Prepared by XXXXXXX CORPORATION xxx.xxxxxxxxxxxxxx.xxx
ASSET PURCHASE AGREEMENTAMONGTRITON COMMUNICATIONS L.L.C.,THE OTHER TRITON PARTIESANDRURAL CELLULAR CORPORATION
Dated as of
November 6, 1999
LIST OF EXHIBITS AND SCHEDULES
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| Exhibits
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| *Exhibit 3.3(d)
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| Form of Instrument of Assumption
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| *Exhibit 8.1(b)(1)
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| Form of General Assignment and Instrument of Conveyance
(FCC Licenses)
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| *Exhibit 8.1(b)(2)
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| Form of Xxxx of Sale and Assignment Agreement
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| *Exhibit 8.1(c)
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| Form of Real Property Lease Assignment
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| *Exhibit 8.1(d)
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| Form of Contract Assignment
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| *Exhibit 8.1(e)(i)
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| Form of Kleinbard, Xxxx & Xxxxxxx LLP legal opinion letter
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| *Exhibit 8.1(e)(ii)
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| Form of Xxxxxx & Xxxxxxx legal opinion letter
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| *Exhibit 8.2(j)
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| Form of Purchaser's counsel legal opinion letter
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Schedules
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| Schedule A
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| Triton Entities and RSAs
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| Schedule 1
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| Certain Permitted Liens
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| Schedule 1.1
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| Acquisition Agreements
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| Schedule 2.2(l)
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| Certain Excluded Assets
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| *Schedule 2.4(j)
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| Stay Bonus Letter Recipients
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| Schedule 3.3(a)
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| Specified Indebtedness
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| Schedule 4.5(b)
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| Licenses
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| Schedule 4.7
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| Owned Real Property
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| Schedule 4.8(a)
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| Real Property Leases
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| Schedule 4.8(b)
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| Material Personal Property Leases
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| Schedule 4.8(c)
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| Certain Contracts
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| Schedule 4.11
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| Taxes
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| Schedule 5.5
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| FCC Matters
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| Schedule 5.6
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| Financing
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| Schedule 6.3(a)
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| Material Consents
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| Schedule 6.8(a)
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| Financial and Operational Reports
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| *Schedule 9.8(b)
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| Certain Employees
*Omitted
in accordance with Item 601(b)(2) of Regulation S-K as not material to an investment decision. The Registrant will supply any omitted exhibit or schedule to the
Commission upon request.
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is entered into as of November 6, 1999 among Triton
Communications L.L.C., a Delaware limited liability company ("Triton Communications"), Triton Cellular Alabama 5 License Company L.L.C., a Delaware limited liability company ("Alabama 5 License
Company"), those operating entities listed on Schedule A attached hereto (the "Triton Operating Entities" and, collectively, with Triton Communications and Alabama 5 License Company, the
"Triton Entities"), Triton Cellular Partners, L.P., a Delaware limited partnership ("Triton Cellular" and, collectively, with the Triton Entities, the "Triton Parties"), and Rural Cellular
Corporation, a Minnesota corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, the Triton License Entities (as hereinafter defined) are the sole holders of certain licenses,
including cellular and microwave licenses, granted by the Federal Communications Commission (the "FCC") for the Non-Wireline Cellular Rural Service Areas set forth on Schedule A
(the "RSAs");
WHEREAS, pursuant to management agreements with the Triton License Entities, the Triton Operating Entities are the owners and operators
of the cellular telephone communication systems (the "Systems") in the RSAs set forth on Schedule A opposite the Triton Operating Entities' names and, in connection therewith, are engaged in
the business of marketing, selling and providing cellular telephone service in the RSAs (the "Business");
WHEREAS, the Triton Entities desire to sell to Purchaser, and Purchaser desires to acquire from the Triton Entities, all of the
Purchased Assets (as hereinafter defined) in accordance with the terms and conditions hereinafter set forth; and
WHEREAS, the parties acknowledge that the terms and conditions set forth in this Agreement and the performance by the parties of their
respective obligations hereunder are subject to and are intended to be in compliance with all FCC and other state and local governmental rules and regulations governing the transactions contemplated
by this Agreement (the "Transactions").
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, the parties hereto,
intending to be legally bound hereby, agree as follows:
1. Certain Definitions; Rules of Construction.
1.1 Certain Definitions. As used in this Agreement, the following terms have the following meanings unless the context
otherwise requires:
"Accounts
Receivable" has the meaning set forth in Section 2.1(b).
"Acquisition
Agreements" means the agreements listed on Schedule 1.1 (and all amendments and documents ancillary thereto) pursuant to which the Triton Entities acquired rights
to the Systems, the FCC Licenses and certain of the Purchased Assets.
"Actions"
has the meaning set forth in Section 4.6.
"Additional
Consents" has the meaning set forth in Section 6.3(a).
"Affiliate",
with respect to any Person, means any other Person controlling, controlled by or under common control with such Person and, for purposes of this definition, the term
"control" (including the terms "controlling" and "controlled") means the power to direct or cause the direction of the management and policies of a Person, directly or indirectly, whether through the
ownership of securities or other ownership interests, by contract or otherwise.
"Agent"
has the meaning set forth in Section 4.9(a).
"Agreement"
has the meaning set forth in the preamble.
"Alabama
5 Holdings Company" means Triton Cellular Alabama 5 Holdings Company L.L.C., a Delaware limited liability company and wholly-owned subsidiary of Triton Cellular
that owns all of the issued and outstanding membership interests of Alabama 5 License Company.
"Alabama
5 License Company" has the meaning set forth in the preamble.
"Algreg
Proceedings" has the meaning set forth in Section 4.5(b).
"Anticipated
Closing Date" has the meaning set forth in Section 2.5.
"Assumed
Liabilities" has the meaning set forth in Section 2.3.
"Balance
Sheet Date" has the meaning set forth in Section 4.3.
"BAM
Proceeding" has the meaning set forth in Section 4.6.
"BAM"
has the meaning set forth in Section 4.6.
"BMCT"
means BMCT Equipment Company L.L.C., a Delaware limited liability company and wholly-owned subsidiary of Triton-Bend.
"Books
and Records" has the meaning set forth in Section 2.1(j).
"Breaching
Party" has the meaning set forth in Section 11.1.
"Business"
has the meaning set forth in the recitals.
"Business
Day" means any day other than a Saturday, Sunday, legal holiday in the Commonwealth of Pennsylvania or other day of the year on which banks in the Commonwealth of
Pennsylvania are authorized or required by Law to close.
"Closing"
has the meaning set forth in Section 2.5.
"Closing
Cash Payment" has the meaning set forth in Section 3.3(c).
"Closing
Date" has the meaning set forth in Section 2.5.
"Closing
Date Balance Sheet" has the meaning set forth in Section 3.4(c).
"Closing
Statement" has the meaning set forth in Section 3.4(c).
"Code"
shall mean the Internal Revenue Code of 1986, as amended, and the rules, regulations, orders, policies and procedures promulgated thereunder.
"Collection
Agreements" has the meaning set forth in Section 2.2(j).
"Communications
Act" has the meaning set forth in Section 4.4.
"Confidential
Information" has the meaning set forth in Section 9.1(a).
"Consents"
means all consents and approvals of (a) Governmental Authorities necessary to authorize, approve or permit the parties hereto to consummate the Transactions or for
Purchaser to operate the Business after the Closing Date and (b) other Persons required pursuant to the terms of any Contract or License that constitutes a Purchased Asset.
