**Exhibit 10.2**

 

**ESCROW AGREEMENT**

 

ESCROWAGREEMENT, dated as of June 12, 2003, by and among VIA Wireless LLC, aCalifornia limited liability company (“Seller”), GoldenState Towers,LLC, a Delaware limited liability company (“Purchaser”), andCommonwealth Land Title Company (the “Escrow Agent”, and together withSeller and Purchaser, the “Parties”).

 

WHEREAS, Seller and Purchaser have entered into theAsset Purchase Agreement, dated as of the date hereof (the “PurchaseAgreement”; capitalized terms not defined herein shall have the meaningascribed to them in the Purchase Agreement);

 

WHEREAS,pursuant to Section 2.2(a) of the Purchase Agreement, simultaneously with theexecution of this Agreement, an amount equal to $575,000 is required to bedeposited by Purchaser with the Escrow Agent as a deposit against the PurchasePrice (such amount, plus any earnings from investment in accordance withSection 2.2(a) of the Purchase Agreement, the “Escrow Deposit”);

 

WHEREAS,pursuant to Section 2.2(b) of the Purchase Agreement, at Closing, Purchasershall deposit with the Escrow Agent as security for the payment obligations ofSeller (if any) under Section 9.4 and Article 11 of the Purchase Agreement, anamount, that when added to the Escrow Deposit shall be equal to ten percent(10%) of the Adjusted Purchase Price; and

 

WHEREAS,the Escrow Agent is willing to hold the Escrow Deposit and the Holdback, inaccordance with the provisions of this Agreement and to act as escrow agenthereunder.

 

NOW,THEREFORE, in consideration of the mutual benefits to be derived herefrom andfor other good and valuable consideration, the receipt and sufficiency of whichare hereby acknowledged, the Parties hereto agree as follows:

 

1.                                       Depositsinto Escrow.

 

## (a)                                  Deposit of theEscrow Deposit

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Simultaneouslywith the execution of this Agreement, Purchaser has deposited $575,000 with theEscrow Agent as a deposit against the Purchase Price by transferring funds toBank of America, Account No.12352-20225, for credit to the account of theEscrow Agent, Escrow No. SFO-03-003932 (the “Escrow Account”),Attention:  Linda Rae Paul, receipt ofwhich is hereby acknowledged by the Escrow Agent.

 

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## (b)                                 Deposit ofAdditional Amount at Closing 

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TheEscrow Agent shall notify Purchaser and Seller in writing of its receipt fromPurchaser of the additional funds described in Section 2.2(b) of the PurchaseAgreement to fund the Holdback, within one day Business Day of the receipt ofsuch funds.

 

2.                                       Releaseof Escrow Deposit Prior to Closing.

 

## (a)                                  Return of EscrowDeposit to Purchaser

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If thePurchase Agreement is terminated pursuant to Section 12.1(a) thereof, or byPurchaser pursuant to Sections 12.1(c), 12.1(d) or 12.1(e) thereof, or if theClosing does not occur by the Outside Date, Purchaser may deliver a notice inthe form of Exhibit A (the “Purchaser Disbursement Notice”) to EscrowAgent with a copy to Seller.  Seller mayobject to the Purchaser Disbursement Notice by delivering a notice of objectionto Purchaser with a copy to Escrow Agent within two Business Days followingdelivery of the Purchaser Disbursement Notice; provided, that Seller may notobject to a Purchaser Disbursement Notice in the event that the PurchaseAgreement is terminated by Purchaser pursuant to Section 12.1(c)(i) thereof.  If Seller does not object to the PurchaserDisbursement Notice, or fails to deliver a timely notice of objection, EscrowAgent shall, within four Business Days following delivery of the PurchaserDisbursement Notice, disburse the Escrow Deposit to Purchaser in accordancewith the instructions set forth in the Purchaser Disbursement Notice.  If Seller delivers a timely notice ofobjection to the Purchaser Disbursement Notice, the dispute shall be submittedfor resolution in accordance with Section 5, and Escrow Agent shall disbursethe Escrow Deposit pursuant to the award of the arbitrator or a final,non-appealable court order enforcing such award

 

