EXHIBIT 10.5
EXECUTION COPY
LICENSE EXCHANGE AGREEMENT
by and among
TRITON PCS, INC.,
TRITON PCS LICENSE COMPANY L.L.C.,
AT&T WIRELESS SERVICES, INC.,
AT&T WIRELESS PCS LLC
and
CINGULAR WIRELESS LLC
Dated July 7, 2004
LICENSE EXCHANGE AGREEMENT
THIS LICENSE EXCHANGE AGREEMENT (this "Agreement"), dated the 7th day of
July, 2004, is by and among TRITON PCS, INC., a Delaware corporation ("Triton"),
TRITON PCS LICENSE COMPANY L.L.C., a Delaware limited liability company ("Triton
PCS"), AT&T WIRELESS SERVICES, INC., a Delaware corporation ("AWS"), AT&T
WIRELESS PCS LLC, a Delaware limited liability company ("AWS PCS"), and CINGULAR
WIRELESS LLC, a Delaware limited liability company ("Cingular").
RECITALS
WHEREAS, Cingular's sole manager, Cingular Wireless Corporation ("CWC"),
has entered into the Merger Agreement, whereby it will acquire AWS and AWS PCS;
and
WHEREAS, AWS, AWS PCS, Cingular and Triton have entered into an Agreement
simultaneously with the execution and delivery of this Agreement to address
their existing and future relationships (the "Commercial Agreement"); and
WHEREAS, this Agreement is being executed in connection with the
Commercial Agreement.
NOW, THEREFORE, in consideration of the recitals and of the mutual
covenants, conditions and agreements set forth herein and for other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
Unless otherwise stated in this Agreement, the following terms when used
herein shall have the meanings assigned to them below (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
1.1 "Affiliate" shall mean, with respect to any Person, any other Person
that, directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such first-named Person. The
term "control" (including, with correlative meanings, the terms "controlled by"
and "under common control with"), as applied to any Person, means the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of such Person, whether through the ownership of
voting securities or other ownership interest, by contract or otherwise. For
purposes of this Agreement, none of Cingular, AWS or AWS PCS shall be deemed to
be an Affiliate of any of Triton or Triton PCS.
1.2 "Agreement" shall have the meaning set forth in the preamble.
1.3 "AWS Licenses" shall mean the licenses issued by the FCC and
currently held by AWS PCS that are set forth on Schedule A.
1.4 "AWS Triton Licenses" shall mean the partitioned and disaggregated
portions of the AWS Licenses identified as "AWS Triton Licenses" on Schedule A.
1.5 "Business Day" shall mean any day other than a Saturday, Sunday,
federal holiday or day on which banking institutions in New York are authorized
or obligated by law or executive order to be closed.
1.6 "Closing" shall have the meaning set forth in Section 9.1(a).
1.7 "Closing Date" shall mean the date on which the Closing occurs.
1.8 "Communications Act" shall mean the Communications Act of 1934, as
amended.
1.9 "Confidentiality Agreement" shall mean that certain Information
Exchange Agreement dated as of April 14, 2004 by and among AWS, Cingular and
Triton PCS Holdings, Inc.
1.10 "Consents" shall mean the consents, permits, approvals and
authorizations of Governmental Authorities and other Persons necessary to
consummate the transactions contemplated by the Transaction Documents.
1.11 "Credit Agreement" shall mean the Credit Agreement dated as of June
13, 2003 by and among Triton PCS Holdings, Inc., Triton, the Lenders Party
thereto, Xxxxxx Commercial Paper Inc., as Administrative Agent, Cobank ACB, as
Co-Syndication Agent, Chase Lincoln First Commercial Corporation, as
Co-Documentation Agent, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as
Co-Documentation Agent, and Xxxxxx Brothers Inc., Cobank ACB and Citigroup
Global Markets Inc., as Joint Lead Arrangers, as amended by the First Amendment
dated as of September 29, 2003.
1.12 "Enforceability Exceptions" shall mean the exceptions or limitations
to the enforceability of contracts under bankruptcy, insolvency, fraudulent
conveyance or transfer, moratorium or similar laws affecting creditors rights
generally or by judicial discretion in the enforcement of equitable remedies and
by public policies generally.