"Contract
Assignment" has the meaning set forth in Section 8.1(d).
"Contracts"
has the meaning set forth in Section 2.1(e).
"Cranford"
means Cranford Cellular Communications, L.L.C., a New Jersey limited liability company.
"Current
Assets" means, without duplication, the following current assets of the Triton Entities and BMCT, calculated in accordance with GAAP and past practices, to the extent
transferred to Purchaser and presented on the Closing Date Balance Sheet: (a) Accounts Receivable (net of reserves for subscriber receivables calculated in accordance with the past practices of
the Triton Entities) other than Doubtful Accounts Receivable; (b) Inventory; (c) Prepaid Expenses and (d) any other Purchased Asset to the extent it would be classified as a
current asset in accordance with GAAP, with all of the foregoing assets being determined as of 11:59 p.m. on the Closing Date.
"Current
Liabilities" means, without duplication, the following current liabilities of the Triton Entities and BMCT, calculated in accordance with GAAP and past practices, as
presented on the Closing Date Balance Sheet: (a) accounts payable and accrued expenses, (b) taxes payable, (c) unearned revenue, (d) any other liability of the Triton
Entities assumed by Purchaser and which would be required to be reflected on a balance sheet in accordance with GAAP, with all of the foregoing liabilities being determined as of 11:59 p.m. on
the Closing Date, and (e) subject to the terms of Section 9.10, all liabilities of the Triton Entities assumed pursuant to Section 6.4.
"Descriptive
Memorandum" has the meaning set forth in Section 9.2.
"Direction
Letter" has the meaning set forth in Section 3.3(b).
"Doubtful
Accounts Receivable" has the meaning set forth in Section 2.2(i).
"Equipment"
has the meaning set forth in Section 2.1(d).
"Escrow
Agent" has the meaning set forth in Section 3.1.
"Escrow
Agreement" has the meaning set forth in Section 3.1.
"Escrow
Amount" has the meaning set forth in Section 3.1.
"Excluded
Assets" has the meaning set forth in Section 2.2.
"Excluded
Liabilities" has the meaning set forth in Section 2.4.
"Executive
Officers" means Xxxxxxx X. Xxxxxxxx, Xxxxxx Xxxxxxx, Xxxxx Xxxxxxxxx, Xxxxx Xxxx, Xxxxx Xxxxx, Xxxx Xxxx, Xxxxxx Xxxxxxxxx and Xxxxxxx Xxxxxxx;provided that for purposes of Section 9.8(b) such term
shall not include Xxxxxxx X. Xxxxxxxx, Xxxxxx Xxxxxxx or Xxxxx Xxxxx.
"FCC"
has the meaning set forth in the recitals.
"FCC
License" has the meaning set forth in Section 2.1(a).
"Final
Order" means an action by the FCC or other applicable Governmental Authority that is not reversed, stayed, enjoined, set aside, annulled or suspended, and with respect to which
no request for stay, motion or petition for reconsideration or rehearing, application or request for review, or notice of appeal or other judicial petition for review filed within the deadline, if
any, provided by applicable Law is pending, and as to which the deadline, if any, for filing any such request, motion, petition, application, appeal or notice, and for the entry of orders staying,
reconsidering or reviewing on the FCC's or any other applicable Governmental Authority's own motion have expired.
"Financial
Statements" has the meaning set forth in Section 4.3.
"GAAP"
has the meaning set forth in Section 4.3.
"Governmental
Authority" means any government or political subdivision thereof, whether federal, state, local or foreign, or any agency, commission or regulatory or administrative
authority or instrumentality.
"Hazardous
Substance" has the meaning set forth in Section 4.12.
"HSR
Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules, regulations, orders, policies and procedures promulgated
thereunder.
"Improvements"
means the buildings, towers, facilities, structures and improvements erected on any Real Property.
"Independent
Accountant" means Deloitte & Touche LLP, so long as it is independent with respect to the parties hereto.
"Instrument
of Assumption" has the meaning set forth in Section 3.3(d).
"Instrument
of Conveyance" has the meaning set forth in Section 8.1(b).
"Intellectual
Property Rights" has the meaning set forth in Section 2.1(h).
"Inventory"
has the meaning set forth in Section 2.1(c).
"Investment
Bankers" means, collectively, Xxxxxxx & Associates L.P. and X.X. Xxxxxx & Co., Incorporated.
"Law"
means applicable common law and any statute, ordinance, code, rule or regulation enacted or promulgated by any Governmental Authority.
"Leased
Real Property" has the meaning set forth in Section 2.1(g).
"License"
means a license, permit, certificate of authority, interim operating authority, waiver, approval, certificate of public convenience and necessity, registration or other
authorization, Consent or clearance issued or granted by a Governmental Authority, including Licenses to construct or operate a facility, or to transact an activity or business, to construct a tower
or to use an asset or process.
"Lien"
means any lien, pledge, mortgage, security interest, claim, lease, charge, option, right of first refusal, easement, servitude, transfer restriction under any stockholder or
similar agreement, or encumbrance.
"Losses"
means all losses, taxes, liabilities, damages, lawsuits, deficiencies, claims, demands, costs or expenses, including interest, penalties and reasonable attorneys' fees and
disbursements.
"Material
Adverse Change" means a change or set of circumstances or conditions that has had or is reasonably likely to result in a Material Adverse Effect.
"Material
Adverse Effect" means an effect or effects which in the aggregate are materially adverse to the Purchased Assets taken as a whole or the Business;provided, however, that neither of the following shall constitute a Material Adverse Effect:
(i) the effects of any events, circumstances or conditions resulting from changes, developments or circumstances in worldwide, national or local conditions (political, economic, regulatory or
otherwise) that adversely affect the markets where the Sites are located or adversely affect industries related to the telecommunications business generally (including proposed legislation or
regulation by any Governmental Authority or the introduction of any technological changes in the telecommunications industry), or adversely affect a broad group of industries generally; and
(ii) any effects of competition (including competition resulting from other wireless telecommunications services or the introduction of any new technological changes in the telecommunications
industry), provided that the exception contained in this clause (ii) shall not apply to effects resulting during the period from the date hereof
until the Closing Date as a consequence of competition.
"Material
Consents" has the meaning set forth in Section 6.3(a).
"Mississippi-34"
means Mississippi-34 Cellular Corporation, a Mississippi corporation.
"Net
Working Capital" means (a) Current Assets minus (b) Current Liabilities, as each of such amounts are reflected on the Closing Date Balance Sheet.
"Non-Breaching
Party" has the meaning set forth in Section 11.1.
"Notice"
has the meaning set forth in Section 3.4(c).
"Outside
Date" has the meaning set forth in Section 11.2(b).
"Owned
Real Property" has the meaning set forth in Section 2.1(f).
"Pay-Off
Letters" has the meaning set forth in Section 6.10.
"Permitted
Liens" means (i) any Lien for taxes and assessments, not yet past due or otherwise being contested in good faith; (ii) any leases and any Lien arising out of
deposits made to secure leases or other obligations of a like nature arising in the ordinary course of business, (iii) any Lien that does not materially interfere with the use by the Triton
Entities of the property subject thereto or affected thereby (including any easements, rights of way, restrictions, installations or public utilities, minor (technical) title imperfections and
restrictions, reservations in land patents, zoning ordinances or other similar liens or other encumbrances), and (iv) any Lien set forth on Schedule 1.
