1
EXHIBIT(nn)
TERMINATION OF STOCK PURCHASE AGREEMENT
THIS TERMINATION OF STOCK PURCHASE AGREEMENT (this "Termination") is
made and entered into as of the 30th day of April, 1997, by and between THE XXXX
ALTERNATIVE INCOME FUND, L.P., a Delaware limited partnership (the "Purchaser"),
and INTERCEL, INC., a Delaware corporation (the "Seller").
RECITALS
WHEREAS, Purchaser and Seller executed that certain Stock Purchase
Agreement dated as of March 14, 1997 (the "Purchase Agreement"); and
WHEREAS, Section 8.1(e) of the Purchase Agreement allows for
termination of the Purchase Agreement with the mutual written consent of the
parties, and the parties mutually desire to terminate the Purchase Agreement so
that it shall no longer be in force.
NOW, THEREFORE, for and in consideration of the premises, mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, each intending to be legally bound, do hereby agree as follows:
1. TERMINATION OF PURCHASE AGREEMENT. Pursuant to Section 8.1(e) and
Section 8.2(a) of the Purchase Agreement, Purchaser and Seller hereby terminate
the Purchase Agreement as of this date and agree that the Purchase Agreement is
void and (subject to the next sentence) there shall be no liability on the part
of either party hereto as a result of the Purchase Agreement (except that
nothing herein or in the Purchase Agreement shall relieve either party from
liability for any breach of the Purchase Agreement occurring prior to this
Termination). Seller and Purchaser acknowledge and agree that the provisions of
Section 9.1 of the Purchase Agreement shall survive this Termination.
2. ESCROW AGREEMENT DELIVERIES. Pursuant to Section 3(d) of the Escrow
Agreement dated as of March 14, 1997 (the "Escrow Agreement") by and among
Purchaser, Seller and Bankers Trust Company, as escrow agent (the "Escrow
Agent"), Purchaser and Seller shall promptly execute and deliver to the Escrow
Agent a termination notice substantially in the form attached hereto as Exhibit
A. Purchaser and Seller agree to execute and deliver any other documents,
certificates or notices reasonably required by the Escrow Agent to give effect
to this Termination.
3. MISCELLANEOUS.
(a) BINDING AGREEMENT. The terms, conditions, provisions and agreements
herein contained shall be binding upon and inure to the benefit of the parties
hereto and their respective representatives, successors and permitted assigns.
(b) AUTHORIZATION OF TERMINATION. Purchaser and Seller represent and
warrant, each to the other with respect to itself, that the execution and
delivery of this Termination has been duly authorized by all necessary corporate
action.
(c) GOVERNING LAW. The terms and provisions of this Termination and the
rights and obligations of the parties hereto shall be governed by, and construed
and enforced in
1
2
accordance with, the laws of the State of New York (without regard to choice of
laws principles).
(d) CAPTIONS AND HEADINGS. The captions and headings throughout this
Termination are for convenience and reference only and do not constitute a part
hereof.
(e) COUNTERPARTS. This Termination may be signed in any number of
counterparts all of which shall constitute one and the same document, and may be
executed and delivered via facsimile.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Termination through their duly authorized representatives, as of the day and
year first above written.
PURCHASER:
THE XXXX ALTERNATIVE
INCOME FUND, L.P.
a Delaware limited partnership
BY: WRH Partners, L.L.C., General
Partner
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------ -----------------------
Its: Its: Attorney in Fact
-------------------------- -----------------------
[CORPORATE SEAL]
SELLER:
INTERCEL, INC.,
a Delaware corporation
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxx
----------------------------------- -----------------------------
Its: Vice President/General Counsel Its: President
------------------------------- -----------------------------
[CORPORATE SEAL]
2
3
EXHIBIT A
TERMINATION NOTICE
Via Facsimile
Bankers Trust Company, as Escrow Agent
under the Escrow Agreement referred to below
0 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Pursuant to the terms of the Escrow Agreement dated as of March 14,
1997 (the "Escrow Agreement") by and among InterCel, Inc., The Xxxx Alternative
Income Fund, L.P. and Bankers Trust Company, as Escrow Agent thereunder, you are
notified that the undersigned have terminated the Purchase Agreement referenced
therein. All capitalized terms used herein and not otherwise defined shall have
the meanings ascribed thereto in the Escrow Agreement.
You are hereby directed to promptly (i) liquidate all investments in
the Escrow Fund and pay in full to the Purchaser in immediately available funds
all such amounts as shall be received upon the liquidation of such investments
(and any and all other amounts then on deposit in the Escrow Fund); and (ii)
return the Certificate to the Seller, all in accordance with Section 3(d) of the
Escrow Agreement. The monies received upon liquidation of the Escrow Fund shall
be delivered to the Purchaser by wire transfer to: _________. The Certificate
shall be delivered via overnight delivery service to InterCel, Inc., 0000 X.X.
Xxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000, (000) 000-0000, Attn: Xxxx X. Xxxxxx,
Esq. Please notify the parties hereto via facsimile (in accordance with Section
9 of the Escrow Agreement) when you have completed the liquidation of the
Escrow Fund and delivery of the Certificate pursuant to these instructions.
INTERCEL, INC.
By
--------------------------------------
Its:
THE XXXX ALTERNATIVE INCOME FUND, L.P.
BY: WRH Partners, L.L.C., General Partner
By
--------------------------------------
Its:
Accepted and agreed to
this __ day of ______, 1997
BANKERS TRUST COMPANY,
as Escrow Agent
By:
---------------------------
Its:
A-1