1.13 "FCC" shall mean the Federal Communications Commission.
1.14 "FCC Consent" shall mean the Consent of the FCC to the partition and
disaggregation (as applicable), transfer and assignment of the AWS Triton
Licenses by AWS PCS to Triton PCS, of the Triton Licenses by Triton PCS to AWS
PCS, of the Lafayette License by Lafayette to Triton PCS, and of the Lafayette
License by Triton PCS to AWS PCS, all in accordance with the terms of this
Agreement.
1.15 "Final Order" shall mean action by a Governmental Authority as to
which (i) no request for stay by such authority of the action is pending, no
such stay is in effect, and, if any deadline for filing any such request is
designated by statute or regulation, it has passed; (ii) no petition for
rehearing or reconsideration of the action is pending before such Governmental
Authority, and the time for filing any such petition has passed; (iii) such
Governmental Authority does not have the action under reconsideration on its own
motion and the time for such
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reconsideration has passed; and (iv) no appeal to a court, or request for stay
by a court, of such Governmental Authority's action is pending or in effect,
and, if any deadline for filing any such appeal or request is designated by
statute or rule, it has passed.
1.16 "Governmental Authority" shall mean any federal, state or local
governmental authority or instrumentality, including any court, tribunal or
administrative or regulatory agency, department, bureau, commission or board.
1.17 "Indentures" shall mean each of (i) the Indenture dated as of
January 19, 2001 between Triton, the Guarantors Party thereto and The Bank of
New York, as Trustee, relating to Triton's 9-3/8% Senior Subordinated Notes due
2011, (ii) the Indenture dated as of November 14, 2001 between Triton, the
Guarantors Party thereto and The Bank of New York, as Trustee, relating to
Triton's 8-3/4% Senior Subordinated Notes due 2011, and (iii) the Indenture
dated as of June 13, 2003 among Triton, the Guarantors party thereto and The
Bank of New York, as Trustee, relating to Triton's 8-1/2% Senior Notes due 2013.
1.18 "Lafayette" shall mean Lafayette Communications Company L.L.C., a
Delaware limited liability company.
1.19 "Lafayette License" shall mean the license issued by the FCC and
currently held by Lafayette that is set forth on Schedule C.
1.20 "Legal Requirement" shall mean applicable common law and any
applicable statute, permit, ordinance, code or other law, rule, regulation or
order enacted, adopted, promulgated or applied by any Governmental Authority,
including any applicable order, decree or judgment handed down, adopted or
imposed by any Governmental Authority, all as in effect from time to time.
1.21 "Liens" shall mean all claims, liabilities, security interests,
mortgages, liens, pledges, conditions, charges or encumbrances of any nature
whatsoever.
1.22 "Merger" shall mean the acquisition of AWS by CWC pursuant to the
Agreement and Plan of Merger, dated as of February 17, 2004, by and among AWS,
CWC, Cingular and Links I Corporation and, for certain limited purposes, SBC
Communications, Inc. and BellSouth Corporation, as it may be amended from time
to time (the "Merger Agreement").
1.23 "Organizational Documents" shall mean, with respect to any Person
(other than an individual), the articles or certificate of incorporation,
bylaws, certificate of limited partnership, partnership agreement, certificate
of formation, limited liability company operating agreement, and all other
organizational documents of such Person.
1.24 "Person" shall mean any individual, corporation, association,
partnership, joint venture, trust, estate, limited liability company, limited
liability partnership, Governmental Authority, or other entity or organization.
1.25 "Representatives" shall mean, with respect to any Person, such
Person's employees, officers, directors, financial advisors or legal counsel or
Affiliates or any of such Affiliate's employees, officers, directors, financial
advisors or legal counsel.
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1.26 "Required Consent" shall mean, with respect to each of Triton,
Triton PCS, AWS, AWS PCS and Cingular, the Consents set forth opposite its name
on Schedule 3.3 and marked with an asterisks.
1.27 "Triton Licenses" shall mean the licenses issued by the FCC and
currently held by Triton PCS that are set forth on Schedule B.