"Person"
means any individual, corporation, limited liability company, partnership, limited liability partnership, firm, joint venture, association, joint-stock company, trust,
unincorporated organization, Governmental Authority or other entity.
"Personal
Property Leases" has the meaning set forth in Section 2.1(e).
"Preliminary
Purchase Price" has the meaning set forth in Section 3.2.
"Prepaid
Expenses" has the meaning set forth in Section 2.1(i).
"Purchase
Price" has the meaning set forth in Section 3.2.
"Purchase
Price Adjustment" has the meaning set forth in Section 3.4(a).
"Purchase
Price Adjustment Estimate" has the meaning set forth in Section 3.4(b).
"Purchased
Assets" has the meaning set forth in Section 2.1.
"Purchaser"
has the meaning set forth in the preamble.
"Real
Property Lease Assignment" has the meaning set forth in Section 8.1(c).
"Real
Property Leases" has the meaning set forth in Section 2.1(e).
"Resolution
Period" has the meaning set forth in Section 3.4(c).
"Restricted
Interest" has the meaning set forth in Section 6.3(b).
"RSAs"
has the meaning set forth in the recitals.
"SEC"
has the meaning set forth in Section 6.8(c).
"Securities
Filings" has the meaning set forth in Section 6.8(c).
"Seller
Information" has the meaning set forth in Section 6.8(c).
"Specified
Indebtedness" has the meaning set forth in Section 3.3(a).
"Stay
Bonus Letter Agreements" has the meaning set forth in Section 2.4(j).
"Systems"
has the meaning set forth in the recitals.
"Taxes"
has the meaning set forth in Section 4.11.
"TCI"
has the meaning set forth in Section 9.5.
"TDS"
has the meaning set forth on Schedule 5.5.
"To
the Triton Entities' knowledge" or any similar phrase means the actual knowledge of one of the Executive Officers.
"Transactions"
has the meaning set forth in the recitals.
"Triton-Bend"
means Triton Cellular Partners of Bend L.L.C., a Delaware limited liability company and wholly-owned subsidiary of Triton Cellular.
"Triton
Cellular" has the meaning set forth in the preamble.
"Triton
Communications" has the meaning set forth in the preamble.
"Triton
Entities" has the meaning set forth in the preamble.
"Triton
License Entities" means, collectively, Triton Communications, Mississippi-34 and Alabama 5 License Company.
"Triton
Operating Entities" has the meaning set forth in the preamble.
"Triton
Parties" has the meaning set forth in the preamble.
"Triton
Representatives" means Xxxxx Xxxx and Xxxx Xxxx.
"Unaudited
Financial Statements" has the meaning set forth in Section 4.3.
"WARN
Act" means the Worker's Adjustment and Retraining Notification Act of 1988, as amended, and the rules, regulations, orders, policies and procedures promulgated
thereunder.
"Washington
Transfer Costs" has the meaning set forth in Section 6.11.
1.2 Rules of Construction. The definitions of terms herein shall apply equally to the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation". The word "will" shall be construed to have the same meaning and effect as the word "shall". Unless the context requires otherwise (a) any definition
of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or
otherwise modified, (b) any reference herein to any Person shall be construed to include such Person's successors and assigns, (c) the words "herein", "hereof" and "hereunder", and words
of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, and (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement.
2. Purchase of Assets; Assumption of Liabilities; Closing.
2.1 Purchased Assets. Except for the Excluded Assets and subject to the provisions of Section 6.3, at the
Closing, on the terms and subject to the conditions contained in this Agreement, the Triton Entities shall sell to Purchaser, free and clear of all Liens other than Permitted Liens, all of the assets
of the Business (collectively, the "Purchased Assets") including:
(a)all
Licenses (including all Licenses issued by the FCC ("FCC Licenses"));
(b)all
accounts receivable (including subscriber and roaming accounts receivable) ("Accounts Receivable");
(c)all
inventory (including cellular mobile telephones and related accessories) ("Inventory");
(d)all
furniture, fixtures, cellular systems and other equipment and machinery, cellular switches, cell site equipment, electrical power units, antennas, transmission lines, microwave
equipment, tools, vehicles, supplies, computer hardware and software (collectively, "Equipment");
(e)all
contracts, leases and agreements (including, subject to the provisions of the last sentence of Section 12.3, any rights of the Triton Entities under any of the
Acquisition Agreements, but only to the extent such rights arise after the Closing Date and such Acquisition Agreements are assigned to Purchaser in accordance with their terms) (collectively,
"Contracts"), including those of the following types: real property ("Real Property Leases"), personal property ("Personal Property Leases"), switch-sharing, interconnection, agency and distribution,
cell site maintenance, network services, intercarrier roaming, roaming clearinghouse and equipment purchase;
(f)all
lots and pieces of ground together with all easements, rights and privileges appurtenant thereto ("Owned Real Property");
(g)all
of the Triton Entities' interest in all Improvements located on Owned Real Property and on the real property subject to a Real Property Lease ("Leased Real Property");
(h)all
intellectual property rights of the Triton Entities, patents and applications therefor, trade secrets, business and marketing plans, copyrights and applications therefor,
trademarks, service marks, trade names and all logos, names and slogans (collectively, "Intellectual Property Rights");
(i)all
prepaid expenses, including amounts paid in advance on account of rent, insurance, property taxes, utility charges, fees and deposits ("Prepaid Expenses");
(j)originals
or (at the option of the Triton Entities) copies of all books and records, manuals, files and operating data relating to the Business (collectively, the "Books and
Records"); and
(k)ownership
of all (100%) of the membership interests in BMCT.
2.2 Excluded Assets. Notwithstanding anything to the contrary contained herein or otherwise, the Purchased Assets do not
include the following assets of the Triton Entities or any of their Affiliates (collectively, the "Excluded Assets"):
(a) all
cash on hand and in financial institutions and cash equivalents (including marketable securities);
(b) all
amounts due and owing from any Affiliate of the Triton Entities;
(c) all
federal, state and local income and franchise tax credits and tax refund claims;
(d) the
minute books, equity record books and tax returns of the Triton Entities;
(e) any
insurance policies maintained by the Triton Entities;
(f) all
claims, causes of action and rights of recovery relating to Excluded Assets arising out of, or relating to, events or occurrences on or before the Closing
Date, whether asserted or commenced before, on or after the Closing Date;
(g) the
Triton Entities' rights under this Agreement;
(h) all
rights to the names "Triton," "Triton Cellular," "Triton Communications" and similar names;
(i) all
Accounts Receivable that the Triton Entities have deemed to be uncollectible, including those that in the Books and Records have either been written off as
uncollectible or for which the
Triton Entities have established a 100% reserve against collection, (the "Doubtful Accounts Receivable");
(j) any
Contracts with respect to the collection of Doubtful Accounts Receivable (the "Collection Agreements"); and
(k) any
assets of Triton PCS Holdings, Inc. or any of its direct or indirect subsidiaries, provided that such
assets are not used in connection with the Business; and
(l) those
assets set forth on Schedule 2.2(l), which assets consist primarily of assets that are used by Affiliates of the Triton Entities and that do not
relate exclusively to the operation of the Systems.
2.3 Assumption of Liabilities by Purchaser. On the Closing Date, Purchaser shall assume and agree to discharge and
perform, as and when due, the following liabilities and obligations of the Triton Entities (collectively the "Assumed Liabilities"):
(a) those
Liabilities accruing, arising out of, or relating to events or occurrences after the Closing Date under any Contract that is a Purchased Asset; and
(b) amounts
reflected as Current Liabilities on the Closing Date Balance Sheet, to the extent that such Current Liabilities are included in the calculation of Net
Working Capital.
