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EXHIBIT 10.28
EXECUTION COPY
AGREEMENT FOR PURCHASE AND SALE OF LICENSES
This Agreement for Purchase and Sale of Licenses (the
"Agreement") is entered into as of November 3, 2000 (the "Effective Date") by
and among MVI Corp., an Oregon corporation ("MVI"), Century Personal Access
Network, Inc., a Louisiana corporation ("CPAN"), Wisconsin RSA #7, Limited
Partnership, a Wisconsin limited partnership ("RSA," and together with MVI and
CPAN, the "Sellers"), Centurytel, Inc., a Louisiana corporation and the parent
corporation of MVI and CPAN (the "Shareholder"), and Leap Wireless
International, Inc., a Delaware corporation ("Buyer").
WHEREAS, Sellers have acquired the authorizations of the Federal
Communications Commission (the "FCC") described on Exhibit A to construct and
operate personal communication services ("PCS") wireless telecommunications
systems ("Systems") in the Basic Trading Areas ("BTAs") listed on Exhibit A (the
"Licenses");
WHEREAS, Sellers desire to sell, assign and transfer to Buyer,
and Buyer desires to purchase from Sellers, the Licenses described on Exhibit A
on the terms and subject to the conditions set forth herein;
WHEREAS, the Shareholder will receive a material benefit from the
sale of the Licenses to Buyer and is providing the representations, warranties,
covenants and indemnities contained herein as a material inducement to Buyer
entering into this Agreement; and
WHEREAS, the prior consent of the FCC to the transfer of the
Licenses from Sellers to Buyer is required, and the parties intend that the
transfer of the Licenses contemplated by this Agreement will be consummated only
if such consent to transfer is obtained.
NOW, THEREFORE, in consideration of the mutual covenants herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, each intending to be legally bound,
do hereby agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions. In this Agreement, the following terms have the
meanings specified or referred to in this Section 1.1 and shall be equally
applicable to both the singular and plural forms. Any agreement referred to
below shall mean such agreement as amended, supplemented and modified from time
to time to the extent permitted by the applicable provisions thereof and by this
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Court Order" means any judgment, order, award or decree of any
foreign, federal, state, local or other court or tribunal and any award in any
arbitration proceeding.
"CPAN Lien" shall have the meaning set forth in Section 3.2(c)
below.
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"Encumbrance" means any lien, claim, charge, security interest,
mortgage, pledge, easement, right of first offer or first refusal, conditional
sale or other title retention agreement, defect in title, covenant or other
restriction of any kind, other than the FCC build-out requirements relating to
the Licenses.
"Expenses" means any fees or expenses incurred in connection with
investigating, defending or asserting any claim, action, suit or proceeding
incident to any matter indemnified against under Article X hereunder (including,
without limitation, court filing fees, court costs, arbitration fees or costs,
witness fees, and reasonable fees and disbursements of legal counsel,
investigators, expert witnesses, consultants, accountants and other
professionals).
"FCC Consent" means the consent of the FCC to the assignment of
the Licenses described herein from Sellers to Buyer.
"Final Order" means action by a regulatory authority as to which
(i) no request for stay by such authority of the action is pending, no such stay
is in effect, and, if any deadline for filing any such request is designated by
statute or regulation, it has passed; (ii) no petition for rehearing or
reconsideration of the action is pending before such authority, and the time for
filing any such petition has passed; (iii) such authority does not have the
action under reconsideration on its own motion and the time for such
reconsideration has passed; and (iv) no appeal to a court, or request for stay
by a court, of such authority'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.
"Governmental Body" means any foreign, federal, state, local or
other governmental authority or regulatory body.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended.
"HSR Approval" means the expiration or termination of the
applicable waiting period under the HSR Act.
"IRS" means the Internal Revenue Service.
"Licenses" shall have the meaning set forth in the Recitals to
this Agreement.
"Losses" means any loss, cost, obligation, liability, settlement
payment, award, judgment, fine, penalty, damage, expense, deficiency or other
charge.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or Governmental Body.
"Requirements of Laws" means any foreign, federal, state and
local laws, statutes, regulations, rules, codes or ordinances enacted, adopted,
issued or promulgated by any Governmental Body or common law that is applicable
to the Licenses, the transactions contemplated in this Agreement or any material
aspect of such transactions.
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"Vendor Financing Agreements" shall have the meaning set forth in
Section 9.5 below.
ARTICLE II.
PURCHASE AND SALE
2.1 Purchase of Licenses. On the Closing Date, upon the terms and
subject to the representations, warranties and conditions of this Agreement,
(a) MVI shall sell, transfer, convey, assign, and deliver to
Buyer, and Buyer shall purchase and accept from MVI, the Licenses listed as "MVI
Licenses" on Exhibit A hereto, free and clear of all Encumbrances;
(b) CPAN shall sell, transfer, convey, assign, and deliver to
Buyer, and Buyer shall purchase and accept from CPAN, the Licenses listed as
"CPAN Licenses" on Exhibit A hereto, free and clear of all Encumbrances; and
(c) RSA shall sell, transfer, convey, assign, and deliver to
Buyer, and Buyer shall purchase and accept from RSA, the Licenses listed as "RSA
Licenses" on Exhibit A hereto, free and clear of all Encumbrances.
2.2 Purchase Price Payable at Closing. The purchase price (the
"Purchase Price") for the Licenses shall be $205,167,228 (Two Hundred Five
Million One Hundred Sixty-Seven Thousand Two Hundred Twenty-Eight U.S. Dollars),
payable as follows:
(a) Buyer shall pay to MVI $54,850,342 (Fifty-Four Million Eight
Hundred Fifty Thousand Three Hundred Forty-Two U.S. Dollars), payable in
immediately available funds to an account designated by MVI at least two (2)
business days prior to the Closing Date;
(b) Buyer shall pay to CPAN $57,567,045 (Fifty-Seven Million Five
Hundred Sixty-Seven Thousand Forty-Five U.S. Dollars), payable in immediately
available funds to an account designated by CPAN at least two (2) business days
prior to the Closing Date;
(c) Buyer shall deliver to CPAN a Promissory Note in the form
attached hereto as Exhibit B (the "CPAN Promissory Note") executed by Buyer in
favor of CPAN in an outstanding principal amount equal to $86,501,769
(Eighty-Six Million Five Hundred One Thousand Seven Hundred Sixty-Nine U.S.
Dollars); and
(d) Buyer shall pay to RSA $6,248,072 (Six Million Two Hundred
Forty-Eight Thousand Seventy-Two U.S. Dollars), payable in immediately available
funds to an account designated by RSA at least two (2) business days prior to
the Closing Date.
2.3 Assumed Liabilities. Notwithstanding any other provision of
this Agreement, except for the construction milestone and build-out obligations
imposed by the FCC with respect to the Licenses, which Buyer shall not assume
until after the Closing Date, Buyer shall not assume, or otherwise be
responsible for any liabilities, obligations or indebtedness of Sellers, the
Shareholder, or any of their affiliates, whether direct or indirect, liquidated
or
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unliquidated, known or unknown, whether accrued, absolute, contingent, matured,
unmatured or otherwise, and whether arising out of occurrences prior to, at or
after the date hereof.
2.4 RSA Partnership Approval. As soon as practicable after the
date of this Agreement but in no event later than November 17, 2000, RSA shall
submit this Agreement and the transactions contemplated hereby to the board of
directors of its general partner for approval by the general partner on behalf
of RSA in accordance with RSA's partnership agreement and applicable state law.
RSA shall notify Buyer promptly of its receipt or failure to receive such
approval. Unless RSA and Buyer otherwise agree, if RSA fails to notify Buyer
that it has obtained such approval on or before November 17, 2000, RSA's
obligations hereunder, including without limitation its obligations to sell,
transfer, convey, assign and deliver to Buyer the Licenses listed as "RSA
Licenses" on Exhibit A hereto and Buyer's obligations to purchase and accept
from RSA the Licenses listed as "RSA Licenses" on Exhibit A hereto shall
automatically terminate, the Purchase Price shall be reduced to $193,187,148
(One Hundred Ninety-Three Million One Hundred Eighty-Seven Thousand One Hundred
Forty-Eight U.S. Dollars), the amount to be paid to MVI pursuant to Section
2.2(a) shall be reduced to $53,269,424 (Fifty-Three Million Two Hundred
Sixty-Nine Thousand Four Hundred Twenty-Four U.S. Dollars), the amount to be
paid to CPAN pursuant to Section 2.2(b) shall be reduced to $53,415,955
(Fifty-Three Million, Four Hundred Fifteen Thousand Nine Hundred Fifty-Five U.S.