1.28 "Rules of Construction. Words used in this Agreement, regardless of
the gender and number specifically used, shall be deemed and construed to
include any other gender and any other number as the context requires. As used
in this Agreement, the word "including" is not limiting, and the word "or" is
not exclusive. Except as specifically otherwise provided in this Agreement in a
particular instance, a reference to a Section is a reference to a Section of
this Agreement, a reference to an Exhibit is a reference to an Exhibit to this
Agreement, and a reference to a Schedule is a reference to a Schedule to this
Agreement. The terms "hereof," "herein" and other like terms refer to this
Agreement as a whole, including the Schedules and Exhibits to this Agreement,
and not solely to any particular part of this Agreement. The descriptive
headings in this Agreement are inserted for convenience of reference only and
are not intended to be part of or to affect the meaning or interpretation of
this Agreement.
ARTICLE 2
AGREEMENTS
2.1 Exchange of FCC Licenses. Subject to the terms and conditions of
this Agreement, at the Closing, AWS PCS hereby agrees to transfer, convey,
assign and deliver to Triton PCS, and Triton PCS hereby agrees to acquire and
accept from AWS PCS, the AWS Triton Licenses, free and clear of all Liens, and
Triton PCS hereby agrees to transfer, convey, assign and deliver to AWS PCS, and
AWS PCS hereby agrees to acquire and accept from Triton PCS, the Triton Licenses
and the Lafayette License, free and clear of all Liens. In connection with the
transactions contemplated by this Section 2.1, and subject to the terms and
conditions of this Agreement, Cingular shall pay to Triton $4,697,640 in cash,
by wire transfer of immediately available funds, at the Closing (the "Closing
Cash Payment").
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
Each of AWS, AWS PCS, Cingular, Triton and Triton PCS severally represents
with respect to itself only to the other parties to this Agreement as follows:
3.1 Organization. It has been duly organized and is validly existing and
in good standing under the laws of the jurisdiction of its organization, with
full corporate or limited liability company (as the case may be) power and
authority to enter into this Agreement and the other instruments, agreements,
certificates and documents to be executed and delivered by it in connection with
this Agreement (collectively with this Agreement, the "Transaction Documents"),
and to execute and deliver the Transaction Documents and to perform its
obligations hereunder and thereunder.
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3.2 Authorization; Enforceability. The execution, delivery and
performance by it of the Transaction Documents are within its corporate or
limited liability company (as the case may be) power and authority and have been
duly authorized and approved by all necessary corporate or limited liability
company (as the case may be) actions. The Transaction Documents have been duly
executed and delivered by it, and the Transaction Documents are or will be, as
the case may be, when executed and delivered by the parties hereto and thereto
other than it, the valid and binding obligations of it, enforceable against it
in accordance with their respective terms, subject to the Enforceability
Exceptions.
3.3 No Violation or Conflict. The execution, delivery and performance by
it of the Transaction Documents to which it is a party (with or without the
giving of notice, the lapse of time, or both): (a) except as set forth opposite
its name on Schedule 3.3, do not require any Consent, declaration to, or filing
with any Governmental Authority or any other Person that has not been obtained;
(b) will not conflict with any provision of its Organizational Documents as
currently in effect; (c) will not conflict with, result in a breach of, or
constitute a default under any Legal Requirement to which it is bound; and (d)
will not conflict with, constitute grounds for termination of, result in a
breach of, constitute a default under, or accelerate or permit the acceleration
of any performance required by the terms of any agreement or instrument to which
it is a party or bound.
3.4 Claims and Litigation. As of the date of this Agreement, except as
set forth opposite its name on Schedule 3.4, there is no pending or written
threat of a claim, legal action, arbitration, governmental investigation or
other legal, administrative or tax proceeding, nor any order, decree or judgment
pending, or, to its knowledge, threatened other than in writing, against or
relating to it or its subsidiaries' assets or business that would have an
adverse effect on its ability to perform its obligations under the Transaction
Documents.