2.4 Excluded Liabilities. Purchaser shall not assume any of the liabilities or obligations of the Triton Entities other
than the Assumed Liabilities, and in particular shall not assume the following (collectively, the "Excluded Liabilities"), except to the extent any such liabilities or obligations are reflected on the
Closing Date Balance Sheet and included as a Current Liability in the calculation of Net Working Capital:
(a) any
liabilities or obligations for legal, accounting and audit fees (except as set forth in Section 6.8(b)) and any other expenses incurred by the Triton
Entities in connection with the preparation of, negotiation of, and performance under this Agreement (and the Transactions and other agreements contemplated hereby);
(b) any
liabilities or obligations for the Triton Entities' federal, state or local income taxes;
(c) any
liabilities or obligations of the Triton Entities as a borrower under any loan agreements, subordinated debt agreements or other credit facilities;
(d) any
liabilities or obligations for employees of the Business who are not employed by Purchaser at Closing in accordance with Section 6.4;
(e) any
liabilities or obligations of the Triton Entities under any Collection Agreement;
(f) any
liabilities or obligations of the Triton Entities to any Affiliate of the Triton Entities;
(g) any
liabilities or obligations relating to the Excluded Assets;
(h) any
monetary liabilities or obligations of the Triton Entities outstanding as of the Closing Date pursuant to the Acquisition Agreements;
(i) any
liability of BMCT which is not reflected on the Closing Date Balance Sheet (it being agreed that when transferred to Purchaser, BMCT shall have no liabilities
other than current liabilities incurred in the ordinary course of business which shall be reflected on the Closing Date Balance Sheet); and
(j) any
payments coming due either prior to or after the Closing Date pursuant to those letter agreements dated as of October 1, 1999 (the "Stay Bonus Letter
Agreements") with those employees set forth on Schedule 2.4(j).
2.5 The Closing. Unless this Agreement shall have been earlier terminated in accordance with the terms hereof, the
Transactions shall be consummated (the "Closing") at the offices of Kleinbard, Xxxx & Xxxxxxx LLP, 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, or at such other place
or on such other date as the Triton Entities and Purchaser may agree in writing, on the earlier to occur of (such earlier date, the "Anticipated Closing Date"): (i) the first day of the month
first occurring at least five (5) Business Days after all of the conditions to Closing set forth in Article 7 have been satisfied or
waived, but not prior to April 1, 2000 and (ii) provided that all of the conditions to Closing set forth inArticle 7 have been satisfied or
waived, the Outside Date. The date on which the Closing occurs is referred to in this Agreement as the "Closing
Date", and the Closing shall be deemed to have occurred as of 11:59 p.m. on the Closing Date.
3. Escrow; Purchase Price; Adjustments to Purchase Price.
3.1 Escrow. On November 8, 1999, Purchaser will deliver to First Union National Bank, Philadelphia, Pennsylvania,
as escrow agent (the "Escrow Agent"), cash in the amount of Thirty-Five Million Dollars ($35,000,000), which amount (including, unless otherwise stated herein, any interest earned thereon,
the "Escrow Amount") shall be held, administered and released by the Escrow Agent pursuant to the terms of a certain escrow agreement dated as of November 8, 1999 (the "Escrow Agreement"). Time
is of the essence with respect to the obligations of Purchaser in this Section 3.1.
3.2 Purchase Price. The purchase price for the Purchased Assets shall be an aggregate amount (the "Purchase Price")
equal to One Billion Two Hundred Forty Million Dollars ($1,240,000,000) (the "Preliminary Purchase Price"), plus or minus, as applicable, the Purchase Price Adjustment.
3.3 Manner of Payment. At Closing:
(a) Purchaser
shall pay directly to the holders thereof the indebtedness listed on Schedule 3.3.(a) which is outstanding as of the Closing Date ("Specified
Indebtedness"), as specified in one or more Pay-off Letters;
(b) Purchaser
and the Triton Entities shall direct the Escrow Agent in writing (the "Direction Letter") to deliver to the Triton Entities the Escrow Amount, except for
the sum of Five Million Dollars ($5,000,000), which shall continue to be held by the Escrow Agent in accordance with the terms of the Escrow Agreement until the Purchase Price Adjustment pursuant to
Section 3.4 is finally resolved;
(c) Purchaser
shall pay to the Triton Entities, by wire transfer of immediately available funds to such banks and accounts thereat as shall be specified in writing by
the Triton Entities prior to Closing, an aggregate amount (the "Closing Cash Payment") equal to (i) the Preliminary Purchase Price, plus or minus (ii) the Purchase Price Adjustment
Estimate, minus (iii) the Escrow Amount minus (iv) the Specified Indebtedness; and
(d) Purchaser
shall assume the Assumed Liabilities by written instrument of assumption in the form of Exhibit 3.3(d) (the "Instrument of Assumption").
3.4 Purchase Price Adjustment.
(a) As
used herein, the term "Purchase Price Adjustment" shall mean the amount of the Net Working Capital of the Triton Entities on the Closing Date.
(b) The
Triton Entities shall prepare and submit to Purchaser, not later than three (3) Business Days prior to the Anticipated Closing Date, a written good faith
estimate of the amount of the Purchase Price Adjustment accompanied by appropriate supporting documentation (the "Purchase Price Adjustment Estimate").
(c) As
promptly as practicable (but in no event more than ninety (90) days) after the Closing Date, the Triton Entities shall prepare and deliver to Purchaser
for its review and comment (i) a balance sheet dated as of the close of business on the Closing Date (the "Closing Date Balance Sheet") and (ii) an accompanying closing statement (the
"Closing Statement") reasonably detailing as of the close of business on the Closing Date the Triton Entities' determination of each element of the Purchase Price Adjustment, prepared in accordance
with GAAP and the provisions of this Agreement. If Purchaser objects to any amounts reflected on the Closing Date Balance Sheet or the Closing Statement, Purchaser must, within fifteen
(15) days after Purchaser's receipt of the Closing Date Balance Sheet and Closing Statement, give written notice (the "Notice") to the Triton Entities specifying in reasonable detail
Purchaser's objections, or the Triton Entities' determination of the Purchase Price Adjustment shall be final, binding and conclusive on the parties. With respect to any disputed amounts, the parties
shall meet in person and negotiate in good faith during the fifteen (15) day period (the "Resolution Period") after the date of the Triton Entities' receipt of the Notice to resolve any such
disputes. If the parties are unable to resolve all such disputes within the Resolution Period, then within five (5) Business Days after the expiration of the Resolution Period, all disputes
shall be submitted to the Independent Accountant who shall be engaged to provide a final and conclusive resolution of all unresolved disputes within forty-five (45) days after such
engagement. The determination of the Purchase Price Adjustment by the Independent Accountant shall be final, binding and conclusive on the parties hereto, and the fees and expenses of the Independent
Accountant shall be borne by the party who, in the Independent Accountant's determination, submitted a disputed amount that differs more significantly from the amount finally determined by the
Independent Accountant. From and after the Closing Date, Purchaser will provide the Triton Entities with access to the books, records and personnel of Purchaser that the Triton Entities reasonably
determine is necessary to prepare the Closing Date Balance Sheet and the Closing Statement.