## (b)                                 Payment of EscrowDeposit to Seller

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If thePurchase Agreement is terminated by Seller pursuant to Sections 12.1(d) or12.1(e) thereof, Seller may deliver a notice in the form of Exhibit B (the “SellerDisbursement Notice”) to Escrow Agent with a copy to Purchaser.  Purchaser may object to the SellerDisbursement Notice by delivering a notice of objection to Seller with a copyto Escrow Agent within two Business Days following delivery of the SellerDisbursement Notice.  If Purchaser doesnot object to the Seller Disbursement Notice, or fails to deliver a timelynotice of objection, Escrow Agent shall, within four Business Days followingdelivery of the Seller Disbursement Notice, disburse the Escrow Deposit toSeller in accordance with the instructions set forth in the Seller DisbursementNotice.  If Purchaser delivers a timelynotice of objection to the Seller Disbursement Notice, the dispute shall besubmitted for resolution in accordance with Section 5, and Escrow Agent shalldisburse the Escrow Deposit pursuant to the award of the arbitrator or a final,non-appealable court order enforcing such award.

 

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3.                                       Releaseof Holdback After Closing

 

## (a)                                  Escrow ReleaseDate

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### (i)                                     Subject to Section3(a)(ii), on the first anniversary of the Closing Date (the “Escrow ReleaseDate”), the Escrow Agent shall disburse to Seller all funds then remainingin the Escrow Account.

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### (ii)                                  If, on the EscrowRelease Date there is outstanding any Indemnity Claim (as hereinafter defined)and a Counter Notice (as hereinafter defined) responding to such IndemnityClaim, the Escrow Agent shall retain that portion of the Holdback equal to thedisputed amount of such Indemnity Claim, and shall distribute to Seller theremaining portion, if any, of the Holdback on the next Business Day.  Any amount retained in accordance with thepreceding sentence shall be distributed when such Indemnity Claim has beenresolved as provided in Section 3(c), unless Purchaser and Seller actingjointly shall otherwise direct the Escrow Agent to distribute such amount.

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## (b)                                 Release UponUndisputed Claim

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Fromtime to time from the Closing Date to the Escrow Release Date, Purchaser maygive notice (each, a “Notice”) to Seller and the Escrow Agent specifyingin reasonable detail the nature and dollar amount of any claim (the “ClaimAmount”) for indemnification (each, an “Indemnity Claim”) thatPurchaser may have under Section 11.1 of the Purchase Agreement. Purchaser maymake more than one Indemnity Claim with respect to any underlying state offacts.  If Seller shall not, withintwenty (20) Business Days after its receipt of an Indemnity Claim (theexpiration of such twenty (20) Business Day period being herein called the “ReturnDate”), have notified the Escrow Agent and Purchaser in writing that Sellercontests the merits or the amount of such Indemnity Claim, such notice to specifyin reasonable detail the basis and amount of such objection (a “CounterNotice”), the Escrow Agent shall on the Business Day following the ReturnDate, deliver to Purchaser, the lesser of (i) the Holdback and (ii) the ClaimAmount set forth in such Indemnity Claim.

 

## (c)                                  Release UponResolution of a Claim

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If aCounter Notice shall have been filed in respect of an Indemnity Claim prior tothe Return Date applicable to such claim, the Parties shall have twenty (20)Business Days from the date of receipt by Purchaser of such Counter Notice, orsuch longer period as the Parties may agree upon, within which to resolveprivately such Indemnity Claim.  If theParties are unable to reach a resolution with respect to any Indemnity Claim,such Indemnity Claim shall be immediately submitted to confidential bindingarbitration pursuant to Section 5, and Escrow Agent shall disburse the lesserof the Holdback and the amount so awarded pursuant to the award of thearbitrator or a final, non-appealable court order enforcing such award.

 

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4.                                       Noticesto Escrow Agent.

 

Anynotice or other communication delivered by Purchaser,on the one hand, and Seller, on the other, to the Escrow Agent shall be concurrently delivered to Seller, on the onehand, and Purchaser, on theother.  Any notice to the Escrow Agent shall indicate by what meanssuch notice has been sent to Purchaseror Seller, as the case may be.