Dollars) and the term "Licenses" as used herein shall refer only to the Licenses
listed as "MVI Licenses" and "CPAN Licenses" on Exhibit A hereto.
ARTICLE III.
CLOSING
3.1 Closing. The closing of the transfer of the Licenses (the
"Closing") shall occur at the offices of Buyer at 10:00 A.M., local time, on a
date to be specified by Buyer to Sellers, which closing date will not be more
than ten (10) business days after the date on which the FCC, and all other state
and federal regulatory authorities with jurisdiction over the Licenses or any
material aspect of the transactions contemplated in this Agreement, if any,
shall have consented to the transfer of the Licenses from Sellers to Buyer, and
subject in all respects to the fulfillment or waiver of the parties' respective
conditions to closing set forth in Article VIII and Article IX, or such other
time and place as the parties may agree (such date, the "Closing Date").
3.2 Closing Deliveries. Subject to fulfillment or waiver of the
conditions set forth in Article VIII, at the Closing, Buyer shall deliver to
Sellers all of the following:
(a) Immediately available funds in the amount of the cash portion
of the Purchase Price to be paid to each Seller in accordance with the payment
and delivery instructions to be provided by Sellers to Buyer prior to the
Closing;
(b) The CPAN Promissory Note;
(c) A Security Agreement between Buyer and CPAN in the form
attached hereto as Exhibit C (the "Security Agreement") together with any other
documentation and filings necessary to perfect a first priority lien in the
Collateral (as defined in the Security Agreement) (the "CPAN Lien");
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(d) A certificate of good standing of Buyer issued within thirty
(30) days prior to the Closing Date by the Secretary of State of the State of
Delaware;
(e) A certificate of the Secretary of Buyer, dated as of the
Closing Date, as to the incumbency of the officers of Buyer who have executed
this Agreement or any other agreement or instrument delivered in connection
therewith, and as to resolutions of the board of directors of Buyer authorizing
the execution, delivery and performance of this Agreement and the transactions
contemplated hereby;
(f) A certificate of an officer of Buyer, dated as of the Closing
Date, certifying that as of such Closing Date, (i) each representation and
warranty of Buyer contained in this Agreement is true and correct in all
material respects; (ii) Buyer has complied in all material respects with all of
its obligations under this Agreement; and (iii) the condition set forth in
Section 9.5 shall have been satisfied;
(g) An opinion of Buyer's counsel, dated as of the Closing Date,
substantially in the form of Exhibit D attached hereto; and
(h) Such other documents as Sellers and Shareholder may
reasonably request or as may be otherwise necessary to evidence and effect the
transactions contemplated by this Agreement.
3.3 Closing Deliveries of Sellers and the Shareholders. Subject
to fulfillment or waiver of the conditions set forth in Article IX, at the
Closing, Sellers and the Shareholder shall deliver to Buyer all of the
following:
(a) A copy of a shareholder or partner consent action, as
applicable, of each Seller authorizing and approving of the execution and
delivery of this Agreement by such Seller and the performance by such Seller of
its obligations herein;
(b) A certificate of the Secretary of the Shareholder, MVI and
CPAN, dated as of the Closing Date, as to the incumbency of the officers of the
Shareholder or Sellers who have executed this Agreement or any other agreement
or instrument in connection therewith, and as to resolutions of the board of
directors or partners, as applicable, of the Shareholder and Sellers,
authorizing the execution, delivery and performance of this Agreement and the
transactions contemplated hereby;
(c) A certificate of an officer of each of the Sellers and the
Shareholder, dated as of the Closing Date, certifying that as of such Closing
Date, each representation and warranty of such Seller or the Shareholder, as the
case may be, contained in this Agreement is true and correct in all material
respects and that such Seller or the Shareholder, as the case may be, has
complied in all material respects with all of its obligations under this
Agreement;
(d) Assignments by each of the Sellers of the Licenses owned by
it in a form reasonably acceptable to Buyer;
(e) An opinion of Shareholder's counsel, dated as of the Closing
Date, substantially in the form of Exhibit E attached hereto;
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(f) All required third party consents to the consummation by
Seller of the transactions contemplated by this Agreement;
(g) The Security Agreement; and
(h) Such other documents as Buyer may reasonably request or as
may be otherwise necessary to evidence and effect the transactions contemplated
by this Agreement.
In addition to the above deliveries, Sellers and the Shareholder shall take all
steps and actions as Buyer may reasonably request or as may otherwise be
reasonably necessary to put Buyer in actual possession and control of the
Licenses.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF SELLERS AND THE SHAREHOLDER
MVI, CPAN and the Shareholder jointly and severally represent and
warrant to Buyer with respect to themselves and the Licenses listed as "MVI
Licenses" and "CPAN Licenses" on Exhibit A hereto, and RSA and the Shareholder
jointly and severally represent and warrant to Buyer with respect to RSA and the
Licenses listed as "RSA Licenses" on Exhibit A hereto, that the statements
contained in this Article IV are true and correct as of the date of this
Agreement and will be true and correct as of the Closing Date (as though then
made):
4.1 Organization of Sellers and the Shareholder. MVI is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Oregon. CPAN is a corporation duly organized, validly existing
and in good standing under the laws of the State of Louisiana. RSA is a limited
partnership duly organized, validly existing and in good standing under the laws
of the State of Wisconsin. The Shareholder is a corporation duly organized,
validly existing and in good standing under the laws of the State of Louisiana.
MVI and CPAN are indirect wholly owned subsidiaries of Shareholder.
4.2 Authority of Seller and the Shareholder. Each Seller has full
power and authority to own and to operate the Licenses owned by it. The
Shareholder and each Seller has full power and authority to execute, deliver and
perform this Agreement and any agreement, document or instrument executed and
delivered pursuant to this Agreement or in connection with this Agreement.
Except for the approval of this Agreement and the transactions contemplated
hereby by the general partner of RSA contemplated by Section 2.4, the execution,
delivery and performance of this Agreement and any agreement, document or
instrument executed and delivered pursuant to this Agreement or in connection
with this Agreement by the Shareholder and each Seller has been duly authorized
and approved by all necessary action of each Seller, the Shareholder and their
respective affiliates. This Agreement is the legal, valid and binding obligation
of the Shareholder and each Seller enforceable in accordance with its terms
except for the effect thereon of any applicable bankruptcy, insolvency,
reorganization, moratorium, and similar laws affecting the rights of creditors
generally, and general principles of equity.
4.3 No Conflicts. Except for the FCC Consent and HSR Approval,
neither the execution or delivery of this Agreement nor the consummation of any
of the transactions contemplated hereby or compliance with or fulfillment of the
terms, conditions and provisions
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hereof will (i) result in the creation or imposition of any Encumbrance upon the
Licenses except for the CPAN Lien, or (ii) violate or conflict with, result in a
breach of the terms, conditions or provisions of, or constitute a default, an
event of default or an event creating rights of acceleration, termination,
modification or cancellation or a loss of rights under, or require any notice
to, authorization or approval of, filing with or consent under: (1) any material
note, indenture, instrument, agreement, mortgage, lease, License, franchise,
permit or other authorization, right, restriction or obligation to which any of
the Sellers or the Shareholder is a party or the Licenses are subject or by
which any of the Sellers or the Shareholder is bound; (2) any Court Order to
which any of the Sellers or the Shareholder is a party or the Licenses are
subject or by which any of the Sellers or the Shareholder is bound; or (3) any
Requirements of Law affecting any of the Sellers, the Shareholder or the
Licenses.