3.5 Certain Fees. No finder, broker, agent, financial advisor or other
intermediary has acted on its behalf in connection with the Transaction
Documents or the transactions contemplated thereby, or is entitled to any
payment in connection herewith or therewith which, in either case, would result
in any obligation or liability to any other party to this Agreement or any
Affiliate of any such other party.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE FCC LICENSES
4.1 Representations and Warranties With Respect to the AWS Licenses. AWS
and AWS PCS jointly and severally represent and warrant to Triton and Triton PCS
as follows:
(a) Title to the AWS Licenses. AWS PCS has good and marketable
title to the AWS Licenses, free and clear of all Liens. Upon delivery to Triton
PCS on the Closing Date, AWS PCS will transfer to Triton PCS good and marketable
title to the AWS Triton Licenses, subject to no indebtedness or Liens.
(b) Validity of AWS Licenses. AWS PCS has performed all of its
material obligations required to have been performed under the AWS Licenses, and
no event has occurred
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or condition or state of facts exists which constitutes or, after notice or
lapse of time or both, would constitute a breach of, or default under, any of
the AWS Licenses or the AWS Triton Licenses or which permits or, after notice or
lapse of time or both, would permit revocation or termination of any of the AWS
Licenses or the AWS Triton Licenses, or which might adversely affect in any
material respect the rights of AWS PCS under any of the AWS Licenses. No notice
of cancellation or default or of any dispute concerning any of the AWS Licenses,
or of any event, condition or state of facts described in the preceding clause,
has been received by, or is known to, AWS or AWS PCS, and the AWS Licenses are
valid, existing and in full force and effect. Neither AWS nor AWS PCS has any
reason to believe that the AWS Licenses or the AWS Triton Licenses are not
likely to be renewed in the ordinary course. Subject to the FCC Consent, the AWS
Triton Licenses may be assigned and transferred to Triton PCS in accordance with
this Agreement and will continue in full force and effect thereafter without the
consent, approval, or act of or making of any filing with any Governmental
Authority. The AWS Licenses (i) were granted on the grant dates specified on
Schedule A and (ii) expire on the expiration dates specified on Schedule A. The
file number and grant date for each applicable construction benchmark
notification are also specified on Schedule A. AWS PCS has submitted to the FCC,
on Form 601, a timely notification of its satisfaction of the five-year
construction benchmark applicable to each of the AWS Licenses held by it as
mandated by 47 C.F.R. Section 24.203. The factual assertions of AWS PCS in each
Form 601 were, when filed, true and correct in all material respects.
(c) No Violation, Litigation or Regulatory Action.
(i) AWS PCS has complied in all material respects with all
Legal Requirements which are applicable to the AWS Licenses or to AWS PCS's
ownership, operation and holding thereof, including, without limitation, Section
310(b) of the Communications Act, and all rules, regulations or policies of the
FCC promulgated thereunder with respect to alien ownership, and with all FCC
rules concerning A Block eligibility. AWS PCS is qualified under the FCC's rules
and the Communications Act to hold and convey the AWS Licenses and AWS Triton
Licenses. There are no facts or circumstances relating to the FCC qualifications
of AWS PCS or any of their Affiliates that would prevent or materially delay the
FCC's grant of any FCC Form 603 (or other appropriate form) application under
FCC rules and the Communications Act.
(ii) Other than regulatory proceedings of general
applicability, there is no investigation, claim, action, suit or other
proceeding pending or threatened against AWS, AWS PCS or relating to AWS, AWS
PCS or their respective assets, including any of the AWS Licenses, which,
individually or collectively, either would reasonably be expected to result in
the revocation, cancellation, suspension or material adverse modification of any
of the AWS Licenses or AWS Triton Licenses, would reasonably be expected to
result in fines or forfeitures for noncompliance with FCC rules and regulations
(such as environmental or tower marking and lighting rules) or would reasonably
be expected to have a material adverse effect on (i) any of the AWS Licenses,
(ii) the AWS Triton Licenses, (iii) the ability of AWS or AWS PCS to perform
their obligations hereunder, (iv) the FCC Consent or (v) the financial
condition, assets, liabilities, business, or results of operations of AWS or AWS
PCS with respect to the AWS Licenses, nor is AWS or AWS PCS aware of any
reasonable basis for any such investigation, claim, action, suit or proceeding.