(d) If
the Purchase Price Adjustment (as finally determined in accordance with the provisions set forth above) exceeds the Purchase Price Adjustment Estimate, then,
within five (5) Business Days after such final determination, Purchaser shall pay to the Triton Entities such excess in immediately available funds. If the Purchase Price Adjustment Estimate
exceeds the Purchase Price Adjustment (as finally determined in accordance with the provisions set forth above), then, within five (5) Business Days after such final determination, the Triton
Entities shall pay to Purchaser such excess in immediately available funds or such excess shall be remitted to the Purchaser from the Escrow Agent in accordance with the provisions of the Escrow
Agreement.
3.5 Closing Costs; Transfer Taxes and Fees. Purchaser shall be responsible for and pay when due (i) any
documentary and transfer taxes and any sales, use or other taxes imposed by reason of the transfers of Purchased Assets provided hereunder and any deficiency, interest or penalty asserted with respect
thereto, (ii) any fees and costs of recording or filing all applicable conveyancing instruments described in Section 8.1(a) or otherwise and (iii) any Washington Transfer Costs.
3.6 Allocation of Purchase Price. On or prior to the Anticipated Closing Date, Purchaser and the Triton Entities shall
mutually agree in writing upon the allocation of the Purchase Price among the Purchased Assets. Such allocation shall be adjusted as necessary in connection with the final determination of the
Purchase Price Adjustment. The parties agree that such allocation shall be based upon the relative fair market values of the Purchased Assets as of the Closing Date conforming with the requirements of
Section 1060 of the Code. Purchaser and the Triton Entities agree to file all tax returns and reports, including Internal Revenue Service Form 8594, in accordance with such allocation
and not to take any position inconsistent therewith unless required to do so pursuant to a "determination" as such term is
defined in Section 1313 of the Code.
4. Representations and Warranties of the Triton Entities. The Triton Entities represent and warrant to Purchaser as
follows:
4.1 Organizational Existence. Each of the Triton Entities (other than Mississippi-34) is a limited liability
company duly organized, validly existing and in good standing under the Laws of the State of Delaware. Mississippi-34 is a corporation duly organized, validly existing and in good standing
under the Laws of the State of Mississippi. Each Triton Entity has all requisite power and authority to own its properties and assets and to carry on its business as currently conducted and is in good
standing in each jurisdiction in which foreign qualification is required, except where the failure to so qualify would not reasonably be expected to have a Material Adverse Effect.
4.2 Authorization; No Conflict.
(a) Each
of the Triton Entities has the full legal right and all power and authority required to enter into, execute and deliver this Agreement and the documents and
other agreements required to be executed and delivered hereunder and to perform fully its obligations hereunder and thereunder. The execution, delivery and performance of this Agreement by the Triton
Entities have been duly authorized by all necessary action on the part of the Triton Entities. This Agreement has been duly executed and delivered and constitutes, and each of the other agreements and
documents to be delivered by the Triton Entities hereunder when executed and delivered by the Triton Entities will constitute, the valid and binding obligation of the Triton Entities, enforceable
against the Triton Entities in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect affecting creditors'
rights generally.
(b) The
execution, delivery and performance of this Agreement and the documents and other agreements to be delivered hereunder by the Triton Entities and the
consummation of the transactions contemplated hereby and thereby by the Triton Entities will not (i) violate any provision of the Triton Entities' formative and organizational documents;
(ii) subject to the receipt of any Consent, breach any of the terms of or constitute (or with notice or lapse of time or both constitute) a default under, any material Contract to which a
Triton Entity is a party or by or to which it or any of its assets or properties may be bound or subject; (iii) violate any order, judgment, injunction, award or decree of any Governmental
Authority by which the Triton Entities, or the assets, properties or business of the Triton Entities are bound; or (iv) violate any Law.
4.3 Financial Statements. The Triton Entities have delivered to Purchaser complete and accurate copies of the audited
annual financial statements of Triton Cellular as of December 31, 1998 and for the year then ended (collectively, the "Financial Statements"). The Financial Statements (i) fairly present
the financial condition of Triton Cellular and its consolidated subsidiaries as of such date and the results of its operations and changes in its cash flows for the periods covered thereby, and
(ii) were prepared in accordance with generally accepted accounting principles consistently applied ("GAAP"). The Triton Entities have also delivered to Purchaser copies of Triton Cellular's
unaudited financial statements as of March 31, July 31, and September 30, 1999 (July 31, 1999 being referred to hereafter as the "Balance Sheet Date") and for the periods
covered thereby, including the unaudited financial statement of BMCT as of September 30, 1999 (collectively, the "Unaudited Financial Statements"). The Unaudited Financial Statements
(i) fairly present the financial condition of Triton Cellular and its consolidated subsidiaries as of such date and the results of its operations, as applicable, for the periods covered
thereby, and (ii) were prepared in accordance with GAAP (subject to year-end adjustments which, to the knowledge of the Triton Entities, are not expected to be material, and except
for the omission of
certain footnotes and other presentation items required by GAAP with respect to audited financial statements).
4.4 Compliance with Laws. Each of the Triton Entities is in, and has operated in, compliance with all applicable federal
(including the Communications Act of 1934, as amended, and the rules, regulations, orders, policies and procedures promulgated thereunder (the "Communications Act")), state and local Laws and any
applicable requirements of any Governmental Authority affecting its Business.
4.5 Licenses.
(a) The
Triton Entities have (i) all of the FCC Licenses and all state Licenses necessary to operate the Systems as now operated and (ii) all other
Licenses necessary to operate the Systems as now operated. Such Licenses are in full force and effect, are unimpaired in any material respect by any acts or omissions of the Triton Entities or any of
their employees or agents, are valid for the balance of the current License term applicable generally to each such License, are transferable by the Triton Entities upon obtaining the applicable
Consents and are sufficient to permit the continued lawful operation of the Business by Purchaser as such Business is presently conducted by the Triton Entities.
(b) The
Triton License Entities are, and immediately prior to the Closing will be, the exclusive holders of the FCC Licenses. The consents of the FCC to the assignments
or transfers of control of the FCC Licenses to the Triton Entities have been granted by Final Order. A list of the FCC licenses and material state Licenses (if any) is set forth on
Schedule 4.5(b). There are no existing or, to the Triton Entities' knowledge, threatened proceedings before the FCC or any state regulatory body that could reasonably be expected to result in
the revocation, cancellation, suspension, or material adverse modification of the FCC Licenses and material state Licenses (if any) except for (i) proceedings that affect the cellular industry
generally and (ii) certain proceedings regarding the FCC Licenses held by Alabama 5 License Company (i.e. Algreg Cellular Engineering, et al., 12 FCC Record (1997)) and proceedings on review or
reconsideration therefrom (collectively, the "Algreg Proceedings")
4.6 Litigation. Except for legal or administrative proceedings affecting the cellular telephone industry generally and
except for the Algreg Proceedings, there is no action, suit, claim, arbitration, investigation or other legal or administrative proceeding (collectively, "Actions") pending or, to the Triton Entities'
knowledge, threatened against the Triton Entities with respect to the Business or to the Purchased Assets. The lawsuit commenced by Xxxx Atlantic Mobile ("BAM") against certain of the Triton Parties
and their Affiliates and certain of their respective officers (Essex County (N.J.) Docket No. ESX-C-283-98) (the "BAM Proceeding") has been dismissed with prejudice
by final nonappealable order without any further liability to any of the Triton Parties or any of the Executive Officers and without the entry of any order or any settlement which could bind or affect
the assets or operations of Purchaser following the Closing except that two of the Executive Officers that were formerly employed by BAM are required to continue to abide by the provisions of BAM's
"Code of Business Conduct". Prior to the Closing, the Triton Entities shall furnish to Purchaser a letter from Xxxxxxxxx, Xxxx & Xxxxxxx LLP to that effect.