 

5.                                       ARBITRATIONOF DISPUTES.

 

## **IN THE EVENT OF ANY DISAGREEMENT BETWEEN THEPARTIES UNDER THIS AGREEMENT (INCLUDING WITHOUT LIMITATION, A DISAGREEMENTUNDER SECTION 2 OR 3(C)), BUT SUBJECT TO THE TWENTY (20) BUSINESS DAY PERIOD TOPRIVATELY RESOLVE A DISAGREEMENT AS PROVIDED FOR IN SECTION 3(C), SUCHDISAGREEMENT SHALL BE SUBMITTED TO BINDING ARBITRATION IN LOS ANGELES,CALIFORNIA, ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (THE “AAA”)IN ACCORDANCE WITH AAA’S COMMERCIAL ARBITRATION RULES (“AAA RULES”).  ANY DETERMINATION REACHED AS A RESULT OFSUCH ARBITRATION SHALL BE FINAL AND BINDING AMONG THE PARTIES HERETO, AND SHALLBE ENFORCEABLE BY ANY COURT HAVING JURISDICTION OVER THE PARTY AGAINST WHOMENFORCEMENT IS SOUGHT.  ALL COSTS ANDEXPENSES OF SUCH ARBITRATION SHALL BE BORNE EQUALLY BY PURCHASER AND SELLER, PROVIDED,HOWEVER, THAT AS PART OF ANY DETERMINATION THE ARBITRATOR SHALL HAVE THEAUTHORITY, BUT SHALL NOT BE REQUIRED, TO ASSESS THE REASONABLE ATTORNEYS’ FEESAND OTHER REASONABLE COSTS INCURRED IN CONNECTION WITH THE ARBITRATION AGAINSTTHE NON-PREVAILING PARTY IN SUCH ARBITRATION. THE PARTIES SHALL USE GOOD FAITH EFFORTS TO SELECT A SINGLE ARBITRATORWITHIN TEN (10) DAYS OF THE SUBMISSION OF THE DISPUTE TO ARBITRATIONHEREUNDER.  IF THE PARTIES FAIL TO AGREEON A SINGLE ARBITRATOR DURING SUCH 10-DAY PERIOD, THEN EACH PARTY SHALL SELECTAN ARBITRATOR FROM THE APPROVED LIST PROVIDED BY AAA, SUCH SELECTION TO BE MADEBY NOTIFICATION TO THE OTHER PARTY GIVEN IN WRITING WITHIN TEN (10) DAYS OF THESUBMISSION OF THE DISPUTE TO ARBITRATION HEREUNDER (AND THE COSTS OF SUCHARBITRATOR SHALL BE BORNE BY THE PARTY SELECTING THE SAME EXCEPT AS OTHERWISEPROVIDED).  FAILURE OF A PARTY TO GIVENOTICE OF ITS SELECTION SHALL CAUSE THE SINGLE ARBITRATOR SELECTED BY THE OTHERPARTY TO BE THE SOLE ARBITRATOR IN CONNECTION WITH THE APPLICABLE DISPUTEHEREUNDER.  IF EACH PARTY DESIGNATES ANARBITRATOR, THEN WITHIN TEN (10) DAYS AFTER BOTH**