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(d) Orders; Contracts; Agreements. The execution, delivery and
performance by AWS and AWS PCS of the Transaction Documents to which they are
parties (with or without the giving of notice, the lapse of time, or both) will
not result in the creation or imposition of any Lien upon any of the AWS
Licenses or the AWS Triton Licenses. The AWS Licenses are not subject to, and
the AWS Triton Licenses will not be subject to, (a) any note, indenture,
instrument, agreement, contract, mortgage, lease, license, franchise, permit or
other authorization, rights, restriction or obligation to which AWS or AWS PCS
is a party or by which AWS or AWS PCS or any of AWS's or AWS PCS's assets are
bound, or (b) any judgment, order, award or decree of any foreign, federal,
state, local or other court or tribunal or any award in any arbitration
proceeding (collectively, a "Court Order") to which AWS or AWS PCS is a party or
with respect to which any of AWS's or AWS PCS's assets are bound. AWS and AWS
PCS are not subject to, or in default under, any outstanding Court Order, and
there are no contracts or agreements to which AWS or AWS PCS or any of their
controlled Affiliates is a party, which, (in the case of each of the foregoing
clauses) individually or collectively, either would reasonably be expected to
result in the revocation, cancellation, suspension or material adverse
modification of any of the AWS Licenses or would reasonably be expected to have
an adverse effect on (i) any of the AWS Licenses, (ii) any of the AWS Triton
Licenses, (iii) the ability of AWS or AWS PCS to perform their obligations
hereunder, or (iv) obtaining the FCC Consent.
(e) FCC Matters. The AWS Licenses are validly held in AWS PCS's
name. AWS PCS is the exclusive authorized, legal holder of the AWS Licenses. The
AWS Licenses have been granted by Final Order and authorize, without further
consent or authorization from the FCC, the construction and operation of a PCS
system in the license areas indicated on Schedule A. The AWS Licenses are valid
and in full force and effect without condition, except those conditions stated
on the AWS Licenses and except conditions applicable to holders of A Block
broadband personal communications licenses generally and are unimpaired by any
acts or omissions of AWS or AWS PCS or their controlled Affiliates. All material
reports and other documents required to be filed by AWS PCS and its controlled
Affiliates with the FCC and with state regulatory authorities have been filed.
All such reports and documents are correct in all material respects. Subject to
obtaining the FCC Consent and the Consents set forth opposite AWS's, AWS PCS's
and Cingular's names on Schedule 3.3, AWS PCS has the absolute and unrestricted
right, power and authority under applicable Legal Requirements to assign the AWS
Triton Licenses to Triton PCS.
(f) Microwave Relocation Matters.
(i) AWS PCS is not a party to any contract, agreement or
understanding, oral or written, providing for the relocation of microwave
service providers or the sharing of any costs associated with any such
relocation with respect to any of the AWS Triton Licenses.
(ii) To the knowledge of AWS PCS, no microwave relocation
activities, actions or efforts are planned or in progress with respect to any of
the AWS Triton Licenses.
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4.2 Representations and Warranties with respect to the Triton Licenses
and the Lafayette License. Triton and Triton PCS jointly and severally represent
and warrant to Cingular as follows:
(a) Title to the Triton Licenses and the Lafayette License. Triton
PCS has good and marketable title to the Triton Licenses, free and clear of all
Liens. Lafayette has, and Triton will have on the Closing Date, good and
marketable title to the Lafayette License, free and clear of all Liens. Upon
delivery to AWS PCS on the Closing Date Triton PCS will transfer to AWS PCS good
and marketable title to the Triton Licenses and Lafayette License, subject to no
indebtedness or Liens.
(b) Validity of Triton Licenses and Lafayette License.