4.4 The Licenses. MVI validly holds the Licenses listed as "MVI
Licenses" on Exhibit A. CPAN validly holds the Licenses listed as "CPAN
Licenses" on Exhibit A. RSA validly holds the Licenses listed as "RSA Licenses"
on Exhibit A. Except as set forth on Schedule 4.4 hereto, none of the Sellers
has commenced or otherwise undertaken any system build-out activities with
respect to any of the Licenses nor conducted any operations with respect thereto
(other than engaging professional and other services for purposes of planning
the build out). Each Seller has performed as of the Effective Date, and will
have performed as of the Closing Date (other than any required buildout
activities), all of its obligations required to have been performed under the
Licenses, and no event has occurred or condition or state of facts exists which
constitutes or, after notice or lapse of time or both, would constitute a breach
or default under the Licenses which permits or, after notice or lapse of time or
both, would permit revocation or termination of the Licenses, or which might
adversely affect in any material respect the rights of Sellers under the
Licenses. No notice of cancellation, of default or of any dispute concerning the
Licenses, or of any event, condition or state of facts described in the
preceding clause, has been received by, or is known to, Sellers. The Licenses
are valid, subsisting and in full force and effect and may be assigned and
transferred to Buyer in accordance with this Agreement and will continue in full
force and effect thereafter, in each case without (1) the occurrence of any
breach, default or forfeiture of rights thereunder, or (2) except for the FCC
Consent and HSR Approval, the consent, approval, or act of, or the making of any
filing with, any Governmental Body. Sellers have no reason to believe that the
Licenses are not likely to be renewed in the ordinary course or that the holder
of such Licenses, if qualified, would not be entitled to renewal expectancy as
contemplated by FCC rules and regulations. The Licenses (i) were granted on the
grant date specified on Exhibit A, (ii) expire on the expiration dates specified
on Exhibit A, and (iii) are subject to the five-year construction milestone
dates occurring on the date specified on Exhibit A.
4.5 Title to Licenses. Sellers have good and marketable title to
the Licenses, free and clear of all Encumbrances. Upon delivery to Buyer on the
Closing Date, Sellers will transfer to Buyer good and marketable title to the
Licenses, subject to no indebtedness or Encumbrances other than the CPAN Lien.
4.6 No Violation, Litigation or Regulatory Action.
(a) Except for the FCC Consent, Sellers have complied in all
material respects with all Requirements of Law which are applicable to the
Licenses; and
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(b) There is no investigation, claim, action, suit or other
proceeding pending or, to the best knowledge of Sellers and the Shareholder,
threatened against any of the Sellers, relating to any of the Sellers or the
Licenses which, if adversely determined, either would result in the revocation,
cancellation, suspension or adverse modification of the Licenses or would have a
material adverse effect on the ability of Sellers to perform their obligations
hereunder or upon the financial condition, assets, business, prospects or
results of operations of any of the Sellers, nor are any of the Sellers aware of
any reasonable basis for any such investigation, claim, action, suit or
proceeding.
4.7 No Finder. No broker or finder has acted on behalf of Sellers
or the Shareholder in connection with the transactions contemplated hereby.
4.8 FCC Matters.
(a) The Licenses listed as "MVI Licenses" on Exhibit A are
validly issued in the name of MVI. The Licenses listed as "CPAN Licenses" on
Exhibit A are validly issued in the name of CPAN. The Licenses listed as "RSA
Licenses" on Exhibit A are validly issued in the name of RSA. Sellers applied
for and obtained the Licenses in compliance with FCC law, and Sellers are, and
on the Closing Date will be, the exclusive holders of the Licenses. The Licenses
have been granted by Final Order. The Licenses are in full force and effect, are
unimpaired by any acts or omissions of the Sellers or their affiliates, and are
free and clear of any restrictions which might limit the full operation of the
Licenses, other than such restrictions as are imposed on PCS licenses and/or the
wireless telecommunications industry generally. All reports and other documents
required to be filed by Sellers and their affiliates with the FCC and with state
regulatory authorities with respect to the Licenses have been filed. All such
reports and documents are correct in all material respects.
(b) Neither the Sellers nor the Shareholder have engaged in any
course of conduct which would impair Sellers' ability to remain holders of FCC
licenses, and Sellers and the Shareholder are not aware of any reason why the
Licenses might be revoked, canceled, suspended or otherwise transferred as a
result of the transactions contemplated hereby. All material payments and fees
of Sellers due and payable at or prior to the Closing Date to Governmental
Bodies pursuant to the Licenses have been paid. Subject to obtaining the consent
of the FCC to assign the Licenses to Buyer, Sellers have, and on the Closing
Date will have, the absolute and unrestricted right, power and authority under
FCC law to hold the Licenses.
(c) Sellers are in compliance with Section 310(b) of the
Communications Act, and all rules, regulations or policies of the FCC
promulgated thereunder with respect to alien ownership.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF BUYER
The Buyer hereby represents and warrants to Sellers and the
Shareholder that the statements contained in this Article V are true and correct
as of the date of Agreement and will be true and correct as of the Closing Date
(as though then made):
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5.1 Organization of Buyer. Buyer is a corporation, duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
5.2 Authority of Buyer. Buyer has full power and authority to
execute, deliver and perform this Agreement and any agreement, document or
instrument executed and delivered pursuant to this Agreement or in connection
with this Agreement. The execution, delivery and performance of this Agreement
and any agreement, document or instrument executed and delivered pursuant to
this Agreement or in connection with this Agreement by Buyer have been duly
authorized and approved by all necessary action of Buyer. This Agreement is, and
each of the CPAN Promissory Note and the Security Agreement when executed and
delivered will be, the legal, valid and binding agreement of Buyer, enforceable
in accordance with its terms except for the effect thereon of any applicable
bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting
the rights of creditors generally, and general principles of equity.
5.3 No Conflicts. Except for the FCC Consent and HSR Approval,
neither the execution and delivery of this Agreement nor the consummation of any
of the transactions contemplated hereby nor compliance with or fulfillment of
the terms, conditions and provisions hereof will:
(a) Conflict with, result in a breach of the terms, conditions or
provisions of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation or a loss of rights under:
(1) the Amended and Restated Certificate of Incorporation or By-laws of Buyer;
(2) any material note, indenture, instrument, agreement, license, permit or
other right or obligation to which Buyer is a party or any of its properties is
subject or by which Buyer is bound; (3) any Court Order to which Buyer is a
party or by which it is bound; or (4) any Requirements of Laws affecting Buyer.
(b) Require the approval, consent, authorization or act of, or
the making by Buyer of any declaration, filing or registration with any Person.
5.4 Litigation. Except as disclosed on Schedule 5.4, there is no
investigation, claim, action, suit or other proceeding pending or, to Buyer's
knowledge, threatened against Buyer, which if adversely determined, would have a
material adverse effect on the ability of Buyer to perform its obligations
hereunder, nor is Buyer aware of any reasonable basis for any such
investigation, claim, action, suit or proceeding.
5.5 Qualification. Buyer is legally qualified to be an FCC
licensee generally and specifically with regard to the Licenses, and to Buyer's
knowledge, to receive any authorization or approval from any state or local
regulatory authority necessary for it to acquire the Licenses. Buyer is in
compliance with Section 310(b) of the Communications Act, and all rules,
regulations or policies of the FCC promulgated thereunder with respect to alien
ownership.
ARTICLE VI.
ACTION PRIOR TO THE CLOSING DATE
The parties hereto covenant and agree to take the following
actions between the date hereof and the Closing Date:
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6.1 Investigation by Buyer. Sellers shall provide Buyer a copy of
the Licenses and shall furnish to Buyer or its authorized representatives such
additional information concerning the Licenses and Sellers as shall be
reasonably requested, including all such information as shall be necessary to
enable Buyer or its representatives to verify the accuracy of the
representations and warranties contained in this Agreement, to verify that the
covenants of Sellers contained in this Agreement have been complied with and to
determine whether the conditions set forth in Article VIII have been satisfied.