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## **ARBITRATORS HAVE BEEN SO DESIGNATED, SUCHARBITRATORS SHALL DESIGNATE A THIRD ARBITRATOR FROM AN AAA APPROVED LIST.  IF THE FIRST TWO ARBITRATORS DO NOT SELECT ATHIRD ARBITRATOR DURING SUCH TIME PERIOD, THEN THE THIRD ARBITRATOR WILL BEAPPOINTED PURSUANT TO THE AAA RULES. SUCH THIRD ARBITRATOR SHALL BE THE SOLE ARBITRATOR OF THE DISPUTE AND THEDECISION OF SUCH ARBITRATOR HEREUNDER SHALL BE CONCLUSIVE.  ANY ARBITRATOR SELECTED BY THE TWO (2)ARBITRATORS OR AAA TO ARBITRATE A MATTER, AS APPLICABLE, SHALL BE A RETIREDJUDGE OR AN ATTORNEY WITH AT LEAST TEN (10) YEARS OF EXPERIENCE IN THE WIRELESSCOMMUNICATION INDUSTRY.  THE ARBITRATORSHALL BE LIMITED TO THE DETERMINATION OF THE PARTIES RESPECTIVE RIGHTS ANDOBLIGATIONS UNDER THIS AGREEMENT AND, TO THE EXTENT NOT INCONSISTENT HEREWITH,APPLICABLE LAW, AND TO AWARD RELIEF IN ACCORDANCE THEREWITH.  THE ARBITRATOR SHALL HAVE THE RIGHT TODETERMINE THE EXTENT OF DISCOVERY.  EACHPARTY AGREES THAT AT THE TIME OF ANY ARBITRATION UNDER THIS SECTION IT WILLDISCLOSE TO THE OTHER PARTY THE EXISTENCE AND SUBSTANCE OF ANY AGREEMENT ITMAY HAVE WITH AAA.  IN THE EVENTTHAT THE ESCROW AGENT IN GOOD FAITHIS IN DOUBT AS TO WHAT ACTION IT SHOULD TAKE HEREUNDER, THE ESCROW AGENT SHALL BE ENTITLED TO RETAINTHE ESCROW DEPOSIT OR HOLDBACK (OR SUCH PART THEREOF AS IS THE SUBJECT OF SUCHDISAGREEMENT), AS THE CASE MAY BE, UNTIL THE ESCROW AGENT SHALL HAVE RECEIVED (I) A WRITTEN FINAL DECISION OFTHE ARBITRATOR APPOINTED PURSUANT TO THIS SECTION 5 DIRECTING THE DELIVERY OFALL OR SUCH PART OF THE ESCROW DEPOSIT OR HOLDBACK OR (II) A WRITTEN AGREEMENTEXECUTED BY PURCHASER AND SELLER ACTING JOINTLY DIRECTING DELIVERY OF THEESCROW DEPOSIT AND HOLDBACK OR SUCH PART THEREOF.  ANY WRITTEN DECISION REFERRED TO IN CLAUSE (I) ABOVE SHALL BEACCOMPANIED BY A CERTIFICATE OF A DULY AUTHORIZED REPRESENTATIVE OF THEPRESENTING PARTY REASONABLY SATISFACTORY TO THE ESCROW AGENT TO THE EFFECT THATSAID WRITTEN DECISION IS THE DECISION OF THE ARBITRATOR AND IS FINAL.  THE ESCROW AGENT SHALL ACT ON SUCH WRITTENDECISION OF THE ARBITRATOR WITHOUT FURTHER QUESTION.**

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**ASSENTTO ARBITRATION PROVISION**

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**NOTICE:  BYINITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUTOF THE MATTERS INCLUDED IN THE “ARBITRATION OF DISPUTES”**

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**PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDEDBY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVETHE DISPUTE LITIGATED IN A COURT OR JURY TRIAL.  BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIALRIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDEDIN THE “ARBITRATION OF DISPUTES” PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION,YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODEOF CIVIL PROCEDURE.  YOUR AGREEMENT TOTHIS ARBITRATION PROVISION IS VOLUNTARY.**

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**WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TOSUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE “ARBITRATION OFDISPUTES” PROVISION TO NEUTRAL ARBITRATION.**

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|   |                       |   |                          |   |   |
|--------|----------------------------|--------|-------------------------------|--------|--------|
|   | **Seller’s Initials** |   | **Purchaser’s Initials** |

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6.                                       Investmentof the Escrow Deposit and Holdback.

 

Duringthe term of this Agreement, the Escrow Deposit (until Closing) and the Holdback(from Closing until termination of this Agreement) shall be invested andreinvested by the Escrow Agent, in thefollowing investments “Approved Investments”: (i) United States Treasuryobligations, (ii) United States Treasury-backed repurchase agreements issued bya major money center banking institution reasonably acceptable to Seller andPurchaser, or (iii) such other manner as may be reasonably agreed to by Sellerand Purchaser.

 

7.                                       GeneralInstructions.

 

Toinduce the Escrow Agent to acthereunder, it is further agreed by the undersigned that:

 

## (a)                                  The Escrow Agent shall not be under any dutyto give the funds held by it hereunder any greater degree of care than it givesits own similar property and shall not be required to invest any funds heldhereunder except as directed in this Agreement.  Funds held hereunder shall be invested in accordance with Section6.

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## (b)                                 This Agreementexpressly sets forth all the duties of the EscrowAgent with respect to any and all matters pertinent hereto.  No implied duties or obligations shall beread into this Agreement against the EscrowAgent.  The Escrow Agent shall not be bound by theprovisions of any agreement among the other Parties hereto except thisAgreement.