4.7 Owned Real Property. Schedule 4.7 sets forth a list of the Owned Real Property. At Closing, the Triton
Entities will transfer to Purchaser good and insurable title to the Owned Real Property free and clear of all Liens other than Permitted Liens.
4.8 Contracts.
(a) Schedule 4.8(a)
sets forth a list of the Real Property Leases.
(b) Schedule 4.8(b)
sets forth a list of all material Personal Property Leases (none of which involve capitalized lease obligations, as defined by GAAP, except
as specifically noted).
(c) Schedule 4.8(c)
sets forth a list of the Contracts (other than the Acquisition Agreements, the Real Property Leases and the Personal Property Leases)
relating to the Business to which any of the Triton Entities is a party that involve the receipt or payment after the date hereof by the respective Triton Entity that is a party thereto of more than
$100,000 annually.
(4) There
have been delivered to Purchaser true and complete copies of all of the Contracts set forth on Schedule 4.8(a), Schedule 4.8(b) and
Schedule 4.8(c). All of the Contracts set forth on such schedules are valid, in full force and effect and binding upon the Triton Entities party thereto and, to the Triton Entities' knowledge,
the other parties thereto, enforceable in accordance with their respective terms; and the Triton Entities are not in default under any of them, nor, to the Triton Entities' knowledge, does any
condition exist that, with notice or lapse of time or both, would constitute such a default. To the Triton Entities' knowledge, no other party to any Contract set forth on such schedules is in default
thereunder, nor, to the Triton Entities' knowledge, does any condition exist that, with notice or lapse of time or both, would constitute such a default.
4.9 Title; Condition.
(a) Each
of the Triton Entities has good and marketable title to all of its personal property relating to the Business. Notwithstanding anything to the contrary
contained herein or otherwise on the date hereof, (i) all of the assets of the Triton Entities (other than Alabama 5 License Company) are generally subject to a security interest that has been
granted by such Triton Entities to Toronto Dominion (Texas), Inc., as collateral agent ("Agent"), which security interest will be released promptly following Closing upon payment to Agent of
certain amounts owed thereto, and (ii) the membership interests of Alabama 5 License Company held by Alabama 5 Holdings Company are subject to a security interest that has been granted by
Alabama 5 Holdings Company to Xxxxxxxx, which security interest will be released promptly following Closing upon payment to Xxxxxxxx of certain amounts owed thereto at Closing. The Triton Entities
will at Closing convey to Purchaser good and marketable title to all Purchased Assets constituting personal property, in each case free and clear of any Lien other than Permitted Liens, subject to the
recording after Closing of the releases to be delivered by Agent and Xxxxxxxx upon payment thereto.
(b) Subject
to the provisions of Section 6.1(c), at Closing the Triton Entities shall transfer to Purchaser, and Purchaser shall acquire from the Triton
Entities, the Purchased Assets in their "AS-IS" condition and state of repair on the Closing Date. EXCEPT FOR THE SPECIFIC REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN, THE TRITON
ENTITIES MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, CONCERNING THE PURCHASED ASSETS, AND THE PURCHASED ASSETS ARE BEING SOLD AS-IS, WHERE-IS, WITH NO WARRANTIES AS
TO CONDITION OR SUFFICIENCY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, SUITABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
4.10 No Material Adverse Change. Since the Balance Sheet Date, there has been no Material Adverse
Change in the Purchased Assets or the Business.
4.11 Taxes. Except as set forth on Schedule 4.11, since the date of each of the Triton Entities'
ownership of its respective System(s), (i) such Triton Entity has timely filed or caused to be filed with the appropriate taxing authorities all required tax returns for federal, state, and
local taxes (collectively, "Taxes"),
(ii) all Taxes owed by such Triton Entity with respect to the Business, in respect of periods beginning before the Closing Date, have been timely paid or an adequate reserve has been
established therefor in the Financial Statements and (iii) there are no pending or, to the Triton Entities' knowledge, threatened audits, investigations or claims for or relating to any
additional liability in respect of Taxes.
4.12 Environmental Matters. Neither the Business nor the operation thereof by the Triton Entities, nor
the ownership or use of the Purchased Assets by the Triton Entities violates any applicable environmental Laws and no condition or event has occurred with respect to the Business or Purchased Assets
that, with the giving of notice, lapse of time, or both, would constitute a violation of such Laws. There is no Hazardous Substance located on, under, or about any of the Owned Real Estate or Leased
Real Estate which could require removal or remediation under applicable Law. "Hazardous Substance" means petroleum products and items defined in the environmental Laws as "hazardous substances,"
"hazardous wastes", "pollutants" or "contaminants" and any other toxic or reactive, corrosive, carcinogenic, flammable or hazardous substance or other pollutant.
4.13 Subsidiaries and Interests in Other Companies. None of the Triton Entities has any general partnership interest in
any Person nor has any other material proprietary interest in any other Person except for the ownership of 100% of the membership interests of BMCT.
5. Representations and Warranties of Purchaser. Purchaser represents and warrants to the Triton Entities as follows:
5.1 Organizational Existence. Purchaser is a corporation duly organized, validly existing and in good standing under the
Laws of the State of Minnesota, has all requisite power and authority to enter into this Agreement and perform its obligations hereunder and is in good standing as a foreign corporation in each
jurisdiction in which such qualification is required, except where the failure to so qualify would not reasonably be expected to have a material adverse effect on Purchaser or its ability to
consummate the Transactions.
5.2 Authorization; No Conflict.
(a) Purchaser
has the full legal right and all power and authority required to enter into, execute and deliver this Agreement and the documents and other agreements
required to be executed and delivered hereunder and to perform fully its obligations hereunder and thereunder. The execution, delivery and performance of this Agreement by Purchaser has been duly
authorized by all necessary action on the part of Purchaser. This Agreement has been duly executed and delivered and constitutes, and each of the other agreements and documents to be delivered by
Purchaser hereunder when executed and delivered by Purchaser will constitute, the valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with their respective terms,
subject to bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect affecting creditors' rights generally.
(b) The
execution, delivery and performance of this Agreement and the documents and other agreements to be delivered hereunder by Purchaser and the consummation of the
transactions contemplated hereby and thereby by Purchaser will not (i) violate any provision of Purchaser's formative and organizational documents, (ii) subject to the receipt of any
Consent, to Purchaser's knowledge, breach any of the terms of or constitute (or with notice or lapse of time or both constitute) a default under, any material contract to which Purchaser is a party or
by or to which it or any of its assets or properties may be bound or subject, excluding in any case such violations, conflicts, breaches or defaults that would not reasonably be expected to have a
material adverse effect on Purchaser or its ability to consummate the
Transactions, (iii) violate any order, judgment, injunction, award or decree of any Governmental Authority by which Purchaser, or the assets, properties or business of Purchaser are bound or
(iv) to Purchaser's knowledge, violate any Law except where such violation would not reasonably be expected to have a material adverse effect on Purchaser or its ability to consummate the
Transactions.
5.3 Compliance with Laws. Purchaser is in, and has operated in, compliance with all applicable Laws, except for any
noncompliance that would not reasonably be expected to have a material adverse effect on Purchaser or its ability to consummate the Transactions.
