President,
dated the Closing Date, certifying to the fulfillment of the foregoing
conditions by INS and INS Parent and to the truth and correctness in all
material respects, except for changes contemplated by this Agreement, as of the
Closing Date of the representations and warranties of INS or INS Parent
contained herein.
(b) There shall not then be pending by any third party any suit or
proceeding to restrain or invalidate, in whole or in part, this Agreement or the
transactions herein contemplated.
(c) WWC and WWC Parent shall have been furnished with an opinion
of Xxxxxxxx & Xxxx, P.C., counsel for INS and INS Parent, dated the Closing Date
in the form attached hereto as Exhibit 4.1(c).
(d) WWC and WWC Parent shall have been furnished with an opinion
of Xxxxx & Xxxxxx, FCC counsel for INS and INS Parent, dated the Closing Date in
the form attached hereto as Exhibit 4.1(d).
(e) All consents, approvals and actions of third parties,
including all approvals from Federal, state and local authorities (including the
FCC and all public service commissions and public utility commissions or
comparable bodies exercising jurisdiction over the Partnership, INS, INS Parent,
WWC or WWC Parent) as may be required for the consummation of the transactions
described herein, as of the Closing Date, shall have been obtained or made
pursuant to a Final Order, which consents and approvals shall not contain any
conditions or restrictions which, in the case of FCC approvals, are not
customary in transactions of this nature, and which in the case of third party
consents and approvals, materially adversely affect the Partnership, WWC, WWC
Parent or their respective businesses or financial condition, or the
consummation of the transactions contemplated hereby.
(f) INS and INS Parent shall have executed and delivered to WWC
and WWC Parent such documents, including the Partnership Agreement and the
agreements described in Article 6 hereof, all in form and substance reasonably
satisfactory to WWC's and WWC Parent's counsel, as shall be effective to
consummate the transactions contemplated hereby.
(g) INS shall have delivered to the Partnership five million
($5,000,000) dollars and the Letter of Credit as required under the Partnership
Agreement.
(h) No statute, rule or regulation shall have been enacted by any
state or Federal government or governmental agency in the United States which
would render the consummation of this Agreement unlawful.
(i) Each of WWC, WWC Parent and any Affiliate (as hereinafter
defined) thereof shall have obtained all required consents under its loan
agreements with senior lenders,
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indentures, and other material agreements to which it is a party or by which it
is bound. "Affiliate" means, with respect to any party hereto, any person or
entity which is controlled by, controls or is under common control with such
party.
(j) All corporate and other proceedings of each of INS and INS
Parent in connection with the transactions contemplated hereby, and all
documents and instruments incidental thereto, shall be reasonably satisfactory
in form and substance to WWC and WWC Parent, and each of INS and INS Parent
shall have delivered to WWC and WWC Parent all such receipts, documents,
instruments and certificates, in form and substance reasonably satisfactory to
WWC and WWC Parent, which WWC or WWC Parent shall have reasonably requested.
4.2 Conditions to Obligations of INS and INS Parent. The obligations of
INS and INS Parent to perform, fulfill or carry out its agreements, undertakings
and obligations herein made or expressed to be performed, fulfilled or carried
out on the Closing Date (including the obligation to make the Required Capital
Contribution in accordance with the Partnership Agreement) is and shall be
subject to fulfillment of or compliance with, on or prior to the Closing Date,
the following conditions precedent, any of which may be waived by INS and INS
Parent in their sole discretion, in whole or in part:
(a) Each of the representations and warranties of WWC and WWC
Parent contained in this Agreement shall be deemed to have been made again at
and as of the Closing Date and shall then be true in all material respects,
except for changes contemplated by this Agreement. Each of WWC and WWC Parent
shall have performed and complied in all material respects with all agreements,
covenants and conditions required by this Agreement to be performed or complied
with by WWC and WWC Parent prior to or at the Closing Date. INS and INS Parent
shall have been furnished with a certificate of WWC and WWC Parent signed by
their respective President, Chief Executive Officer and Vice President, dated
the Closing Date, certifying to the fulfillment of the foregoing conditions by
WWC and WWC Parent and to the truth and correctness in all material respects,
except for changes contemplated by this Agreement, as of the Closing Date of the
representations and warranties of WWC or WWC Parent contained herein.
(b) There shall not then be pending by any third party any suit or
proceeding to restrain or invalidate, in whole or in part, this Agreement or the
transactions herein contemplated.