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## (c)                                  The Escrow Agent shall not be liable, exceptfor its own bad faith, gross negligence or willful misconduct, and, except withrespect to claims based upon such bad faith, gross negligence or willfulmisconduct that are successfully asserted against the Escrow Agent, the other Parties hereto shall jointly and severallyindemnify and hold harmless the Escrow Agent(and any successor to the Escrow Agent)from and against any and all losses, liabilities, claims, actions, damages andexpenses, including reasonable attorneys’ fees and disbursements, arising outof and in connection with this Agreement. Without limiting the foregoing, the EscrowAgent shall in no event be liable in connection with its investment orreinvestment of any cash held by it hereunder in good faith, in accordance withthe terms hereof, including without limitation any liability for any delays(not resulting from its own bad faith, gross negligence or willful misconduct)in the investment or reinvestment of the Escrow Deposit or Holdback, or anyloss of interest incident to any such delays. In the event that Purchaseror Seller is required to indemnify and hold harmless the Escrow Agent pursuant to this Section7(c), Purchaser or Seller, as thecase may be, shall have the right to seek contribution from the other Partieshereto (other than the Escrow Agent)for amounts paid or payable in respect of such indemnity to the extentpermitted by law.  Anything in thisAgreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special,indirect or consequential loss or damage of any kind whatsoever (including butnot limited to lost profits), even if the EscrowAgent has been advised of the likelihood of such loss or damage andregardless of the form of action.  TheParties hereto acknowledge that the foregoing indemnities shall survive theresignation or removal of the Escrow Agentor the termination of this Agreement.

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## (d)                                 The Escrow Agent shall be entitled to relyupon any order, judgment, award, certification, demand, notice, instrument orother writing delivered to it hereunder without being required to determine theauthenticity or the correctness of any fact stated therein or the propriety orvalidity of the service thereof.  The Escrow Agent may act in reliance upon anyinstrument or signature believed by it to be genuine and may assume that anyperson purporting to give notice or receipt or advice or make any statement orexecute any document in connection with the provisions hereof has been dulyauthorized to do so.

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## (e)                                  The Escrow Agent may act pursuant to theadvice of counsel with respect to any matter relating to this Agreement andshall not be liable for any action taken or omitted in good faith in accordancewith such advice.

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## (f)                                    The Escrow Agent does not have any interest inthe Escrow Deposit or Holdback but is serving as escrow holder only and havingonly possession thereof.  Purchaser andSeller shall, jointly and severally, pay or reimburse the Escrow Agent upon request for any transfertaxes or other taxes (other 

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## than income taxes) relating to the Escrow Deposit and Holdback incurredin connection herewith and shall, jointly and severally, indemnify and holdharmless the Escrow Agent from anyamounts that it is obligated to pay in the way of such taxes.

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## (g)                                 Certain Tax Matters

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### (i)                                     Purchaser shall includein its taxable income the earnings on the Escrow Deposit.  The EscrowAgent shall file annually or otherwise as required by applicable law allrequired tax information reports or forms (or other tax returns that may berequired by applicable law) reporting such earnings as being for Purchaser’stax account.  Should a change orclarification of applicable law require that all or part of such earnings (the“Taxable Earnings”) be for the Escrow Deposit tax account, (x) Escrow Agent shall file all tax returnsand pay out of such Taxable Earnings all taxes required by applicable law withrespect to such Taxable Earnings and (y) to the extent that such change orclarification is retroactive, Purchaser shall repay to the Escrow Deposit, allamounts previously distributed to Purchaser to pay taxes with respect to suchTaxable Earnings (except to the extent that Purchaser cannot amend its taxreturns and obtain corresponding adjustments, including refunds of taxes paidfrom such amounts, to reflect such change or clarification; provided thatPurchaser shall diligently attempt and use all reasonable efforts to obtainsuch refund and promptly repay such amount). Any payments of income from the Escrow Deposit shall be subject towithholding regulations then in force with respect to United States taxes.

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### (ii)                                  Seller shall includein its taxable income the earnings on the Holdback.  The Escrow Agent shallfile annually or otherwise as required by applicable law all required taxinformation reports or forms (or other tax returns that may be required byapplicable law) reporting such earnings as being for Seller’s tax account.  Should a change or clarification ofapplicable law require that all or part of the Taxable Earnings be for theHoldback tax account, (x) Escrow Agentshall file all tax returns and pay out of such Taxable Earnings all taxesrequired by applicable law with respect to such Taxable Earnings and (y) to theextent that such change or clarification is retroactive, Seller shall repay tothe Holdback amount, all amounts previously distributed to Seller to pay taxeswith respect to such Taxable Earnings (except to the extent that Seller cannotamend its tax returns and obtain corresponding adjustments, including refundsof taxes paid from such amounts, to reflect such change or clarification;provided that Seller shall diligently attempt and use all reasonable efforts toobtain such refund and promptly repay such amount).  Any payments of income from the Holdback shall be subject towithholding regulations then in force with respect to United States taxes.

