Exhibit 10.2
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AGREEMENT TO ASSIGN LMDS LICENSE
AGREEMENT TO ASSIGN LMDS LICENSE, dated effective as of June 13, 1999 (the
"Agreement") by and between NEXTLINK Communications, Inc., a Delaware
corporation (the "Assignee"), XXXXXXX.XXX, INC., a Delaware corporation
("SPEEDUS"), formerly known as CellularVision USA, Inc., and XXXXXXXXX.XXX,
L.P., a Delaware limited partnership ("Assignor"), formerly known as Cellular
Vision of New York, L.P.;
WHEREAS, Assignor previously held an LMDS 1150 MHz A Block License (the
"License") from the Federal Communications Commission (the "FCC") for the New
York Primary Metropolitan Statistical Area (i.e., the five boroughs comprising
the City of New York, and the contiguous New York State counties of Westchester,
Rockland and Xxxxxx);
WHEREAS, Assignor disaggregated the License and assigned 850 MHz of the License
to Winstar Communications, Inc. pursuant to the terms of an Agreement to Assign
LMDS License, dated July 10, 1998; and
WHEREAS, Assignor intends to disaggregate and assign, convey and transfer to
Assignee 150 MHz of the remaining spectrum covered by the License, comprised of
the frequencies between 31.075 and 31.225 GHz and to be conveyed to Assignee
pursuant to a license granted by the FCC thereto (the "150 MHz License") and
Assignee wishes to assign the 150 MHz License, upon the terms and subject to the
conditions set forth herein, free and clear of all Liens (as defined below).
NOW, THEREFORE, in consideration of the premises, and the mutual conditions and
obligations set forth herein, the parties hereto hereby agree as follows:
1. Government Approvals; Transition.
(a) As promptly as practicable following the execution and delivery of this
Agreement, Assignor and Assignee will (i) file appropriate applications for the
disaggregation of the License and assignment of the 150 MHz License to Assignee
and a waiver of all FCC rules relating to forfeiture of the 150 MHz License
which may be applicable as a result of Assignor's discontinuance of usage of the
150 MHz license, (ii) make such filings under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 and the related rules and regulations (collectively,
the "HSR Act"), and (iii) make all other regulatory filings and notices that may
be necessary or appropriate to complete the transactions described herein. The
filing fee related to any filing pursuant to the HSR Act will be shared by
Assignee and Assignor on a 50%/50% basis. Following the making of such
applications and filings, both parties will diligently attempt to obtain
successful results with respect thereto in a manner that permits the
consummation of the transactions contemplated herein as soon as practicable.
(b) Prior to the Closing, and in accordance with all applicable legal and
regulatory requirements, Assignor will clear its operations from the spectrum
covered by the 150MHz License.
2. Closing.
The closing of the transactions contemplated herein (the "Closing") shall
occur on the fifth business day (the "Closing Date") following the first date
upon which all of the following conditions are satisfied:
(a) Any applicable waiting period under the HSR Act shall have expired without
action taken to prevent the consummation of the transactions contemplated
herein;
(b) Assignee's due diligence review of the 150 MHz License, which it shall, in
any event, complete not later than June 30, 1999 unless extended by the mutual
agreement of the parties, and Assignee shall have determined (i) that the Lease
as defined in Section 7 below does not violate FCC rules, regulations and
policies and the provisions of the Communications Act of 1934, as amended ("FCC
Rules") or any other laws or regulations, or result in any restriction or
imposition upon the 150 MHz License, or (ii) that there are no defects, adverse
claims, or other issues materially and adversely affecting the value of the 150
MHz License or Assignor's or Assignee's potential right, title or interest
therein, and no material adverse change therein shall have occurred thereafter;
(c) Assignee shall have received opinions of Assignor's legal counsel in form
acceptable to Assignee (i) stating that the Lease described in Section 7 below
does not violate any FCC Rules; and (ii) in connection with FCC and corporate
matters with respect to the 150 MHz License and the transactions contemplated
hereby. Assignee shall also have received, if Assignee so requires, a favorable
opinion from Assignee's FCC counsel to the effect that there is no reason to
expect (x) that the transactions contemplated hereby will materially adversely
affect the regulatory status of any of the FCC wireless licenses currently held
by Assignee or any of its subsidiaries or (y) that there is any reason to
believe that the disaggregation of spectrum is not permissible under applicable
law;
Final FCC Approval shall have been granted by the FCC;
"Final FCC Approval" shall occur on the date on which the FCC shall have
granted its consent to (i) the disaggregation and assignment of the 150 MHz
License to Assignee and, (ii) the waiver of all FCC rules relating to forfeiture
of the 150 MHz License which may be applicable as a result of Assignor's
discontinuance of usage of the 150 MHz license (collectively, the "FCC
Approval"), and such consents and waivers shall have become Final Orders.