(c) INS and INS Parent shall have been furnished with an opinion
of Xxxxx Xxxx Xxxxx Constant & Xxxxxxxx, counsel for WWC and WWC Parent, dated
the Closing Date, in the form attached hereto as Exhibit 4.2(c).
(d) INS and INS Parent shall have been furnished with an opinion
of Xxxxxx Xxxxx & Xxxxxxxx, FCC counsel for WWC and WWC Parent, dated the
Closing Date, in the form attached hereto as Exhibit 4.2(d).
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(e) All consents, approvals and actions of third parties,
including all approvals from Federal, state and local authorities (including the
FCC and all public service commissions and public utility commissions or
comparable bodies exercising jurisdiction over the Partnership, INS, INS Parent,
WWC or WWC Parent) as may be required for the consummation of the transactions
described herein, as of the Closing Date, shall have been obtained or made
pursuant to a Final Order, which consents and approvals shall not contain any
conditions or restrictions which, in the case of FCC approvals, are not
customary in transactions of this nature, and which in the case of third party
consents and approvals, materially adversely affect the Partnership, INS, INS
Parent or their respective businesses or financial condition, or the
consummation of the transactions contemplated hereby.
(f) WWC and WWC Parent shall have executed and delivered to INS
and INS Parent such documents, including the Partnership Agreement and the
agreements described in Article 6 hereof, all in form and substance reasonably
satisfactory to INS's and INS Parent's counsel, as shall be effective to
consummate the transactions contemplated hereby.
(g) WWC Parent shall have assigned to the Partnership all rights
to the Authorizations as required under the Partnership Agreement.
(h) No statute, rule or regulation shall have been enacted by any
state or Federal government or governmental agency in the United States which
would render the consummation of this Agreement unlawful.
(i) The approval of INS Parent's loan application to RTFC shall
have been obtained.
(j) All corporate and other proceedings of each of WWC and WWC
Parent in connection with the transactions contemplated hereby, and all
documents and instruments incidental thereto, shall be reasonably satisfactory
in form and substance to INS and INS Parent, and each of WWC and WWC Parent
shall have delivered to INS and INS Parent all such receipts, documents,
instruments and certificates, in form and substance reasonably satisfactory to
INS and INS Parent, which INS or INS Parent shall have reasonably requested.
ARTICLE 5
SURVIVAL; INDEMNITY
5.1 Survival of Representations and Warranties. Notwithstanding any
investigation or review made at any time by or on behalf of any party hereto,
all representations and warranties contained in this Agreement or in the
Exhibits attached hereto or in any of the agreements, certificates or
instruments delivered in connection herewith shall survive the Closing Date for
a
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period of eighteen (18) months after the Closing Date (the "Indemnification
Period") and shall thereupon expire together with any right to indemnification
with respect to such representations and warranties (except to the extent a
written notice asserting a claim for breach of any such representation or
warranty shall have been given prior to the termination of the Indemnification
Period to the party which made such representation or warranty).
5.2 INS and INS Parent's Indemnity. 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), in addition to
any other indemnification provided for under this Agreement, each of INS and INS
Parent shall, jointly and severally, indemnify and hold harmless WWC, WWC Parent
and their respective Affiliates from and against any and all demands, claims,
losses, liabilities, actions or causes of action, assessments, actual damages
(but excluding consequential damages), fines, taxes (including excise and
penalty taxes), penalties, costs and expenses (including interest, 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 WWC, WWC Parent or their respective Affiliates against INS or INS
Parent or asserted by third parties)) (collectively "Losses") incurred or
suffered by WWC, WWC Parent and their respective Affiliates and their respective
officers, directors, partners, employees, stockholders, agents and
representatives arising out of, resulting from, or relating to:
(a) any breach of any of the representations or warranties made by
INS or INS Parent in this Agreement, in the Partnership Agreement, or in any
agreement, certificate, Exhibit or other instrument delivered by INS or INS
Parent pursuant to this Agreement; and
(b) any failure by INS or INS Parent to perform any of its
covenants or agreements contained in this Agreement, in the Partnership
Agreement or in any agreement, certificate or other instrument delivered by INS
or INS Parent pursuant to this Agreement.