5.4 Litigation. Except for legal or administrative proceedings affecting the cellular telephone industry generally,
there is no Action pending or, to Purchaser's knowledge, threatened against Purchaser with respect to its business, excluding in any case such Actions that would not reasonably be expected to have a
material adverse effect on Purchaser or its ability to consummate the Transactions.
5.5 FCC Matters. On the Closing Date, Purchaser will be (and except as set forth on Schedule 5.5, on the date
hereof Purchaser is) fully qualified under the Communications Act to be a licensee of the FCC Licenses and to be approved as the assignee of the FCC Licenses. Purchaser holds no direct or indirect
interest in any commercial mobile radio service that would violate Section 20.6 of the FCC's rules and regulations if the Transactions were consummated on the terms and subject to the
conditions contained herein. Subject to the consummation of the transaction described on Schedule 5.5, Purchaser knows of no reason why the FCC will not grant its Consent to the assignment of
the FCC Licenses from the Triton License Entities to Purchaser. Neither Purchaser, nor any "real party in interest" (as defined in Section 22.13 of the FCC's rules) (i) has had the FCC
deny an application for an authorization, (ii) has had the FCC revoke an authorization granted to it, or (iii) has been the subject of an investigation by the FCC.
5.6 Financing. Subject to the funding of the financing described in the letters attached hereto as Schedule 5.6,
Purchaser shall have at the Closing the financial ability to perform Purchaser's obligations under this Agreement, including Purchaser's obligation to deliver the Closing Cash Payment at Closing.
6. Covenants of the Triton Entities and Purchaser. From the date hereof until Closing (or the earlier termination of
this Agreement in accordance with its terms), the Triton Entities and Purchaser covenant and agree with each other as follows:
6.1 Continuance of Business. Each of the Triton Entities will, unless otherwise consented to in writing by Purchaser
(which consent will not be unreasonably withheld, conditioned or delayed):
(a) use
commercially reasonable efforts to continue to operate the Business in the usual and ordinary course and in substantial conformity with all applicable Laws;
(b) except
for inventory sold in the ordinary course of business, not assign, sell, sublease, lease, license or otherwise transfer or dispose of any material Purchased
Asset, whether now owned or hereafter acquired;
(c) use
commercially reasonable efforts to maintain all of the Purchased Assets in their present condition, reasonable wear and tear and ordinary usage excepted;
(d) use
commercially reasonable efforts to maintain all Licenses;
(e) provide
to the Purchaser, promptly after the filing thereof, copies of all reports to and other filings (i) with the FCC or (ii) outside the ordinary
course of business, with any other Governmental Authority;
(f) notify
Purchaser in writing promptly after any Executive Officer's knowledge of the institution or threat of any Action against the Triton Entities before the FCC
or any other Governmental Authority and notify Purchaser in writing promptly upon receipt of any court order or material administrative order relating to the Purchased Assets or the Business,
including any filing in connection with the Algreg Proceeding;
(g) use
commercially reasonable efforts to proceed with planned capital expenditures as described in the Descriptive Memorandum; and
(h) reasonably
consider taking any actions reasonably requested by Purchaser in preparation for post-Closing operation of the Business, so long as such
actions do not adversely interfere with the ongoing operations of the Business and are not reasonably expected to expose the Triton
Entities to significant liability in event of a failure of the Closing to occur, provided that all such requests and resulting actions will be coordinated through the Triton Representatives or
individuals that they may designate.
6.2 Access to Information; Notice of Breach. At reasonable times and upon reasonable advance notice to the Triton
Representatives, Purchaser shall be entitled, through its employees and representatives, to have access to and to make such investigation of the Purchased Assets, personnel and operations of the
Business as Purchaser reasonably requests (including performing engineering inspections and environmental assessments at Purchaser's expense, subject to
any access restrictions imposed by lessors in the case of leased property); provided, however, that any such inspection shall be done in such a manner so as not to unreasonably disrupt the Triton
Entities' conduct of the Business and shall be subject to any reasonable restrictions imposed by the Triton Representatives. Purchaser agrees to provide the Triton Entities with prompt written notice
if Purchaser determines that, based upon information provided to Purchaser or through its own investigation, any of the Triton Entities is in breach of any representation, warranty or covenant of the
Triton Entities set forth in this Agreement. If this Agreement is terminated, Purchaser agrees to return or cause to be returned all such information provided to Purchaser or its representatives
within five (5) Business Days after the date of such termination.
6.3 Consents.
(a) The
Triton Entities shall diligently pursue and use all commercially reasonable efforts to obtain promptly (with Purchaser's active cooperation) all Consents from
any Governmental Authority or third party necessary for lawful consummation of the Closing and for the assignment of the Contracts to Purchaser. In furtherance of the foregoing, Purchaser and the
Triton Entities each agree to provide all information (including financial information) that is reasonably requested by any Person from whom any Consent is necessary for lawful consummation of the
Closing. The Triton Entities and Purchaser have agreed that, subject to the provisions of Section 6.3(c), the only Consents relating to Contracts that the Triton Entities will be required to
deliver at Closing are (i) the Consents set forth on Schedule 6.3(a) (the "Material Consents"); and (ii) not less than eighty percent (80%) of the Consents required for the
assignment to Purchaser of all remaining Real Property Leases which by their terms require the Consent of a third-party for assignment to Purchaser (the "Additional Consents").
(b) To
the extent that any interest in the Contracts or other Purchased Assets is not capable of being assigned, transferred or conveyed without the Consent, waiver or
authorization of a third Person (including a Governmental Authority), or if such assignment, transfer or conveyance or attempted
assignment, transfer or conveyance would constitute a breach of any of the Contracts or other Purchased Assets, or a violation of any Law or is not immediately practicable, this Agreement shall not
constitute an assignment, transfer or conveyance of such interest, or an attempted assignment, transfer or conveyance of such interest (any such interest being referred to herein as a "Restricted
Interest"). Anything in this Agreement to the contrary notwithstanding, the Triton Entities shall not be obligated to transfer to Purchaser any Restricted Interest without first having obtained the
required Consent necessary for such transfer.
(c) With
respect to any Material Consent or Additional Consent that the Triton Entities are unable to obtain and deliver to Purchaser, the Triton Entities shall use
commercially reasonable efforts to provide to Purchaser, at the Triton Entities' expense, a substitute contract which provides Purchaser with benefits which are operationally and financially
reasonably equivalent to the Restricted Interest. With respect to any such Material Consent or Additional Consent, if the Triton Entities obtain such a substitute contract set forth in the immediately
preceding sentence, the Triton Entities shall be deemed to have delivered such Material Consent or Additional Consent, as the case may be.
(d) Promptly
(but in any event within ten (10) Business Days) after the execution hereof, the parties shall submit for filing to the FCC all information and
documents required in connection with obtaining the Consent of the FCC to the Transactions.
(e) Promptly
(but in any event within thirty (30) days) after the date hereof, the parties shall file all information and documents required under HSR Act.
Purchaser shall pay any filing fee(s) required under the HSR Act.