No investigation made by Buyer or its representatives hereunder shall affect the
representations and warranties of the Sellers or the Shareholder hereunder;
provided, however, Buyer shall promptly notify Sellers and the Shareholder to
the extent it discovers any fact or circumstance that indicates that any Seller
or the Shareholder has breached a representation or warranty hereunder.
6.2 Preserve Accuracy of Representations and Warranties. Each of
the parties hereto shall refrain from taking any action that would render any
representation or warranty contained in this Agreement inaccurate in any
material respect as of the Closing Date. Each party shall promptly notify the
other in writing (a) of any action, suit or proceeding that shall be instituted
or threatened against such party to restrain, prohibit or otherwise challenge
the legality of any transaction contemplated by this Agreement, (b) of any
development causing a breach of any of the representations and warranties of
such party in Articles IV or V above, as applicable, or (c) of any lawsuit,
claim, proceeding or investigation that may be threatened, brought, asserted or
commenced against such party which would have been disclosed if such lawsuit,
claim, proceeding or investigation had arisen prior to the date hereof. No
disclosure by any party pursuant to this Section 6.2, however, shall be deemed
to amend or supplement this Agreement or to prevent or cure any
misrepresentation, breach of warranty or breach of covenant therein.
6.3 Consents of Third Parties; Governmental Approvals.
(a) Consents. Sellers will act diligently and reasonably to
secure, before the Closing Date, any consent, approval or waiver, in form and
substance reasonably satisfactory to Buyer, from any party as required to be
obtained to assign or transfer the Licenses to Buyer or to otherwise satisfy the
conditions set forth herein; provided that none of the Sellers nor Buyer shall
have any obligation to offer or pay any consideration in order to obtain any
such consent or approval; and provided, further, that Sellers shall not make any
agreement or understanding affecting the Licenses as a condition for obtaining
any such consent, approval or waiver except with the prior written consent of
Buyer. During the period prior to the Closing Date, Buyer shall act diligently
and reasonably to cooperate with Sellers to obtain the consents, approvals and
waivers contemplated by this Section 6.3(a).
(b) FCC Consents. Sellers and Buyer shall, as promptly as
practicable following the date of this Agreement and in any event within thirty
(30) days after the date of this Agreement, file with the FCC an FCC Form 603
(or other appropriate form) application seeking consent to assign the Licenses
from Sellers to Buyer or Buyer's subsidiary. The parties shall cooperate and use
their respective reasonable efforts to prosecute such application to a favorable
conclusion and shall share equally any filing fees.
(c) HSR Filing. As soon as reasonably practicable following the
execution and delivery of this Agreement and in any event within thirty (30)
days after the date of this
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Agreement, Sellers, the Shareholder and Buyer will take such action, if any, as
may be required to be taken by them under the HSR Act in connection with the
transactions contemplated hereby. Each party will cooperate in the preparation
of, and will file complete and accurate notification and report forms with
respect to the transactions contemplated hereby, pursuant to the HSR Act and the
rules and regulations promulgated thereunder, and will file on a timely basis
such additional information and documentary materials as may be requested by any
Governmental Body pursuant to the HSR Act. Each party will request early
termination of the waiting period under the HSR Act. Each party shall promptly
inform the other of any inquiries or communications from any such Governmental
Body and provide copies of any written communication relating thereto. Each
party shall respond with reasonable diligence and dispatch to any request for
additional information made in response to such filings. Each party shall pay
its respective costs of compliance with the HSR Act; it being understood that
Buyer will pay the applicable application fee.
6.4 Operations Prior to the Closing Date. At all times prior to
the Closing, Sellers shall keep and maintain the Licenses current and in good
standing, including without limitation, making any payment of principal, accrued
interest, penalties or other indebtedness (if any) due to the FCC with respect
to the Licenses on a timely basis. Sellers shall retain control of the Licenses
at all times prior to the Closing. Sellers shall not:
(i) Sell, lease, transfer or otherwise dispose of, or
mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, the
Licenses; or
(ii) Take or agree to take any other action inconsistent
with the consummation of the transactions contemplated by this Agreement.
6.5 Exclusivity. Until the termination of this Agreement, Sellers
and the Shareholder will not (and Sellers and the Shareholder will cause their
respective affiliates not to) (a) solicit, initiate, or encourage the submission
of any proposal or offer from any Person relating to the acquisition of the
Licenses or (b) participate in any discussions or negotiations regarding,
furnish any information with respect to, assist or participate in, or facilitate
in any other manner any effort or attempt by any Person to do or seek any of the
foregoing. Sellers will notify Buyer immediately if any Person makes any
proposal, offer, inquiry, or contact with respect to any of the foregoing, which
notice shall include the identity of the Person making the proposal, offer,
inquiry or contact, and a summary of the principal terms thereof. Likewise,
Buyer (and each of its directors, officers, employees and agents) shall not (x)
solicit, initiate, or encourage the submission of any proposal or offer from any
Person relating to the acquisition of any PCS Licenses in the BTAs which would
be purchased by Buyer in lieu of the Licenses, or (y) participate in any
discussions or negotiations regarding, furnish any information with respect to,
assist or participate in, or facilitate in any other manner any effort or
attempt by any Person to do or seek any of the foregoing. Buyer will notify
Sellers immediately if any Person makes any proposal, offer, inquiry, or contact
with respect to any of the foregoing, which notice shall include the identity of
the Person making the proposal, offer, inquiry or contact, and a summary of the
principal terms thereof.
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ARTICLE VII.
ADDITIONAL AGREEMENTS
7.1 Reasonable Efforts. Subject to the terms and conditions
herein, each of the parties hereto agrees to use all commercially reasonably
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, all things reasonably necessary, proper or advisable under applicable laws
and regulations to consummate and make effective the transactions contemplated
by this Agreement as promptly as practicable. In case at any time after a
Closing any further action is reasonably necessary to carry out the purposes of
this Agreement, the proper agents, officers and directors of each party hereto
shall take such action.
7.2 Governmental Authorizations. Sellers shall not cause or
permit, by any act or failure to act, any of its governmental authorizations or
the Licenses to expire or to be surrendered or modified, or take any action that
would cause any Governmental Body to institute proceedings for the suspension,
revocation, or material and adverse modification of any of such governmental
authorizations or fail to prosecute with due diligence any pending applications
for any Governmental Body in connection with the Licenses.
7.3 Radio Frequency Testing Letter. Simultaneously with the
execution and delivery of this Agreement, Sellers will deliver to Buyer an
executed letter in the form attached hereto as Exhibit F consenting to Buyer's
commencement of radio frequency testing in the BTAs covered by the Licenses.
7.4 Transition of Existing Customers. As promptly as practicable
and in any event within thirty (30) days after the Closing, each Seller shall
transition all existing customers off of the spectrum represented by any of the
Licenses in accordance with applicable Requirements of Law and the rules,
regulations and written policies and orders of the FCC. Without limiting the
foregoing, except for FCC build-out requirements generally applicable to the
Licenses, Buyer shall have no obligation to provide wireless telecommunications
services under the Licenses to any of Sellers' current or future customers, nor
to provide for the transition of Sellers' current or future customers to
third-party carriers providing similar services, which shall remain the sole
responsibility of each of the respective Sellers.
ARTICLE VIII.
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER
The obligations of Buyer under this Agreement shall be, at the
option of the Buyer, subject to the satisfaction of the conditions set forth
below on or prior to the Closing Date. These conditions are for Buyer's sole
benefit and may be waived by Buyer at any time in its sole discretion.
8.1 No Misrepresentation or Breach of Covenants and Warranties.
There shall have been no material breach by Sellers or the Shareholder in the
performance of any of their covenants and agreements herein; each of the
representations and warranties of Sellers and the Shareholder contained or
referred to herein shall be true and correct in all material respects on such
Closing Date as though made on such Closing Date, except for changes therein
specifically
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permitted or contemplated by this Agreement or resulting from any transaction
expressly consented to in writing by Buyer.
8.2 No Restraint or Litigation. No action, suit, investigation or
proceeding (except for any action, suit, investigation or proceeding relating to
FCC matters, which shall be governed solely by the condition set forth in
Section 8.3) shall have been instituted to restrain or prohibit or otherwise
challenge the legality or validity of the transactions contemplated hereby, or
which would materially adversely effect the right of Buyer to own and control
the Licenses following the Closing.