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### (iii)                               The Parties hereto willprovide the Escrow Agent withappropriate W-9 forms for tax identification number certification.  It is understood that the Escrow Agent shall be responsible forincome reporting only with respect to income earned on investment of fundswhich are a part of the Escrow Deposit and 

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### Holdback, and is not responsible for any other reporting.  This paragraph (g) and paragraphs (c) and(f) of this Section 7 shall survive notwithstanding termination of thisAgreement or the resignation of the EscrowAgent.

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## (h)                                 The Escrow Agent makes no representation as tothe validity, value, genuineness or the collectibility of any security or otherdocuments or instrument held by or delivered to it.

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## (i)                                     The Escrow Agent shall not be called upon toadvise any Party as to the wisdom of selling or retaining or taking orrefraining from any action with respect to any securities or other propertydeposited hereunder.

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## (j)                                     The Escrow Agent (and any successor to the Escrow Agent) may at any time resign assuch by delivering the Escrow Deposit and Holdback and all earnings thereon toany successor to the Escrow Agentjointly designated by the other Parties hereto in writing, or to any court ofcompetent jurisdiction, whereupon the EscrowAgent shall be discharged of and from any and all further obligationsarising in connection with this Agreement. The Escrow Agent shallpromptly deliver written notice of its resignation to the other Partieshereto.  The resignation of the Escrow Agent will take effect on theearlier of (i) the appointment of a successor (including a court of competentjurisdiction) or (ii) the day which is 30 days after the date of delivery ofits written notice of resignation to the other Parties hereto.  If at that time the Escrow Agent has not received a designation of a successor to the Escrow Agent, the Escrow Agent’s sole responsibility after that time shall be tosafe-keep the Escrow Deposit and Holdback until receipt of a designation ofsuccessor to the Escrow Agent or ajoint written disposition instruction by the other Parties hereto or a finalorder of a court of competent jurisdiction.

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## (k)                                  The duties andobligations of the Escrow Agent areas set forth in this Agreement and are purely ministerial in nature.  The EscrowAgent shall have no responsibility for the contents of any writing ofany arbitrator or third party contemplated herein as a means to resolvedisputes and may rely without any liability upon the contents thereof.

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## (l)                                     The Escrow Agent shall be reimbursed for allreasonable expenses, disbursements and advances incurred or made by the Escrow Agent in performance of its dutieshereunder (including reasonable fees, expenses and disbursements of itscounsel).  The fees as indicated on Schedule1 attached hereto, costs and expenses of the Escrow Agent and its counsel shall be borne equally by Purchaserand Seller.  Any fees or expenses of theEscrow Agent or its counsel whichare not paid as provided for herein may be taken from any property held by the Escrow Agent hereunder.

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8.                                       Choiceof Law; Consent to Jurisdiction; Compliance with Law.

 

ThisAgreement shall be governed by, and construed in accordance with, the laws ofthe State of California without regard to the conflicts of law rules of suchstate.

 

9.                                       Successorsand Assigns.

 

ThisAgreement shall be binding upon and inure solely to the benefit of the Partieshereto and their respective successors and permitted assigns, heirs,administrators and representatives and shall not be enforceable by or inure tothe benefit of any third party except as provided in paragraph (j) of Section 7with respect to a resignation by the EscrowAgent.  No Party may assign anyof its rights or obligations under this Agreement without the written consentof the other Parties, except that (i) Seller may merge with UbiquiTel OperatingCompany or UbiquiTel Leasing Company, so long as the surviving entity aftersuch transaction shall, by operation of law or by written agreementsatisfactory to Purchaser, assume all of Seller’s obligations under thisAgreement and under any agreement or other instrument executed by Seller inconnection herewith, and (ii) Purchaser may assign its rights and remedieshereunder to any bank or other financial institution that has loaned funds orotherwise extended credit to Purchaser (any such assignment shall not relievePurchaser of its obligations hereunder).