5.3 WWC and WWC Parent's Indemnity. During the Indemnification Period
(or thereafter solely with respect to any claim for which indemnification has
been made prior to expiration of the Indemnification Period), in addition to any
other indemnification provided for under this Agreement, each of WWC and WWC
Parent shall, jointly and severally, indemnify and hold harmless INS, INS Parent
and their respective Affiliates from and against any and all Losses (as defined
in Section 5.2, except that reasonable fees and disbursements of counsel,
accountants and other experts shall be included whether they relate to claims,
actions or causes of action asserted by INS, INS Parent or their respective
Affiliates against WWC or WWC Parent or asserted by third parties) incurred or
suffered by INS, INS Parent and their respective Affiliates and their respective
officers, directors, partners, employees, stockholders, agents and
representatives arising out of, resulting from, or relating to:
(a) any breach of any of the representations or warranties made by
WWC or WWC Parent in this Agreement, in the Partnership Agreement, or in any
agreement, certificate,
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Exhibit or other instrument delivered by WWC or WWC Parent pursuant to this
Agreement; and
(b) any failure by WWC or WWC Parent to perform any of its
covenants or agreements contained in this Agreement, in the Partnership
Agreement or in any agreement, certificate or other instrument delivered by WWC
or WWC Parent pursuant to this Agreement.
5.4 Procedure.
(a) 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 5, the party seeking such indemnification (the "Indemnitee")
shall assert a claim for indemnification by giving prompt (in the event of
claims arising by reason of the commencement of litigation against an Indemnitee
by third parties, in no event later than ten (10) days after service of process,
which process expressly indicates a claim for which Indemnitor (as hereinafter
defined) may be liable) written notice thereof (the "Notice"), which shall
describe in reasonable detail the facts and circumstances upon which the
asserted claim for indemnification is based, to the party providing
indemnification (the "Indemnitor") and shall thereafter keep the Indemnitor
reasonably informed with respect thereto; provided, however, 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. In case any third
party claim, action or proceeding (a "Claim") is brought against any Indemnitee,
the Indemnitor shall have the right to assume, conduct and control the defense,
compromise or settlement thereof, by written notice to the Indemnitee of its
intention to do so within thirty (30) days after receipt of the Notice, with
counsel reasonably satisfactory to the Indemnitee, at the Indemnitor's own
expense, and thereupon to prosecute in the name and on behalf of the Indemnitee
any available cross-claims, counter-claims or third-party claims arising with
respect to the Claim. If the Indemnitor shall assume the defense of such Claim,
it shall not settle such Claim unless such settlement includes as an
unconditional term thereof the giving by the claimant or the plaintiff of a
release of the Indemnitee, reasonably satisfactory to the Indemnitee, from all
liability with respect to such Claim. As long as the Indemnitor is contesting
any such Claim in good faith and on a timely basis, the Indemnitee shall not pay
or settle any such Claim. Notwithstanding the assumption by the Indemnitor of
the defense of any Claim as provided in this Section 5.4(a) and without limiting
the Indemnitor's right to assume, conduct and control the defense, compromise or
settlement thereof, the Indemnitee shall be permitted to join in the defense of
such Claim and to employ counsel at its own expense.
(b) If the Indemnitor shall fail to notify the Indemnitee of its
desire to assume the defense of any such Claim within the prescribed thirty (30)
day period set forth in Section 5.4(a) hereof, or shall notify the Indemnitee
that it will not assume the defense of any such Claim, then the Indemnitee may
assume the defense of any such Claim, in which event it may do so in such manner
as it may deem appropriate, and the Indemnitor shall be bound by any
determinations made in any litigation with respect to such Claim or any
settlement thereof effected by the Indemnitee; provided, however, that any such
determinations or settlement shall
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not affect the right of the Indemnitor to dispute the Indemnitee's claim for
indemnification. The failure of the Indemnitor to assume the defense of any
Claim shall not be deemed a concession by Indemnitor that it is required to
indemnify the Indemnitee for the subject matter of such Claim.
(c) Amounts payable by the Indemnitor to the Indemnitee in respect
of any Losses for which any party is entitled to indemnification hereunder shall
be payable by the Indemnitor as incurred by the Indemnitee.
5.5 Indemnification Payments in Cash. All payments by any party hereto
in respect of any indemnification obligation hereunder shall be made by such
party in cash.
5.6 Investigations; Waivers. The survival periods and rights to
indemnification provided for in this Article 5 shall remain in effect
notwithstanding any investigation at any time by or on behalf of any party
hereto or any waiver by any party hereto of any condition to such party's
obligations to consummate the transactions contemplated hereby.
5.7 Indemnity Sole Remedy. In the absence of fraud or of a suit seeking
specific performance as contemplated by this Agreement, the remedies provided to
the parties hereto of this Article 5 shall after the Closing Date be in lieu of
any other remedies to which the respective party is entitled at law or in equity
for any breach or noncompliance by a party with the provisions of this
Agreement.