8.3 Final FCC Order and HSR Approval. The FCC shall have
consented to the assignment of the Licenses to Buyer and such consent shall have
become a Final Order, without any additional unreasonable expenses or
requirements imposed on Buyer as a condition to transfer. The waiting period
under the HSR Act, if applicable, shall have expired or been terminated.
8.4 Necessary Consents. Sellers shall have delivered all third
party consents required for Sellers to consummate the transactions contemplated
by this Agreement.
8.5 FCC Debt. Sellers shall have paid in full all outstanding
indebtedness owed to the FCC, including without limitation, accrued interest and
fines and penalties, if any, with respect to the Licenses.
8.6 Closing Deliveries. Sellers and the Shareholder shall have
made all of their Closing Deliveries described in Section 3.3.
ARTICLE IX.
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLERS
The obligations of the Sellers under this Agreement shall be, at
the option of the Sellers, subject to the satisfaction of the conditions set
forth below on or prior to the Closing Date. These conditions are for the sole
benefit of the Sellers and may be waived by Sellers at any time in its sole
discretion.
9.1 No Misrepresentation or Breach of Covenants and Warranties.
There shall have been no material breach by Buyer in the performance of any of
its covenants and agreements herein and each of the representations and
warranties of Buyer contained or referred to in this Agreement shall be true and
correct in all material respects, on the Closing Date as though made on such
Closing Date, except for changes therein specifically permitted by this
Agreement or resulting from any transaction expressly consented to in writing by
Sellers or any transaction contemplated by this Agreement.
9.2 No Restraint or Litigation. No action, suit or proceeding by
any Governmental Body (except for any action, suit or proceeding relating to FCC
matters, which shall be governed solely by the condition set forth in Section
9.3) shall have been instituted to restrain, prohibit or otherwise challenge the
legality or validity of the transactions contemplated hereby.
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9.3 FCC Consent and HSR Approval. The FCC shall have granted its
consent to transfer the Licenses from Seller to Buyer. The waiting period under
the HSR Act, if applicable, shall have expired or been terminated.
9.4 Closing Deliveries. Buyer shall have made all of its Closing
Deliveries described in Section 3.2.
9.5 No Defaults under Vendor Financing Agreements. No event shall
have occurred and no circumstances shall exist which, with notice or passage of
time or both, would constitute an event of default under the vendor financing
agreements or similar credit agreements between Buyer and/or its subsidiaries,
on the one hand, and any of Lucent Technologies, Inc., Nortel Networks, Inc. and
Ericsson Wireless Communications, Inc. or their respective successors and
assigns, on the other hand, (the "Vendor Financing Agreements"), unless Buyer
has obtained a valid waiver of such default from the applicable lender or
lenders under the Vendor Financing Agreements.
ARTICLE X.
INDEMNIFICATION
10.1 Survival. All of the representations and warranties of the
parties contained in Article IV or Article V shall survive the Closing hereunder
(even if the other party knew or had reason to know of any misrepresentation or
breach of warranty at the time of such Closing, unless the other party expressly
waives in writing any such breach at or before the time of such Closing) and
shall continue in full force and effect until the two (2) year anniversary of
the Closing Date, except that the representations and warranties set forth in
Sections 4.2, 4.4, 4.5, and 4.6 shall survive the Closing and continue in full
force and effect forever thereafter.
10.2 Indemnification by MVI, CPAN and the Shareholder. In the
event MVI, CPAN or the Shareholder breaches (or in the event any third party
alleges facts that, if true, would mean MVI, CPAN or the Shareholder has
breached) any of its representations, warranties, or covenants contained herein
and, if there is an applicable survival period pursuant to Section 10.1 above
and the Buyer makes a written claim against MVI, CPAN or the Shareholder within
such period, or in the event of any actual or threatened claim, action, suit or
proceeding against Buyer or any of its subsidiaries arising from MVI's or CPAN's
ownership or operation of the Licenses listed as "MVI Licenses" or "CPAN
Licenses" on Exhibit A hereto prior to the Closing or arising from or relating
to the transitioning of existing customers off the spectrum represented by the
Licenses listed as "MVI Licenses" or "CPAN Licenses" on Exhibit A pursuant to
Section 7.4 hereof, then MVI, CPAN and the Shareholder jointly and severally
agree to indemnify the Buyer and its directors, officers, stockholders, agents,
successors and assigns from and against the entirety of any Losses or reasonable
Expenses any such person may incur through and after the date of the claim for
indemnification resulting from, arising out of, relating to, in the nature of,
or caused by the breach (or the alleged breach), or such claim, action, suit or
proceeding.
10.3 Indemnification by RSA. In the event RSA breaches (or in the
event any third party alleges facts that, if true, would mean RSA has breached)
any of its representations, warranties, or covenants contained herein and, if
there is an applicable survival period pursuant
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to Section 10.1 above and the Buyer makes a written claim against RSA within
such period, or in the event of any actual or threatened claim, action, suit or
proceeding against Buyer or any of its subsidiaries arising from RSA's ownership
or operation of the Licenses listed as "RSA Licenses" on Exhibit A hereto prior
to the Closing or arising from or relating to the transitioning of all existing
customers off the spectrum represented by the Licenses listed "RSA Licenses" on
Exhibit A pursuant to Section 7.4 hereof, then RSA and the Shareholder jointly
and severally agree to indemnify the Buyer and its directors, officers,
stockholders, agents, successors and assigns from and against the entirety of
any Losses or reasonable Expenses any such person may incur through and after
the date of the claim for indemnification resulting from, arising out of,
relating to, in the nature of, or caused by the breach (or the alleged breach),
or such claim, action, suit or proceeding.
10.4 Indemnification by Buyer. In the event Buyer breaches (or in
the event any third party alleges facts that, if true, would mean Buyer has
breached) any of its representations, warranties, or covenants contained herein
and, if there is an applicable survival period pursuant to Section 10.1 above
and any of the Sellers or the Shareholder makes a written claim against Buyer
within such period, or in the event of any actual or threatened claim, action,
suit or proceeding against any of the Sellers or the Shareholder arising from
Buyer's ownership or operation of the Licenses following the Closing, then Buyer
agrees to indemnify Sellers, the Shareholder and their respective directors,
officers, stockholders, successors and assigns from and against the entirety of
any Losses or reasonable Expenses any such person may incur through and after
the date of the claim for indemnification resulting from, arising out of,
relating to, in the nature of, or caused by the breach (or the alleged breach),
or such claim, action, suit or proceeding.
10.5 Certain Limitations. Notwithstanding any provision of this
Agreement to the contrary, the maximum aggregate liability of MVI and CPAN
pursuant to their indemnification obligations under Section 10.2 shall be
$198,919,156. Notwithstanding any provision of this Agreement to the contrary,
the maximum liability of RSA pursuant to its indemnification obligations under
Section 10.3 shall be $6,248,072. Notwithstanding any provision of this
Agreement to the contrary, the maximum liability of Shareholder pursuant to its
indemnification obligations under Section 10.2 and 10.3 shall be $205,167,228;
provided that in no event shall the maximum aggregate liability of MVI, CPAN,
RSA and Shareholder exceed $205,167,228. Notwithstanding any provision of this
Agreement to the contrary, the maximum aggregate liability of Buyer pursuant to
its indemnification obligations under Section 10.4 shall be $205,167,228. In no
event shall any Indemnified Party (as defined below) be entitled to receiver any
special, punitive, incidental or consequential damages.
10.6 Notice of Claims.
(a) Any party (the "Indemnified Party") seeking indemnification
under this Article X shall give to the party obligated to provide
indemnification to such Indemnified Party (the "Indemnitor") a notice (a "Claim
Notice") describing in reasonable detail the facts giving rise to any claim for
indemnification hereunder and shall include in such Claim Notice (if then known)
the amount or the method of computation of the amount of such claim, and a
reference to the provision of this Agreement or any agreement, document or
instrument executed pursuant hereto or in connection herewith upon which such
claim is based; provided, that a Claim Notice
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shall be given promptly after the Indemnified Party knows or reasonably should
have known of the circumstances giving rise to the claim; provided further that
failure to give such notice shall not relieve the Indemnitor of its obligations
hereunder except to the extent it shall have been prejudiced by such failure.
