EXHIBIT 10.2
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FORBEARANCE AGREEMENT AND RELEASE
This Forbearance Agreement and Release (this "AGREEMENT") is
entered
into as of August 29, 2005, by and among
(x) Sprint Nextel Corporation, a Kansas
corporation ("SPRINT", and collectively
with each of Sprint's direct and
indirect subsidiaries now or hereafter
existing and all entities governed by the
Affiliate Agreements (as defined below),
the "SPRINT PARTIES"), and (y) IWO
Holdings, Inc., a Delaware corporation
("IWO"), Independent Wireless One
Corporation, a Delaware corporation ("IWO
CORPORATION") and a wholly owned
subsidiary of IWO, and Independent Wireless
One Leased Realty Corporation, a
Delaware corporation and a wholly-owned
subsidiary of IWO Corporation
(collectively with IWO, and each of IWO's
direct and indirect subsidiaries now
or hereafter existing, the "IWO PARTIES",
and together with the Sprint Parties,
the "PARTIES").
WHEREAS, certain IWO Parties and certain Sprint Parties are parties
to
(i) the Sprint PCS Management Agreement, as
amended, (ii) the Sprint Trademark
and Service Mark License Agreement, as
amended, (iii) the Sprint PCS Services
Agreement, as amended and (iv) the Sprint
Spectrum Trademark and Service Mark
License Agreement, each dated as of
February 9, 1999, as amended (collectively,
the "AFFILIATE AGREEMENTS");
WHEREAS, as of the date hereof Sprint, Italy Acquisition Corp.,
a
Delaware corporation and wholly owned
subsidiary of Sprint, and IWO have entered
into an Agreement and Plan of Merger (the
"MERGER AGREEMENT") pursuant to which
Italy Acquisition Corp. will merge with and
into IWO, with IWO as the surviving
corporation; and
WHEREAS, as a condition and inducement to Sprint's entering into
the
Merger Agreement, the Parties have agreed
to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
promises
set forth herein, and for other good and
valuable consideration, the receipt and
sufficiency of which are hereby
acknowledged, the Parties hereto, intending to
be legally bound, hereby agree as
follows:
1.
AGREEMENT AND PLAN OF MERGER. Sprint and IWO are each executing
and delivering this Agreement
contemporaneously with the execution and delivery
of the Merger Agreement. All defined terms
used but not otherwise defined herein
shall have the meanings ascribed to such
terms in the Merger Agreement.
2.
EFFECTIVENESS OF PROVISIONS. This Agreement (other than SECTION
4) shall be effective from and after the
date hereof; PROVIDED THAT SECTION 3 of
this Agreement shall terminate if the
Merger Agreement is terminated for any
reason other than pursuant to Section
7.1(f)(ii) of the Merger Agreement due to
an intentional breach of the Merger
Agreement or a breach resulting from fraud
or willful malfeasance of an Indemnified
Party; PROVIDED, FURTHER THAT the
effectiveness of such SECTION 3 shall be
immediately reinstated and become in
full force and effect if there occurs a
Consummated Alternative Transaction (as
defined below). SECTION 4 of this Agreement
will become effective immediately
upon the earlier of (i) the Effective Time
and (ii) the occurrence of a
Consummated Alternative Transaction (the
"EFFECTIVENESS TIME"). A "CONSUMMATED
ALTERNATIVE TRANSACTION" means any
Alternative Transaction (after giving effect
to the last sentence of Section 7.2(b) of
the Merger Agreement) (x) that is
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consummated within twelve months following
the termination of the Merger
Agreement for any reason other than
pursuant to Section 7.1(g)(ii) of the Merger
Agreement or (y) the consummation of which
is as a result of or pursuant to any
Acquisition Agreement (other than a
non-binding letter of intent) entered into
within twelve months following the
termination of the Merger Agreement for any
reason other than pursuant to Section
7.1(g)(ii) of the Merger Agreement.
3. AGREEMENT NOT TO SUE.
(a)
From and after the date hereof, so long as this SECTION
3 remains in effect, except for any claims
concerning the Parties' rights or
obligations under this Agreement, the
Merger Agreement and the agreements and
transactions contemplated hereby and
thereby, IWO will not, nor will it allow
any other IWO Party to, (i) commence or in
any manner seek relief against any of
the Sprint Parties or their respective
officers, directors, shareholders,
partners, members, subsidiaries, employees,
agents, attorneys and
representatives (the "IWO RELEASED
PARTIES") through any suit or proceeding
(including injunctive or equitable relief)
relating to any Released Claim (as
defined below); or (ii) become a party to
any suit or proceeding arising from or
in connection with an attempt by or on
behalf of any third party to enforce or
collect an amount based on any Released
Claim (including any claim that will
become a Released Claim as of the Effective
Time). In addition, IWO will not,
nor will it allow any other IWO Party to,
assist the efforts of any third party
attempting to enforce or collect an amount
based on a Released Claim (including
any claim that will become a Released Claim
as of the Effective Time), unless
required to do so by a court of competent
jurisdiction (each, a "PROHIBITED IWO
CLAIM"); PROVIDED THAT no Sprint Party has
asserted against any of the IWO
Parties claims of any type related to any
Prohibited IWO Claim.
(b)
For so long as this SECTION 3 remains in effect, none of
the Parties hereto shall assert against any
other Party hereto that such Party
has waived, lost or relinquished any rights
of any kind, including rights
arising under any of the Affiliate
Agreements, due to such Party's compliance
with this SECTION 3. The Parties further
agree that no Party hereto shall
otherwise be prejudiced in any way for
refraining from commencing litigation
regarding a Released Claim, or any
counter-claim to a Released Claim, in
compliance with this SECTION 3.
4.
GENERAL RELEASES.
(a)
IWO RELEASE OF SPRINT. As of the Effectiveness Time,
except for any claims concerning the
Parties' rights or obligations under this
Agreement, the Merger Agreement and the
agreements and transactions contemplated
hereby and thereby, each of the IWO Parties
releases and forever discharges each
of the IWO Released Parties from all
liabilities, claims, attorneys' fees,
damages, injuries, causes of action, and
losses of any kind (including any
claims for equitable or injunctive relief)
that any of the IWO Parties ever had,
now has, may assert or may in the future
claim to have against any of the IWO
Released Parties by reason of any act or
failure to act in connection with or in
furtherance of, or an occurrence or event
occurring or existing on or before the
Effectiveness Time due to, the merger of
Sprint and Nextel Corporation as of
August 12, 2005 (the "S-N MERGER"), the
implementation of the S-N Merger or the
resulting integration of the companies
following the S-N Merger, including any
alleged breach or violation of or default
under the Affiliate Agreements
resulting therefrom (the "RELEASED
CLAIMS").
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(b)
COMPLETE RELEASE. Effective as of the Effectiveness
Time, this Agreement constitutes the
complete compromise, settlement, accord and
satisfaction of all of the Released
Claims.
(c)
NO RELEASE BY IWO PARTIES OF IWO DIRECTORS, OFFICERS,
ETC. Notwithstanding anything in this
Agreement to the contrary, nothing in this
SECTION 4(C) shall be construed to be a
release by the IWO Parties of any of
their respective offi