ARTICLE 6
OTHER AGREEMENTS
6.1 Roaming Agreement. On the Closing Date, WWC Parent and the
Partnership shall enter into a roaming agreement to be negotiated in good faith
between the parties within ninety (90) days after the date hereof.
6.2 Other Operating Agreements. WWC Parent and the Partnership shall
negotiate in good faith a services agreement containing, among other provisions,
provisions relating to the use of the VoiceStream brand name, switching, billing
and customer care; provided, however, that the execution of such an agreement
shall not be a condition to any of the obligations of the parties hereunder and
neither party shall have any liabilities to the other as a result of any failure
to reach agreement on the terms of such an agreement.
6.3 Spectrum Call and Put Option. On the Closing Date, WWC Parent and
the Partnership shall enter into an agreement, to be negotiated in good faith
between the parties within ninety (90) days after the date hereof, pursuant to
the terms of which the Partnership shall have the right, under certain
circumstances, to purchase the Additional Spectrum (as defined in the
Partnership Agreement) upon the terms and conditions set forth therein, and WWC
Parent
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shall have the right to cause the Partnership to purchase the Additional
Spectrum and/or the Des Moines BTA Counties Spectrum (as defined in the
Partnership Agreement) upon the terms and conditions set forth therein.
ARTICLE 7
MISCELLANEOUS
7.1 Expenses. Each party hereto shall bear its own expenses incident to
the negotiation, preparation, authorization and consummation of this Agreement
and the transactions contemplated hereby, including all fees and expenses of its
counsel and accountants, whether or not such transactions are consummated.
7.2 Equitable Remedies. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with the specific terms of the provisions 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.
7.3 Notices. All notices, claims and other communications hereunder
shall be in writing and shall be made by hand delivery, registered or certified
mail (postage prepaid, return receipt requested), facsimile, or overnight air
courier guaranteeing next day delivery (a) if to WWC or WWC Parent, to it at
Western Wireless Corporation, 0000 XX Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx
00000, Attention: General Counsel (Fax No. 000-000-0000), with a copy (which
shall not constitute notice) to Xxxxx Xxxx Xxxxx Constant & Xxxxxxxx, 00
Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxx, Esq.
(Fax No. 000-000-0000), or (b) if to INS and INS Parent, to it at 0000 Xxxxxxxxx
Xxxxx, Xxxx Xxx Xxxxxx, Xxxx 00000, Attention: Xxxxxxx Xxxxx, Chief Executive
Officer (Fax No. 000-000-0000), with a copy (which shall not constitute notice)
to Xxxxxxxx & Xxxx, P.C., 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxx, Xxxx
00000-0000, Attention: Xxxxxxx X. Xxxxx, Esq. (Fax No.: 000-000-0000), or at
such other address as any party may from time to time furnish to the other
parties by a notice given in accordance with the provisions of this Section 7.3
All such notices and communications shall be deemed to have been duly given at
the time delivered by hand, if personally delivered; five (5) 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 overnight air
courier service guaranteeing next day delivery.
7.4 Entire Agreement. This Agreement, together with the Exhibits
attached hereto,
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contains the entire understanding among the parties hereto concerning the
subject matter hereof and may not be changed, modified, altered or terminated
except by an agreement in writing executed by the parties hereto. Any waiver by
any party of any of its rights under this Agreement or of any breach of this
Agreement shall not constitute a waiver of any other rights or of any other or
future breach.
7.5 Remedies Cumulative. Except as otherwise provided herein, each and
all of the rights and remedies provided in this Agreement, and each and all of
the rights and remedies allowed at law and in equity in like case, shall be
cumulative, and the exercise of one right or remedy shall not be exclusive of
the right to exercise or resort to any and all other rights or remedies provided
in this Agreement or at law or in equity.
7.6 Governing Law. This Agreement shall be construed in accordance with
and subject to the laws and decisions of the State of Delaware applicable to
contracts made and to be performed entirely therein.
7.7 Counterparts. This Agreement may be executed in several counterparts
hereof, and by the different parties hereto on separate counterparts hereof,
each of which shall be an original; but such counterparts shall together
constitute one and the same instrument.
7.8 Waivers. No provision in this Agreement shall be deemed waived by
course of conduct, unless such waiver is in writing signed by the parties and
stating specifically that it was intended to modify this Agreement.
7.9 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and to their respective successors
and assigns. Except for assignments to affiliates of a party, neither party
hereto shall have the right to assign any of its rights or obligations under
this Agreement, without the prior written consent of the other party.