"Final Order" shall mean an action by the FCC as to which: (a) no request
by the FCC 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; (b) no petition for rehearing or reconsideration or application
for review of the action is pending before the FCC and the time for filing any
such petition has passed; (c) the FCC will not have the action under
reconsideration on
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its own motion and the time for such reconsideration has passed; and (d) no
appeal to a court, or request for stay by a court, of the FCC's action is
pending or in effect, and, if any deadline for filing any such appeal or request
is designated by statute or rule, it has passed.
(e) the conditions set forth in Section 5 shall have been satisfied.
3. Assignment of 150 MHz License and Payment.
At the Closing, (a) Assignor shall assign the 150 MHz License to Assignee
(the "Assignment") free and clear of all liens, claims, rights of usage by
anyone other than Assignee and all other encumbrances (collectively, "Liens"),
and (b) Assignee shall pay to Assignor the sum of $20 million ("Assignment
Price") less (i) the aggregate amount of the License Prepayments, defined below,
paid to Assignor hereunder, and (ii) to the extent applicable, the aggregate
amount of that portion of each Lease Payment paid to Assignor hereunder equal to
the License Prepayment. Upon the satisfaction of the conditions set forth in
Sections 2(a), (b) and (c) continuing to the earlier of the (x) the Closing Date
or (y) the date Assignee makes its election to terminate the Agreement under
Section 6 or to lease the 150 MHz License under Section 7 below, Assignee shall
pay to Assignor pre-closing consideration in the amount of ONE HUNDRED
SEVENTY-ONE THOUSAND EIGHT HUNDRED THIRTY DOLLARS AND EIGHTY-EIGHT CENTS
($171,830.88) ("Interim Assignment Payments") each month, of which NINE THOUSAND
THREE HUNDRED THIRTY DOLLARS AND EIGHTY-EIGHT CENTS ($9,330.88) will be "License
Prepayment."
4. Representations and Warranties.
(a) Assignor, SPEEDUS and Assignee (each a "Representer") hereby represents and
warrants that (i) the Representer has all requisite power and authority to
execute and deliver this Agreement and perform its obligations hereunder (ii)
all corporate and partnership action necessary for the authorization, execution
and performance by the Representer of its obligations hereunder and thereunder
have been taken, including all action required of directors, shareholders and
partners, as applicable, and (iii) the execution, delivery and performance of
this Agreement does not and will not require the consent of any other person or
entity, contravene the certificate of incorporation or by-laws or certificate of
limited partnership or partnership agreement of the Representer or conflict with
or result in a breach or violation by the Representer of any law, court or
administrative order or contract to which the Representer is a party or by which
the Representer is bound.
(b) Assignor and SPEEDUS hereby represent and warrant that Assignor is the sole
legal and beneficial owner and holder of the 150 MHz License, has the right
under applicable law and FCC regulations to effect the disaggregation of
spectrum contemplated hereby and that the 150 MHz License is and will be as of
Closing, held by Assignor free and clear of all Liens. Without limiting the
foregoing, Assignor hereby represents and warrants that no person or entity
other than Assignor has or will have at Closing the right to use all or any
portion of the 150 MHz License. Assignor represents and warrants that it has
full right, power and authority to sell and transfer its rights, title and
interest in and to the 150 MHz License pursuant to this Agreement. Assignor and
SPEEDUS each hereby further represents and warrants that (i) it is in compliance
in all material
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respects with the Communications Act of 1934, as amended, and the rules,
regulations and policies of the FCC, (ii) Assignor has satisfied all build-out,
renewal, construction and other material regulatory requirements, (iii) there
are no pending complaints, challenges, investigations, petitions, appeals or
other regulatory encumbrances pending or, to the best of the knowledge of
Assignor or SPEEDUS, threatened, against Assignor, SPEEDUS or the 150 MHz
License nor is Assignor or SPEEDUS aware of any basis for any such complaints,
challenges, investigations, petitions, appeals or other regulatory encumbrances,
(iv) Assignor has, and effective upon the Assignment, Assignee will have, the
right to make use of the 150 MHz License to provide all services permitted under
the FCC's rules for LMDS service, and (v) the 150 MHz License is not subject to
forfeiture, and no conditions or circumstances exist which could cause the 150
MHz License to become subject to forfeiture.