6.4 Employees; Employee Compensation.
(a) At
Closing, Purchaser shall extend offers of employment to substantially all employees of the Business (except for the Executive Officers (other than Xxxxxx
Xxxxxxxxx and Xxxxxxx Xxxxxxx) and individuals presently employed at the Malvern, Pennsylvania office), which offers shall be at salary levels comparable to those existing on the date hereof and with
benefits comparable to those offered to other employees of Purchaser, including credit for years of service with the Triton Entities and any other predecessors as to which the Triton Entities have
given credit for prior service, for purposes of eligibility, participation, vesting, entitlement and all other relevant purposes. Purchaser shall give all such employees credit under its plans for
vacation, sick pay and similar items accrued as of Closing. At least thirty (30) days prior to the Anticipated Closing Date, Purchaser shall provide written notice to the Triton Entities
identifying any employees of the Business to whom Purchaser does not intend to extend offers of employment, which in no event shall be more than ten (10) employees of the Business. Nothing
contained in this Agreement shall confer upon any employee of the Business any right with respect to continued employment by the Triton Entities or the Purchaser. No provision of this Agreement shall
create any third party rights in any such employee, or any beneficiary or dependent thereof, with respect to the compensation, terms and conditions of employment and benefits that may be provided to
such employee by Purchaser or under any benefit plan that Purchaser may maintain.
(b) In
addition to other obligations and remedies provided for herein, Purchaser hereby assumes responsibility for severance, separation, retraining, relocation or
similar expenses (other than any amounts payable under the Stay Bonus Letter Agreements) that are payable to the employees of the Business that are employed by Purchaser to the extent listed on
Schedule 6.4(b) hereto (which shall be attached hereto at least ten (10) days prior to the Anticipated Closing Date, assuming Purchaser's compliance with its notification obligation set
forth in Section 6.4(a)) and reflected as a Current Liability on the Closing Date Balance Sheet, or otherwise result from Purchaser's failure to comply with the terms
hereof, including liability arising under the WARN Act. In no event shall the foregoing sentence be used to create an inference that any employee has any right to severance or such other benefits from
the Triton Entities.
6.5 Restrictions on Certain Actions. Purchaser will not, and Purchaser will use its best efforts to ensure that all
Persons whose actions or ownership interests would be attributable to Purchaser under the Communications Act or any comparable state Law will not, in any manner, directly or indirectly, solicit,
initiate, encourage or participate in applications, bids, purchases or negotiations with respect to the acquisition of any interest in an FCC License that, if consummated, would have the effect under
the Communications Act or any comparable state Law of preventing or delaying beyond the Anticipated Closing Date Purchaser from consummating the acquisition of the Purchased Assets as contemplated by
this Agreement.
6.6 Casualty or Condemnation. If any portion of the Purchased Assets is damaged, destroyed or lost by fire or other
casualty, or if condemnation or eminent domain proceedings are proposed, threatened or commenced against a material portion of the Purchased Assets, the Triton Entities will, at their option,
(i) repair, rebuild or replace the portion of the Purchased Assets damaged, destroyed or lost prior to Closing, or (ii) include an amount equal to a mutually agreed upon cost of
completing the replacement or repair of such property as a deduction in the calculation of the Purchase Price; provided, however, that if the parties are unable to agree on such cost, the Independent
Accountant shall be engaged to determine such cost during the period of the final determination of the Purchase Price Adjustment.
6.7 Supplemental Disclosure. By written notice to the Purchaser given at least ten (10) days prior to the
Anticipated Closing Date, the Triton Entities may supplement or amend any of the disclosure schedules attached hereto (or create one or more additional disclosure schedules, if appropriate) with
respect to any matter that arises or is discovered after the date of this Agreement that, if existing or known at the date of this Agreement, would have been required to be set forth or listed in any
such schedule; provided that, for purposes of determining the rights and obligations of the parties under this Agreement (other than the obligations of the Triton Entities under this
Section 6.7), any such disclosure will be deemed to have been disclosed to Purchaser as of the date of this Agreement and Purchaser shall be deemed to have consented to any such disclosure
unless: (i) the items disclosed have had or would reasonably be expected to have a Material Adverse Effect; (ii) the items disclosed arose other than in the ordinary course of business;
(iii) in case of items that arose from events, transactions and occurrences after the date hereof, such items constitute violations of the covenants contained in Section 6.1;
(iv) in the case of Contracts which require Consent for assignment to Purchaser, unless such Contract is also added to the schedule of Material Consents if Purchaser reasonably requests within
ten (10) days after receiving the notice and a copy of the Contract.
6.8 Financial Statements; Audits.
(a) The
Triton Entities shall provide Purchaser, within thirty (30) days after the end of each calendar month following the date hereof, with the internal
financial and operational reports set forth on Schedule 6.8.
(b) If
requested by Purchaser, the Triton Entities shall (i) provide Purchaser with complete audited financial statements of the Business as of
September 30, 1999 and/or as of December 31, 1999 and for the periods then ended, and (ii) obtain audits of the Triton Entities' predecessors for prior periods to the extent such
would be required under federal securities Laws for a registered public offering of Purchaser on Form S-1 or regulatory filings, prepared in accordance with GAAP and all applicable
guidelines of the Securities and Exchange Commission ("SEC"). Said audits shall be performed by Xxxxxx Xxxxxxxx LLP and/or KPMG LLP (provided as
to KPMG LLP, only if Purchaser and KPMG have reached an agreement with respect to the delivery of any consents that may be required in connection with any Securities Filings), at Purchaser's expense,
as expeditiously as possible. The Triton Parties shall cooperate with Purchaser in conducting and expediting said audits, including diligently attempting to obtain necessary records from predecessors,
if requested, and generally providing the audit and other information reasonably requested by Purchaser for one or more public or private offerings of securities and other filings by Purchaser prior
to the Closing. The Triton Parties shall use reasonable efforts to cause their auditors to cooperate with the Purchaser's auditors in connection with preparing financial statements and data (including
providing customary comfort letters) in connection with any such offerings of securities.
(c) Purchaser
intends to prepare and file with the SEC certain securities filings in accordance with its public disclosure obligations required by Law (the "Securities
Filings"). Purchaser agrees that no information (financial or otherwise) concerning the Triton Parties, their financial
condition or results of operations, the Purchased Assets or the Systems (collectively, "Seller Information") may be included in any Securities Filings unless the Triton Parties agree in writing that
any such information may be included therein or unless otherwise required by Law in the reasonable opinion of Purchaser's legal counsel. Moreover, Purchaser shall furnish to the Triton Parties and
their counsel for their review and approval (which approval shall not be unreasonably withheld or delayed for more than three (3) days), in advance of any filing thereof, any Securities Filings
containing any Seller Information, and Purchaser agrees to indemnify, defend and hold harmless the Triton Parties and their respective Affiliates from and against any and all Losses sustained by the
Triton Parties or such Affiliates as a result of the inclusion of any Seller Information in any Securities Filings unless the Seller Information provided in writing by the Triton Parties
(i) contained any statement that, at such time and in light of the circumstances under which it was made, was false or misleading with respect to any material fact, or (ii) omitted to
state any material fact required to be stated therein or necessary in order to make the statements made therein not misleading.
6.9 No Shopping. Prior to the date on which this Agreement is terminated pursuant to Article 11 hereof, none of
the Triton Parties nor any of their Affiliates, advisors or representatives shall, directly or indirectly, solicit, encourage or initiate any contact with, negotiate with or provide any information
to, endorse or enter into any agreement with respect to, or take any other action to facilitate any Person or group, other than Purchaser and its representatives, concerning any inquiries or the
making of any proposals concerning any merger, sale of all or substantially all of the Purchased Assets or the Business, acquisition of a substantial equity interest in TCI or any of the Triton
Parties or any similar transaction involving TCI or any of the Triton Parties.
6.10 |