dissenting:
I respectfully dissent.
The practical effect of the majority’s decision, of course, is to reward McCaw for failing to notify the Hansons of the McCaw/AT & T merger and to penalize the Hansons because the FCC, instead of granting authority to conduct the merger within the ten months remaining in the six-year price adjustment period, waited until three months after the price adjustment period expired to consent.
I do not believe that the law supports this result. I think that the word “sale” in section 9 of the original contract between the Hansons and McCaw is ambiguous. I also think that the use of the word “impending” in the phrase “impending sale” in section 7 of the Amendment to that contract does not, as the majority claims, clear up the initial ambiguity.
I start with the proposition that the Hanson/McCaw Option Agreement’s original provision that a price adjustment would occur in the event McCaw “sold or transferred” the System within five years from the closing date of the transaction is ambiguous. The district court agreed, as it had to, since a “sale” can mean in ordinary parlance an executed sale or a contract to sell. See Hanson v. McCaw Cellular Communications, Inc., 881 F.Supp. 911, 917, 919 (S.D.N.Y.1995). Here, the phrase “sale or transfer” could mean either the execution of a sales contract subject to further conditions such as FCC approval, or the closing of such a sales contract by the transfer of title to the System. Since the contract does not specify which meaning the parties intended, it is, as the district court said, “ambiguous.” Id. at 917; see also id. at 919 (“Plaintiffs are correct in saying that the word ‘sale’ sometimes is used in a manner that includes an executory or conditional contract of sale rather than a consummated transaction”). I find further support for this proposition in California law and the common law generally, where the term “sale” is “frequently used in the sense of an agreement to buy or sell.” Universal Sales Corp. v. California Press Mfg. Co., 20 *671Cal.2d 751, 768, 128 P.2d 665, 675 (1942). The district court found this well-settled principle of law irrelevant.
Both the district court and the majority find the original contract unambiguous based upon the use of the word “impending” in section 7 of the Agreement to Modify. It does well here to repeat section 7 in its entirety:
Section 9 of the Option Agreement is amended to specify that the period during ivhich the Purchase Price may be adjusted shall be six (6) years from the Closing Date, instead of five (5) years. For the duration of this period, Optionee [McCaw] agrees to notify Optionors [plaintiffs] of the impending sale or transfer of any interest in the System acquired as a result of the exercise of the Call Option at the time application is made to the FCC for authority to conduct such sale or transfer, if such authority is necessary, and in any event no later than closing such sale or transfer. [Emphasis added.]
As explained in the affidavit of Suzanne Hanson — concededly admissible preliminarily under California law for the purpose of determining whether the contract is ambiguous— the reason that the original Option was renegotiated in January of 1988 was that late in 1987 the FCC changed its policy so as to allow cellular permits to be transferred before a system became operational. McCaw was eager to take advantage of this change in FCC policy by purchasing Hanson’s nonoperational System. Naturally, the Hansons were concerned that McCaw’s purchase of the System a year earlier than originally anticipated would affect the Hansons’ right to a price adjustment as outlined in paragraph 9 of the original Option.
Section 7 of the Amendment, as ultimately negotiated, extended the price adjustment period from five to six years to compensate for the fact that McCaw was purchasing the System earlier than originally contemplated. In doing so, it specified what events would trigger the price adjustment clause, namely, (a) the filing of “an application ... to the FCC” in connection with the sale or transfer, if FCC approval of the sale or transfer were necessary, or (b) if FCC filing were unnecessary, the closing of the transaction. The section 7 amendment further provided that McCaw would notify the Hansons if either of these events occurred during the six-year duration of the price adjustment period.
Thus, the price adjustment period and the notification period were expressly coextensive. This carries with it, it seems to me, the proposition that if either of the events requiring McCaw to notify the Hansons occurred during the six-year period, the Hansons would receive a price adjustment. The actual “additional payment pursuant to the adjustment” was due only in the event there were a closing of the sale or transfer, thus referring back to the clause in the original Option paragraph 9, reading: “The additional payment shall be paid by cashier’s or certified check or by bank wire transfer within ninety (90) days of the closing of any such sale.” This reading of section 9 of the original Option Agreement and section 7 of the Amendment seems to me entirely plausible and certainly precludes summary judgment.
The district court and majority rely on the word “impending” in the phrase “impending sale or transfer,” and find a price adjustment due only if the sale or transfer were completed within the six-year price adjustment period. This interpretation, however, renders meaningless the section 9 language that payment will be due 90 days after “closing” of the sale, thereby distinguishing between a “sale” and a closed sale.
Furthermore, I hardly think that the use of the word “impending” in the Federal Rules of Evidence, in discussing dying declarations, is particularly significant in the context of this privately-negotiated contract. Moreover, I do not think that the use of the word “impending” in F.R.E. 804(b)(2) was particularly well chosen; indeed, the hearsay exception in question speaks both of “imminent” and of “impending” death.
Much to be preferred, in my view, is an overall appreciation of the context in which the phrase is used. It is likely that the parties used the phrase “impending sale or transfer” in the Amendment to their original contract simply to specify one of the events triggering McCaw’s duty to notify and subse*672quently pay the Hansons upon FCC approval, just as the phrase “closing of such sale or transfer,” when FCC approval was not required, specified the other triggering event. If this is correct, these phrases do not shed light on the term “sale” in the original Option, and we are left only with the conceded ambiguity of the original section 9. To interpret this section, parol and other evidence should be admissible at trial under California law. Therefore, summary judgment should have been denied.