(c) Each of Assignor and SPEEDUS will use its best efforts to cause all of its
representations and warranties in this Agreement to remain true and correct at
all times through the Closing Date and to cause all conditions to the Closing
and the Assignment to be satisfied.
5. Closing Conditions.
(a) Each party's obligation to consummate the Closing shall be subject to the
following conditions: (i) the other party's representations and warranties
hereunder shall be true and correct on and as of the Closing Date, as if made
again on such date, (ii) the other party shall have performed all covenants to
have been performed hereunder and thereunder, and (iii) the other party shall
have delivered a certificate of a senior officer as to the matters in clauses
(i) and (ii) above dated as of the Closing Date.
(b) In addition to the conditions set forth in Section 5(a) above, Assignee's
obligation shall be subject to the conditions that (i) there shall be no
injunction or order of any court or government agency, or any appeal thereof,
restraining or invalidating any of the transactions contemplated hereby and (ii)
Assignee shall have received opinions of (x) Assignor's corporate counsel,
Xxxxxxx Xxxx & Xxxxxxxxx, dated as of the Closing Date, in form and substance
reasonably satisfactory to Assignee and covering such portion of the matters
covered by Assignor's and SPEEDUS's representations contained herein as are
customarily covered in legal opinions and subject to customary qualifications,
and (y) Assignor's FCC counsel, Xxxxxxx X. Xxxxxxx P.C. relating to FCC matters,
including but not limited to an opinion, in the case of the Assignment, relating
to the disaggregation and assignment of the 150 MHz License.
6. Termination.
If the Closing Date shall not have occurred on or before April 30,
2000, either party that is not then in material breach of its obligations
hereunder, may, after such date, terminate this Agreement without liability; by
providing written notice of termination to the other party, unless Assignee has
exercised its option to lease the 150 MHz License pursuant to Section 7 below.
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7. Option to Lease.
If the Closing Date shall not have occurred on or before January 1, 2000,
Assignee may elect, by providing written notice to Assignor, to lease the 150
MHz License from Assignor upon the following terms and conditions:
(a) Lease Term. Commencing on the date of the notice to lease and
terminating on the earlier of (i) expiration of the current term of the 150 MHz
License or (ii) the Closing Date, ("Lease Term"), Assignor shall lease to
Assignee the right to exclusively utilize, free of any Liens or rights of
others, the 150 MHz License (the "Lease"). In the event the Lease Term expires
as a result of the expiration of the current term of the 150 MHz License, the
Lease will be renewed by the parties if and when the 150 MHz License is renewed
by the FCC for a term equal to the term of the FCC renewal of the 150 MHz
License; provided that the Assignee is not in breach of any material provision
of this Agreement at the time of such renewal. In the event that Assignee elects
to commence the Lease, each of Assignor and Assignee agree to continue using
commercially reasonable efforts to consummate the Closing subject to Sections 4,
5 and 6 above.