 

10.                                 Amendments;Entire Agreement.

 

ThisAgreement may only be modified by a writing signed by all of the Partieshereto, and no waiver hereunder shall be effective unless in writing signed bythe Party to be charged.  This Agreementconstitutes the entire agreement among the Parties and supersedes any priorunderstandings, agreements or representations by or among the Parties relatedto the subject matter hereof.  In theevent of any inconsistency between this Agreement and the Purchase Agreement,the Escrow Agreement shall govern.

 

11.                                 Notices.

 

Allnotices and other communications hereunder shall be validly given or made if inwriting, when delivered personally or by a nationally recognized courierservice, and all legal process with regard hereto shall be validly served whenserved in accordance with applicable law, to or on the party to receive suchnotice or other communication at the addresses set forth below, or at suchother address as any party hereto may from time to time advise the otherparties pursuant to this Subsection; Any notice shall be deemed to have beengiven as of the date of delivery (whether accepted or refused) established bythe courier service’s or other service’s proof of delivery.

 

If to Purchaser:

 

GoldenState Towers, LLC 125 Ryan Industrial Court, Suite 109San Ramon, CA 94583

 

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Facsimile: 925-837-9999Attention:  John F. Ricci, ChiefExecutive Officer

 

with a copy (which shall not constitute notice) to:

 

Veronis Suhler Stevenson LLC350 Park Avenue - 7th FloorNew York, New York 10022Attention:  Mr. Jonathan D. Drucker

 

Friedman Kaplan Seiler & Adelman LLP1633 BroadwayNew York, New York 10019Facsimile: 212-833-1250Attention: Gregg S. Lerner, Esq.

 

to Seller:

 

VIA Wireless LLCc/o UbiquiTel Inc.One West Elm Street, Suite 400Conshohocken, PA 19428

Attention:Mr. James J. Volk Chief Financial Officer

 

 with a copy(which shall not constitute notice) to:

 

Patricia E. Knese, Esq. at the same address

 

to Escrow Agent:

 

Commonwealth Land Title Company.525 Market, Suite 2320San Francisco, California 94105Attention: Ms. Linda Rae

 

12.                                 Execution.

 

Executionof this Agreement by the Escrow Agentwill constitute its acceptance of the terms hereof and will acknowledge itsreceipt of the Escrow Deposit.

 

13.                                 Counterparts.

 

ThisAgreement may be executed in one or more counterparts, each of which shall bedeemed an original, and all of which, when taken together, shall constitute oneand the same instrument.  All signaturesof the parties to this Agreement may be transmitted by 

 

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facsimile, and such facsimile will, for all purposes,be deemed to be the original signature of such party whose signature itreproduces and will be binding upon such party.

 

14.                                 SecurityProcedure

 

In theevent funds transfer instructions are given (other than in writing at the timeof execution of the Agreement), whether in writing, by telecopier or otherwise,the Escrow Agent is authorized toseek confirmation of such instructions by telephone call-back to the person orpersons designated on Schedule 2 hereto, and the Escrow Agent may rely upon the confirmations of anyone purportingto be the person or persons so designated. The persons and telephone numbers for call-backs may be changed only inwriting actually received and acknowledged by the Escrow Agent.  The partiesto this Agreement acknowledge that such security procedure is commerciallyreasonable.

 

(Signature Page Follows)

 

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INWITNESS WHEREOF, the parties hereto have executed this Agreement as of the datefirst above written.

 

 
|   | VIA  WIRELESS LLC                                  |
|--------|----------------------------------------------------|
|   |                                               |
|   |                                               |
|   | By                                                 |   |
|   |                                               | Name:  Donald A. Harris |
|   |                                               | Title:  President and Chief Executive  Officer |
|   |                                               |   |
|   |                                               |   |
|   | GOLDENSTATE  TOWERS, LLC                           |
|   |                                               |   |
|   |                                               |   |
|   | By:                                                |   |   |
|   |                                               | Name: |
|   |                                               | Title: |
|   |                                               |   |
|   |                                               |
|   | Agreed  to and accepted:                           |
|   |                                               |   |
|   | COMMONWEALTH  LAND TITLE  COMPANY, AS ESCROW AGENT |
|   |                                               |   |
|   |                                               |   |
|   | By                                                 |   |
|   |                                               | Name: |
|   |                                               | Title: |

 

 

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