7.10 Further Assurances. Each of WWC and WWC Parent shall, at the request
of INS or INS Parent, and each of INS and INS Parent shall, at the request of
WWC or WWC Parent, from time to time, execute and deliver such other
assignments, transfers, conveyances and other instruments and documents and do
and perform such other acts and things as may be reasonably necessary or
desirable for effecting complete consummation of this Agreement and the
transactions herein contemplated.
7.11 Disclosures.
(a) Each of WWC, WWC Parent, INS and INS Parent acknowledges and
confirms in connection with the negotiation of this Agreement and the execution
hereof, during the period from the date hereof through the Closing Date, that
the parties hereto will have furnished to one another certain materials,
information, data and other documentation ("Disclosures") concerning their
business, financial condition and operations which are
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proprietary and confidential. Each party acknowledges the party disclosing such
Disclosures considers them secret and confidential and asserts a proprietary
interest therein. Accordingly, each of WWC, WWC Parent, INS and INS Parent
covenants and agrees that it shall maintain all Disclosures made by another
party in strict confidence and shall not use such Disclosures for its own
benefit or disclose them to third parties, except to its agents,
representatives, bankers, investment bankers, counsel and employees involved in
evaluating the transactions contemplated by this Agreement, its partners (and
the partners or other security holders thereof) or as otherwise required by law.
(b) No public announcement by any party hereto with regard to the
transactions contemplated hereby or the material terms hereof shall be issued by
any party hereto without the prior consent of the other party, except in the
event the parties are unable to agree on a press release and legal counsel for
one party is of the opinion that such press release is required by law and such
party furnishes the other parties a written opinion of outside legal counsel, or
other counsel reasonably acceptable to the party being furnished such opinion,
to that effect, then such party may issue the legally required press release.
(c) This Agreement shall not restrict any party hereto from using
information already known to it, to which it is entitled under existing
agreements, or information generally in the public domain or any information
coming into its possession after it becomes public knowledge unless it became
public knowledge through a breach of this Agreement.
7.12 Termination.
(a) This Agreement may be terminated and the transactions
contemplated hereby may be abandoned, without further obligation of WWC, WWC
Parent, INS or INS Parent, at any time prior to the Closing Date as follows:
(i) by mutual written consent duly authorized by the boards
of directors of WWC, WWC Parent, INS and INS Parent; or
(ii) by any party if the Closing Date shall not have occurred
on or before the first anniversary of the date hereof; provided, however, that
the party exercising such right has not failed to satisfy the conditions to the
transactions contemplated hereby or is not otherwise in default of its
obligations under this Agreement in a manner which results in the failure to
satisfy the conditions to the transactions contemplated hereby of the other
parties; or
(iii) by any party if the consummation of the transactions
contemplated hereby shall be prohibited by a final, non-appealable order, decree
or injunction of a court of competent jurisdiction.
(b) In the event of a termination of this Agreement, no party
hereto shall have any liability or further obligation to any other party to this
Agreement except that nothing herein
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will relieve any party from liability for any breach of this Agreement.
7.13 Amendment. This Agreement may be amended only in writing by an
instrument signed by all of the parties hereto.
7.14 Definitions; etc. Unless the context otherwise requires, the terms
defined in any Section of this Agreement shall have the meanings therein
specified for all purposes of this Agreement, applicable to both the singular
and plural forms of any of the terms defined herein. When a reference is made in
this Agreement to a Section, such reference shall be to a Section of this
Agreement unless otherwise indicated. Whenever the words "include", "includes"
or "including" are used in this Agreement, they shall be deemed to be followed
by the words "without limitation." The use of a gender herein shall be deemed to
include the neuter, masculine and feminine genders wherever necessary or
appropriate. Whenever the word "herein" or "hereof" is used in this Agreement,
it shall be deemed to refer to this Agreement and not to a particular Section of
this Agreement unless expressly stated otherwise. Capitalized terms used herein
which are not defined herein shall have the meaning set forth in the Partnership
Agreement unless the context otherwise requires.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first above written.
WESTERN PCS I IOWA CORPORATION
By: s/Xxxxx X. Xxxxxxxxx
---------------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President/Corporate Development
INS WIRELESS, INC.
By: s/Xxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
WESTERN PCS I CORPORATION
By: s/Xxxxx X. Xxxxxxxxx
---------------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President/Corporate Development
IOWA NETWORK SERVICES, INC.
By: s/Xxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
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