(b) Lease Payment. In consideration of the Lease, during the Lease Term,
Assignee shall pay a monthly lease payment to Assignor equal ONE HUNDRED
SEVENTY-ONE THOUSAND EIGHT HUNDRED THIRTY DOLLARS AND EIGHTY-EIGHT CENTS
($171,830.88) ("Lease Payment"), which represents monthly interest plus
amortized principal of a $20 million loan amortized over 30 years at an interest
rate of 9.75% (the remaining principal amount of such loan being herein referred
to as the "Hypothetical Amortizing Principal"). All License Prepayments made by
Assignee under Section 3 above shall be applied as prepayments of the Lease and
shall serve to reduce (i) the Hypothetical Amortizing Principal and (ii) the
number of Lease Payments due under the Lease during the term of the Lease. For
example, if Assignee makes ten (10) Interim Assignment Payments under Section 3
of this Agreement, then upon the commencement of the Lease, Assignee would be
deemed to have made ten Lease Payments and therefore, if Assignee made no
prepayments on the Lease, Assignee would only be required to make three hundred
and fifty (350) Lease Payments to fully pay the Lease. Assignee shall have the
right at any time, at its sole option, to prepay all or any portion of amounts
due in connection with the Lease by paying the net present value of the
remaining Hypothetical Amortizing Principal (or such portion of the Hypothetical
Amortizing Principal that Assignee desires to pay). At such time as the full
Hypothetical Amortizing Principal is paid in full, whether by prepayment or over
the 30 year amortization period, no further amounts shall be due to Assignor
under the Lease. Upon the termination of the Lease for any reason, Assignee
shall have no obligation to make any further Lease Payments.
(c) Expenses. During the Lease Term, all direct expenses incurred by
Assignee for the operation of the LMDS systems and services under the Lease will
be paid by Assignee. Assignee assumes all liabilities incurred by Assignee
relating to or arising from Assignee's operation of such LMDS systems and
services and ownership of the assets used in such operation throughout the Lease
Term. Assignee is entitled to all of the revenues, other than the Lease Payments
made hereunder, from the operation of such LMDS systems and services.
(d) FCC Compliance. The parties will comply with all applicable FCC rules
and regulations governing the 150 MHz License or the LMDS systems and services
operated under the Lease. Without limiting the generality of the foregoing:
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1. Assignor, at all times, retains ultimate supervisory control over the use
of the 150 MHz License. Assignor will not take any action or fail to take
any action or allow any condition to exist which would cause the 150 MHz
License to be forfeited or its value diminished.
2. With appropriate notice to, consultation with and participation by
Assignee, Assignor will represent Assignee (i) before all state regulatory
agencies with respect to matters within such agencies' jurisdiction that
require the representation or appearance of the owner of the 150 MHz
License and that have not been or cannot be assumed by Assignee; and (ii)
before the FCC with respect to any matters relating to the 150 MHz License,
the operation of the LMDS systems under the Lease as it relates to any FCC
rules, regulations, policies or provisions of the Communications Act of
1934, as amended, and any FCC correspondence and filings. Assignor will,
with the assistance and cooperation of Assignee, take all actions necessary
to keep the Lease and the 150 MHz License in force and shall timely prepare
and submit to the FCC or any other relevant governmental authority all
reports, applications, renewals, filings or other documents necessary to
keep the 150 MHz License and any certificates of public convenience and
necessity or other state regulatory approvals in force and in good
standing. Assignee shall provide Assignor with all information regarding
the operations under the Lease as Assignor shall reasonably request.
3. All LMDS systems and services operated under the Lease will comply with all
applicable governmentally-mandated regulatory programs including, but not
limited to, any priority access requirements. Such compliance may include
collecting applicable fees from subscribers and payment of governmental
assessments for such programs.
4. Nothing in this Section 7 is intended to diminish or restrict Assignor's
obligations as an FCC licensee and both parties desire that this Section 7
be in compliance with FCC Rules. Any term of this Section 7 that would
otherwise violate FCC Rules shall be deemed amended and modified to the
full extent required to comply with such rules, while preserving to the
greatest practicable extent the benefits intended to be conveyed to the
parties hereunder, and the parties will document such amendments and
modifications by written agreement, unless the same would cause either
party substantial and direct economic or regulatory harm.
5. Assignor shall use its best efforts to cause the FCC to renew the term of
the 150 MHz License.
(e) Severability. The provisions of this Section 7 shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Section 7 is invalid or unenforceable, (1) a suitable and
equitable provision shall be substituted therefor in order to carry out, so far
as may be valid and enforceable, the intent and purpose of such invalid or
unenforceable provision and (b) the remainder of this Section 7 shall not be
affected by such invalidity or unenforceability.