(b) Subject to Section 10.5, after the giving of any Claim Notice
pursuant hereto, the amount of indemnification to which an Indemnified Party
shall be entitled under this Article X shall be determined: (i) by the written
agreement between the Indemnified Party and the Indemnitor; or (ii) an award
from an arbitrator pursuant to Section 12.11 hereof or by a final judgment or
decree of any court of competent jurisdiction. The judgment or decree of a court
shall be deemed final when the time for appeal, if any, shall have expired and
no appeal shall have been taken or when all appeals taken shall have been
finally determined. The Indemnified Party shall have the burden of proof in
establishing the amount of Losses and Expenses suffered by it.
10.7 Third Person Claims.
(a) Subject to Section 10.7(b), the Indemnified Party shall have
the right to conduct and control, through counsel of its choosing, the defense,
compromise or settlement of any third Person claim, action or suit against such
Indemnified Party as to which indemnification will be sought by any Indemnified
Party from any Indemnitor hereunder, and in any such case the Indemnitor shall
cooperate in connection therewith and shall furnish such records, information
and testimony and attend such conferences, discovery proceedings, hearings,
trials and appeals as may be reasonably requested by the Indemnified Party in
connection therewith; provided, that the Indemnitor may participate, through
counsel chosen by it and at its own expense, in the defense of any such claim,
action or suit as to which the Indemnified Party has so elected to conduct and
control the defense thereof; and provided, further, that the Indemnified Party
shall not, without the written consent of the Indemnitor (which written consent
shall not be unreasonably withheld), pay, compromise or settle any such claim,
action or suit, except that no such consent shall be required if, following a
written request from the Indemnified Party, the Indemnitor shall fail, within
fourteen (14) days after the making of such request, to acknowledge and agree in
writing that, if such claim, action or suit shall be adversely determined, such
Indemnitor has an obligation to provide indemnification hereunder to such
Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall
have the right to pay, settle or compromise any such claim, action or suit
without such consent, provided that in such event the Indemnified Party shall
waive any right to indemnity therefor hereunder unless such consent is
unreasonably withheld.
(b) If any third Person claim, action or suit against any
Indemnified Party is solely for money damages (and, where a Seller or the
Shareholder is the Indemnitor, such claim, action or suit will have no
continuing effect in any material respect on the Licenses), then the Indemnitor
shall have the right to conduct and control, through counsel of its choosing,
the defense, compromise or settlement of any such third Person claim, action or
suit against such Indemnified Party as to which indemnification will be sought
by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has
acknowledged and agreed in writing that, if the same is adversely determined,
the Indemnitor has an obligation to provide indemnification to the Indemnified
Party in respect thereof, and in any such case the Indemnified Party shall
cooperate
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in connection therewith and shall furnish such records, information and
testimony and attend such conferences, discovery proceedings, hearings, trials
and appeals as may be reasonably requested by the Indemnitor in connection
therewith; provided, that the Indemnified Party may participate, through counsel
chosen by it and at its own expense, in the defense of any such claim, action or
suit as to which the Indemnitor has so elected to conduct and control the
defense thereof. Notwithstanding the foregoing, the Indemnified Party shall have
the right to pay, settle or compromise any such claim, action or suit, provided
that in such event the Indemnified Party shall waive any right to indemnity
therefor hereunder unless the Indemnified Party shall have sought the consent of
the Indemnitor to such payment, settlement or compromise and such consent was
unreasonably withheld, in which event no claim for indemnity therefor hereunder
shall be waived.
10.8 Amount of Indemnification Payments. In calculating any Loss
or Expense there shall be deducted any insurance recovery in respect thereof
(and no right of subrogation shall accrue hereunder to any insurer).
ARTICLE XI.
TERMINATION
11.1 Termination. Anything contained in this Agreement to the
contrary notwithstanding, this Agreement may be terminated:
(a) By the mutual written consent of Sellers and Buyer;
(b) By either Buyer on the one hand, or Sellers and the
Shareholder on the other hand, upon written notice to the other, in the event
the other party (the "Breaching Party") has materially breached its
representations, warranties or covenants contained in this Agreement and failed
to cure such breach within the 30-day cure period specified in this subsection;
provided, however, that the party claiming such breach (i) is not itself in
material breach of its representations, warranties or covenants contained
herein, (ii) promptly notifies the Breaching Party in writing (the "Termination
Notice") of its intention to exercise its rights under this Agreement as a
result of the breach, and (iii) specifies in such Termination Notice the
representation, warranty or covenant of which the Breaching Party is allegedly
in material breach;
(c) By either Buyer on the one hand, or Sellers on the other
hand, upon written notice to the other, upon the filing by any of the Sellers or
the Shareholder or by Buyer, as the case may be, or having filed against it and
remaining pending for more than thirty (30) days, a petition under Title 11 of
the United States Code or similar state law provision seeking protection from
creditors or the appointment of a trustee, receiver or debtor in possession;
(d) By either Buyer on the one hand, or Sellers on the other
hand, upon written notice to the other, if a court of competent jurisdiction
shall have issued an order, decree or ruling permanently restraining, enjoining
or otherwise prohibiting any of the transactions contemplated by this Agreement,
and such order, decree, ruling or other action shall have become final and
non-appealable;
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(e) By either Buyer on the one hand, or Sellers on the other
hand, upon twenty (20) days' prior written notice of such termination, if the
Closing shall not have occurred on or before the one (1) year anniversary of the
Effective Date of this Agreement; or
(f) By Sellers upon twenty (20) days prior written notice of such
termination, if any of the lenders under the Vendor Financing Agreements shall
have accelerated any of the indebtedness thereunder following a default by Buyer
thereunder.
11.2 Effect of Termination. In the event of termination of this
Agreement by either party, except as otherwise provided herein, all rights and
obligations of the parties under this Agreement shall terminate without any
liability of any party to any other party (except for any liability of any party
then in breach of its covenants hereunder). The provisions of Sections 11.2,
12.1, 12.6, 12.7, 12.8, 12.11, 12.12, and 12.13 shall expressly survive the
expiration or termination of this Agreement. Nothing is this Section 11.2 shall
be deemed to release any party from any liability for breach by such party of
its obligations under this Agreement or from any obligations that exist under
separate agreements between the parties.
ARTICLE XII.
GENERAL PROVISIONS
12.1 Confidential Nature of Information. Each party agrees that
it will treat in confidence all documents, materials and other information which
it shall have obtained regarding the other party during the course of the
negotiations leading to the consummation of the transactions contemplated hereby
(whether obtained before or after the date of this Agreement), the investigation
provided for herein and the preparation of this Agreement and other related
documents, all in accordance with the terms of the existing Non-Disclosure
Agreement among the parties.
12.2 No Public Announcement; Press Releases. No party shall,
without the approval of the other (the Sellers and the Shareholder shall be
considered one party for the purposes of this Section 12.2), make any press
release or other public announcement concerning the transactions contemplated by
this Agreement, except as and to the extent that any such party shall be so
obligated by law, in which case the other party shall be advised and the parties
shall use their reasonable efforts to cause a mutually agreeable release or
announcement to be issued; provided that the foregoing shall not preclude
communications or disclosures necessary to implement the provisions of this
Agreement; to comply with accounting and Securities and Exchange Commission
disclosure obligations, applicable FCC disclosure obligations or applicable
disclosure obligations under the HSR Act; or to preclude Buyer from issuing a
press release or press releases with respect to the transaction hereunder; and
provided further Sellers and the Shareholder hereby consent to Buyer issuing a
press release with respect to this Agreement promptly after the execution of
this Agreement in the form set forth in Exhibit G attached hereto and upon the
closing of the transactions contemplated hereby in a form mutually agreeable to
the parties.