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8. Transaction Expenses.
Except as otherwise provided in Section 1(a), each of the parties hereto
will be responsible for its own expenses (including fees and expenses of legal
counsel) incurred in connection with the transactions contemplated hereby. Each
party represents to the other that it has not engaged any broker or finder in
connection with the transaction contemplated hereby, and that it has not
incurred any liability for a broker's or finder's fee or commission in
connection with the transactions contemplated hereby.
9. Publicity; Disclosure.
Without the prior approval of the other party, none of the parties hereto
shall disclose to the public or to any third party any information concerning
the transactions contemplated hereby, other than disclosures to their financial,
legal and other advisors and to governmental authorities or the public as may,
in the opinion of counsel, be required by law. Neither party shall refer to the
other in any press release, marketing materials or other materials prepared for
public dissemination without the prior written consent of the other party.
Notwithstanding the foregoing, SPEEDUS and Assignee shall be permitted to
disclose such details of the transaction contemplated hereby as may be required
by law; provided that the other party shall have the right to review and comment
thereon prior to such disclosure being filed, distributed or otherwise
disclosed. The parties will cooperate in the preparation of a joint press
release or coordinated but separate press releases announcing the effectiveness
of this Agreement.
10. Access.
Until the Assignment, SPEEDUS and Assignor will give Assignee and its
representatives all access during ordinary business hours to the premises and
personnel of Assignor and SPEEDUS and to all accounting, financial and other
records applicable to Assignor as Assignee may reasonably request for the
purpose of confirming compliance with this Agreement and completing Assignee's
due diligence review, and SPEEDUS and Assignor will furnish all information with
respect to the 150 MHz License as Assignee may reasonably request for such
purpose. SPEEDUS and Assignor will cause their executives, employees, attorneys
and accountants to make themselves available to provide reasonable cooperation
to Assignee in connection therewith.
11. Exclusivity.
Neither SPEEDUS nor Assignor shall (nor shall either of them permit their
representatives or stockholders to) discuss a possible sale, lease, use or other
disposition of or by Assignor or SPEEDUS (whether by sale of stock or assets or
otherwise) that is not consistent with the sale and/or Lease to Assignee of the
150 MHz License contemplated hereby or provide any information in connection
therewith to any other party or enter into any agreements or commitments to do
the same.
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12. Assignment.
This Agreement is intended to be a binding agreement between Assignee,
SPEEDUS and Assignor and shall bind and inure to the benefit of the successors
and assigns of such parties; provided that SPEEDUS and Assignor may not assign
their rights or delegate their obligations hereunder without Assignee's prior
written consent, which will not be unreasonably withheld. Assignee may assign
its rights hereunder to any of its wholly-owned or majority controlled
subsidiaries, provided that no such assignment of its rights shall relieve
Assignee of any of its obligations hereunder.
13. Specific Performance; Miscellaneous.
(a) This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter of this Agreement. There are no promises,
terms, conditions obligations or warranties other than those contained in this
Agreement. This Agreement supersedes all prior communications, representations
or agreements, verbal or written, among the parties relating to the subject
matter of this Agreement, including but not limited to the Agreement to Lease
and Assign LMDS License, dated June 13, 1999. This Agreement may not be amended
except in writing executed by the parties.
(b) This Agreement shall be construed and enforced in accordance with the
internal laws of the State of Delaware. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but which together
shall constitute one instrument.
(c) It is understood and agreed that money damages would not be an adequate
remedy for a breach of the Agreement by Assignor or SPEEDUS and that Assignee
shall be entitled to specific performance and injunctive or other equitable
relief as a remedy for any such breach. Assignor and SPEEDUS agree to waive any
requirement for the securing or posting of any bond in connection with such
remedy. Such remedy shall not be deemed to be the exclusive remedy for any such
breach, but shall be in addition to all other remedies available to Assignee at
law or in equity.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
NEXTLINK COMMUNICATIONS, INC.
By: /s/ R. Xxxxx Xxxxxx, Xx.
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Title:Vice President
XXXXXXX.XXX, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Title: Chief Executive Officer
XXXXXXXXX.XXX, L.P.
By: CELLULARVISION CAPITAL CORP.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
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Title: President
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