12.3 Notices. All notices, certifications, requests, demands,
payments and other communications hereunder shall be in writing and shall be
deemed to have been duly given and delivered if sent by overnight delivery, by a
nationally-recognized overnight delivery
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service; if mailed, by first class certified mail, postage prepaid, or delivered
personally; or if sent by facsimile, with transmission confirmed by a printout
from the facsimile machine and simultaneously followed by the original
communications by first class certified mail, postage prepaid:
If to MVI, CPAN or the Shareholder:
CenturyTel, Inc.
100 CenturyTel Drive
Monroe, LA 71203
Attention: Stewart Ewing
Telephone: 318-388-9512
Fax: 318-388-1728
With a copy (which shall not constitute notice) to:
CenturyTel, Inc.
100 CenturyTel Drive
Monroe, LA 71203
Attention: Stacey W. Goff, Esq.
Telephone: 318-388-9539
Fax: 318-388-9488
If to RSA:
Bell, Gierhart & Moore, S.C.
44 East Mifflin Street
Madison, WS 53701
Attention: Hugh H. Bell
Telephone: 608-257-3784
Fax: 608-257-3757
With a copy to:
LVT Corporation
Main Street
Camp Douglas, WS 54618
Attention: Paul Berg
Telephone: 608-427-6515
Fax: 608-427-3438
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If to Buyer:
Leap Wireless International, Inc.
10307 Pacific Center Court
San Diego, California 92121
Attention: Legal Department
Telephone: 858-882-6000
Facsimile: 858-882-6040
or to such other address or addresses as may hereafter be specified by notice
given by any of the above to the others. Notices given by United States
certified mail as aforesaid shall be effective on the third business day
following the day on which they were deposited in the mail. Notices delivered in
person shall be effective upon delivery. Notices given by facsimile shall be
effective when transmitted, provided facsimile notice is confirmed by telephone
and is transmitted on a business day during regular business hours.
12.4 Successors and Assigns.
(a) The rights of any party under this Agreement shall not be
assignable by such party hereto prior to the Closing without the written consent
of the other, except that the rights (but not obligations) of Buyer hereunder
may be assigned prior to the Closing, without the consent of Sellers or the
Shareholder, to any of its affiliates, subsidiaries and successors ("Permitted
Assignees").
(b) This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their successors and permitted assigns. The successors
and permitted assigns hereunder shall include without limitation, in the case of
Buyer, any Permitted Assignees as well as the successors in interest to such
Permitted Assignee. Nothing in this Agreement, expressed or implied, is intended
or shall be construed to confer upon any Person other than the parties and
successors and Permitted Assignees, any right, remedy or claim under or by
reason of this Agreement.
12.5 Entire Agreement; Amendments. This Agreement and the
Exhibits referred to herein and the documents delivered pursuant hereto contain
the entire understanding of the parties hereto with regard to the subject matter
contained herein or therein, and supersede all prior agreements, understandings
or letters of intent between or among any of the parties hereto. This Agreement
shall not be amended, modified or supplemented except by a written instrument
signed by an authorized representative of Buyer, on the one hand, and Sellers
and the Shareholder, on the other hand.
12.6 Waivers. Any failure of Buyer on the one hand, or Sellers or
the Shareholder, on the other hand, to comply with any obligation, covenant,
agreement or condition herein may be waived by the other party only by a written
instrument signed by Buyer or Sellers, as applicable, granting such waiver, but
such waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure.
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12.7 Expenses. Each party hereto will pay all of its own costs
and expenses incident to its negotiation and preparation of this Agreement and
the consummation of the transactions contemplated hereby, including the fees,
expenses and disbursements of its counsel and advisors. In the event any party
shall bring an action or arbitration in connection with the performance, breach
or interpretation of this Agreement, the prevailing party in any such action or
arbitration shall be entitled to recover from the losing party all reasonable
costs and expenses of such action or arbitration, including attorneys' fees.
12.8 Partial Invalidity. Wherever possible, each provision hereof
shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without invalidating
the remainder of such provision or provisions or any other provisions hereof,
unless such a construction would be unreasonable; provided, however, that if the
removal of such offending term or provision materially alters the burdens or
benefits of any of the parties under this Agreement, the parties agree to
negotiate in good faith such modifications to this Agreement as are appropriate
to ensure the burdens and benefits of each party under such modified Agreement
are reasonably comparable to the burdens and benefits originally contemplated
and expected.
12.9 Execution in Counterparts. This Agreement may be executed in
one or more counterparts which may be delivered by facsimile, each of which
shall be considered an original instrument, but all of which shall be considered
one and the same agreement, and shall become binding when one or more
counterparts have been signed by each of the parties hereto and delivered to
each of the other parties hereto.
12.10 Further Assurances. From time to time following the
Closing, Sellers and the Shareholder shall execute and deliver, or cause to be
executed and delivered, to Buyer such other instruments of conveyance and
transfer as Buyer may reasonably request or as may be otherwise necessary to
more effectively convey and transfer to, and vest in, Buyer and put the Buyer in
possession of the Licenses.
12.11 Resolution of Disputes. Except with respect to a breach of
the obligations of confidentiality set forth in Section 12.1 and actions
detrimental to the acquisition of the Licenses contemplated hereunder, as to
which the non-breaching party shall have the right to seek specific performance,
injunctive remedy or other equitable remedies, senior management employees of
Buyer and Sellers shall meet and negotiate in good faith to reach a satisfactory
resolution to any dispute arising in connection with this Agreement. If such
negotiations do not result in a resolution within five (5) days after the first
meeting of such representatives, then any dispute, claim or controversy arising
under this Agreement or in any way related to this Agreement, or its
interpretation, enforceability or inapplicability may be submitted to binding
arbitration at the election of either Buyer or Sellers. The arbitration shall be
conducted by a single arbitrator. The arbitration shall be conducted in Denver,
Colorado in accordance with the Commercial Arbitration Rules of the American
Arbitration Association. The arbitration award shall be in writing and shall be
final and binding, and judgment on the award may be entered in any court having
jurisdiction thereof.
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12.12 Governing Law. This Agreement shall be governed by,
enforced and construed in accordance with the laws of the State of Delaware,
without regard to choice of law principles.
12.13 Specific Performance. Notwithstanding anything herein to
the contrary, if Buyer, Sellers or the Shareholder fails to perform any of its
obligations under this Agreement, the aggrieved party shall have the right, in
addition to all other rights or remedies, to specific performance of the terms
hereof.
12.14 Headings. Subject headings are included for convenience
only and shall not effect the interpretation of any provisions of this
Agreement.
12.15 Waiver of Jury Trial. To the extent permitted by applicable
law, Buyer, Sellers and the Shareholder hereby waive trial by jury in any
litigation in any court with respect to, in connection with, or arising out of
this Agreement, the Security Agreement or the CPAN Promissory Note, or any
document related to this Agreement, the Security Agreement or the CPAN
Promissory Note, or the validity, protection, interpretation, collection or
enforcement of this Agreement, the Security Agreement or the CPAN Promissory
Note. Buyer, Sellers and the Shareholder agree that this provision is a specific
and material aspect of this Agreement and acknowledge that the other parties
hereto would not enter into this Agreement if this section were not part of the
Agreement, the Security Agreement and the CPAN Promissory Note.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the day and year first above written.
MVI: BUYER:
MVI Corp. Leap Wireless International, Inc.
By: /s/ R. STEWART EWING, JR.
----------------------------------
Name: R. Stewart Ewing, Jr. By: /s/ HARVEY P. WHITE
Its: Executive Vice President ---------------------------------
Name: Harvey P. White
Its: Chairman
CPAN:
Century Personal Access Network, Inc.
By: /s/ R. STEWART EWING, JR.
----------------------------------
Name: R. Stewart Ewing, Jr.
Its: Executive Vice President
RSA:
Wisconsin RSA #7, Limited Partnership
By: /s/ R. STEWART EWING, JR.
----------------------------------
Name: R. Stewart Ewing, Jr.
Its: Attorney-in-Fact
SHAREHOLDER:
Centurytel, Inc.
By: /s/ R. STEWART EWING, JR.
----------------------------------
Name: R. Stewart Ewing, Jr.
Its: Executive Vice President
23
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EXHIBIT A
- -------------------------------------------------------------------------------------------------------
BTA #/ FCC CALL FCC FCC MARKET NAME CHANNEL 1990 GRANT EXP. 5-YEAR
MTA # SIGN LICENSES FILE # BLOCK/ POPS DATE DATE CONSTR.
# MHZ MILESTONE
DATE
- -------------------------------------------------------------------------------------------------------
A-1
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EXHIBIT B
FORM OF PROMISSORY NOTE
B-1
26
EXHIBIT C
FORM OF SECURITY AGREEMENT
C-1
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EXHIBIT D
SUBJECT MATTER OF OPINION OF BUYER'S COUNSEL
Subject to appropriate qualifications and assumptions set forth in the
Opinion, the Opinion of Buyer's counsel shall state the following:
1. Buyer has been duly incorporated and is validly existing and is in
good standing under the laws of the State of Delaware. The execution, delivery
and performance of the Purchase Agreement, the CPAN Promissory Note and the
Security Agreement by Buyer have been duly authorized by all necessary action on
the part of the Buyer.
2. The Purchase Agreement, the CPAN Promissory Note and the Security
Agreement have been duly executed and delivered by Buyer.
3. No authorization, approval or consent of, or exemption or other
action by, or registration or filing with, any Governmental Body is required in
connection with the execution and delivery of the Purchase Agreement or the Note
and performance of the terms and conditions thereof by Buyer under any statute,
rule or regulation applicable to the Buyer other than (i) FCC Approval, (ii)
filing under, and the expiration of the applicable waiting period under, the HSR
Act, and (iii) such other authorizations, approvals, consents, exemptions,
registrations or filings as shall have been made or secured by the date hereof.
4. The execution and delivery of the Purchase Agreement, the CPAN
Promissory Note and the Security Agreement and the performance thereof by Buyer
do not conflict with, result in a breach or violation of, or constitute a
default under, any of the terms, conditions or provisions of (i) the Amended and
Restated Certificate of Incorporation and By-laws of Buyer, (ii) the material
agreements of Buyer or (iii) any present statute, rule or regulation applicable
to Buyer.
D-1
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EXHIBIT E
SUBJECT MATTER OF OPINION OF SELLERS' COUNSEL
Subject to appropriate qualifications and assumptions set forth
in the Opinion, the Opinion of Sellers' counsel shall state the following:
1. The Shareholder and each of the Sellers has been duly formed and is
validly existing and is in good standing under the laws of the state of its
formation. The execution, delivery and performance of the Purchase Agreement by
the Shareholder and each of the Sellers has been duly authorized by all
necessary action on the part of the Shareholder, the Sellers and their
affiliates.
2. The Purchase Agreement has been duly executed and delivered by the
Sellers and the Shareholder and constitutes the legally valid and binding
obligation of the Sellers and the Shareholder and is enforceable against the
Sellers and the Shareholder in accordance with its terms.
3. No authorization, approval or consent of, or exemption or other
action by, or registration or filing with, any Governmental Body is required in
connection with the execution and delivery of the Purchase Agreement and
performance of the terms and conditions thereof by the Shareholder or the
Sellers under any statute, rule or regulation applicable to the Shareholder or
the Sellers other than (i) the FCC Approval referred to in paragraph 6 below;
(ii) filing under, and the expiration of the applicable waiting period under,
the HSR Act; and (iii) such other authorizations, approvals, consents,
exemptions, registrations or filings as shall have been made or secured by the
date hereof.
4. The execution and delivery of the Purchase Agreement and the
performance of the terms and conditions thereof by the Shareholder and the
Sellers do not conflict with, result in a breach or violation of, or constitute
a default under, any of the terms, conditions or provisions of (i) the governing
documents of Sellers or the Shareholder; (ii) the material agreements of the
Sellers or the Shareholder or (iii) any present statute, rule or regulation
applicable to the Sellers or the Shareholder.
5. The licenses, authorizations and permits listed on Exhibit A hereto
(the "FCC Licenses") are all the licenses, authorizations and permits issued by
the Federal Communications Commission (the "FCC") with respect to the operation
of PCS systems in the BTAs, except for radio control/backhaul frequencies. The
FCC Licenses are validly held by the Sellers, are in full force and effect and
constitutes all licenses, authorizations and permits required from the FCC to
operate a personal communications services system in the geographic areas
identified on Exhibit A hereto, except for radio control/backhaul frequencies.
6. The FCC has granted its consent to the assignment to Buyer of the FCC
Licenses (the "FCC Approval"). Upon consummation of the transactions
contemplated by the Purchase Agreement and upon receipt by the FCC of a letter
advising of the consummation of such transaction, Buyer will hold the FCC
Licenses and such FCC Licenses will be in full force and effect.
E-1
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7. Other than rulemaking proceedings concerning the PCS industry
generally, (i) there is no FCC judgment, decree or order that has been issued
against or in respect of the FCC Licenses that would materially impair the FCC
Licenses or the operation of a PCS system thereunder, and (ii) there is no
notice of violation, proceeding, investigation or other action by or before the
FCC, or on appeal from an order of the FCC, pending or, to the best of counsel's
knowledge, threatened against or in respect of the FCC Licenses. Each Seller has
timely filed all reports and paid all fees required to be filed or paid by it in
connection with the FCC Licenses.
8. To the best of counsel's knowledge, no event has occurred that is
likely to, or after notice or lapse of time or both would likely, result in the
revocation, termination or renewal with materially adverse conditions of the FCC
Licenses.
E-2
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EXHIBIT F
November __, 2000
- -------------------------
- -------------------------
- -------------------------
- -------------------------
Dear ___________:
Leap Wireless International, Inc. ("Leap"), MVI Corp., Century Personal Access
Network, Inc., Wisconsin RSA #7, Limited Partnership, and Centurytel, Inc.
(collectively, "Centurytel") are parties to that certain Agreement For Purchase
and Sale of Licenses dated as of November __, 2000 (the "Agreement"). Leap
desires to immediately commence radio test transmissions and analyses of the
spectrum covered by Centurytel's Personal Communications Services FCC
Licenses(s) for the Basic Trading Areas described on the exhibit attached
hereto. For purposes of this testing and analysis, Leap and/or a third party
equipment vendor will need to operate various pieces of radio transmitting and
receiving equipment in portions of the frequency bands authorized for use under
Centurytel's Licenses for the purposes of conducting technical trials. These
tests will not involve paying customers or the provision of commercial
telecommunications service.
This letter is intended to further memorialize Centurytel's consent to and
authorization of such testing, consistent with the terms of the Agreement. We
acknowledge that Centurytel continues to remain responsible for complying with
all of the operating conditions and requirements associated with the Licenses
pending the completion of the transaction between our companies. Furthermore,
Leap agrees that in conducting its tests, Leap will ensure that (i) all
equipment used for the tests operating in the relevant spectrum covered by
Centurytel's Licenses will comply with all material FCC requirements for use of
this spectrum; (ii) that Leap or any third party conducting testing at Leap's
direction will cease transmission of its equipment immediately upon the written
request of Centurytel, and (iii) Leap will provide access to Centurytel's
representatives to these tests if and as Centurytel may desire. Leap further
agrees that the testing and analysis to be conducted by Leap will not interfere
with the use of any spectrum other than Centurytel's Licenses, nor interfere
with any commercial services currently operated by Centurytel under the
Centurytel Licenses.
Please indicate your agreement with the aforesaid by countersigning this letter
below.
Sincerely,
Robert F. Anselmo
Vice President, Business Development
Centurytel, Inc.
- -----------------------------
- -----------------------------
By:
-----------------------------------
Title:
--------------------------------
F-1
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EXHIBIT G
[PRESS RELEASE]
Schedule 4.4
The markets served by the following Licenses have undergone system build-out
activities and currently conduct, or previously have conducted, operations with
respect thereto:
1. Grand Rapids, Michigan
2. Battle Creek, Michigan
3. Muskegon, Michigan
4. Jackson, Michigan
5. Kalamazoo, Michigan
6. Saginaw - Bay City, Michigan
7. Lansing, Michigan
G-1