(i) Triton PCS has performed all of its material obligations
required to have been performed under the Triton Licenses, and no event has
occurred or condition or state of facts exists which constitutes or, after
notice or lapse of time or both, would constitute a breach of, or default under,
any of the Triton Licenses which permits or, after notice or lapse of time or
both, would permit revocation or termination of any of the Triton Licenses or
which might adversely affect in any material respect the rights of Triton under
any of the Triton Licenses. No notice of cancellation, of default or of any
dispute concerning any of the Triton Licenses, or of any event, condition or
state of facts described in the preceding clause, has been received by, or is
known to, Triton or Triton PCS, and the Triton Licenses are valid, existing and
in full force and effect. Neither Triton nor Triton PCS has any reason to
believe that the Triton Licenses are not likely to be renewed in the ordinary
course. Subject to the FCC Consent, the Triton Licenses may be assigned and
transferred to AWS PCS in accordance with this Agreement and will continue in
full force and effect thereafter without the consent, approval, or act of or
making of any filing with any Governmental Authority. The Triton Licenses (A)
were granted on the grant dates specified on Schedule B and (B) expire on the
expiration dates specified on Schedule B. The file number and grant date for
each applicable construction benchmark notification are also specified on
Schedule B. Triton PCS has submitted to the FCC, on Form 601, a timely
notification of its satisfaction of the five-year construction benchmark
applicable to each of the Triton Licenses held by it as mandated by 47 C.F.R.
Section 24.203. The factual assertions of Triton PCS in each Form 601 were, when
filed, true and correct in all material respects.
(ii) Lafayette has performed all of its material obligations
required to have been performed under the Lafayette License, and no event has
occurred or condition or state of facts exists which constitutes or, after
notice or lapse of time or both, would constitute a breach of, or default under,
the Lafayette License which permits or, after notice or lapse of time or both,
would permit revocation or termination of the Lafayette License, or which might
adversely affect in any material respect the rights of Lafayette under the
Lafayette License. No notice of cancellation, of default or of any dispute
concerning the Lafayette License, or of any event, condition or state of facts
described in the preceding clause, has been received by or is known to, Triton
or Triton PCS, and the Lafayette License is valid, existing and in full force
and effect. Neither Triton nor Triton PCS has any reason to believe that the
Lafayette License is not likely to be renewed in the ordinary course. Subject to
the FCC Consent, the Lafayette License may be assigned and transferred to AWS
PCS in accordance with this Agreement and will
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continue in full force and effect thereafter without the consent, approval, or
act of or making of any filing with Governmental Authority. The Lafayette
License (A) was granted on the grant date specified on Schedule C and (B)
expires on the expiration date specified on Schedule C. The file number and
grant date for each applicable construction benchmark notification are also
specified on Schedule C. Lafayette has submitted to the FCC, on Form 601, a
timely notification of its satisfaction of the five-year construction benchmark
applicable to the Lafayette License held by it as mandated by 47 C.F.R. Section
24.203. The factual assertions of Lafayette in each Form 601 were, when filed,
true and correct in all material respects.
(c) No Violation, Litigation or Regulatory Action.
(i) (A) Triton PCS has complied in all material respects
with all Legal Requirements which are applicable to the Triton Licenses or to
Triton PCS's ownership, operation and holding thereof, including, without
limitation, Section 310(b) of the Communications Act, and all rules, regulations
or policies of the FCC promulgated thereunder with respect to alien ownership,
and with all FCC rules concerning C Block eligibility. Triton PCS is qualified
under the FCC's rules and the Communications Act to hold and convey the Triton
Licenses. There are no facts or circumstances relating to the FCC qualifications
of Triton PCS or any of its Affiliates that would prevent or materially delay
the FCC's grant of any FCC Form 603 (or other appropriate form) application
under FCC rules and the Communications Act.
(B) Lafayette has complied in all material respects
with all Legal Requirements which are applicable to the Lafayette License or to
Lafayette's ownership, operation and holding thereof, including, without
limitation, Section 310(b) of the Communications Act, and all rules, regulations
or policies of the FCC promulgated thereunder with respect to alien ownership,
and with all FCC rules concerning C Block eligibility. Lafayette is qualified
under the FCC's rules and the Communications Act to hold and convey the
Lafayette License. There are no facts or circumstances relating to the FCC
qualifications of Lafayette or any of its Affiliates that would prevent or
materially delay the FCC's grant of any FCC Form 603 (or other appropriate form)
application under FCC rules and the Communications Act.
(ii) (A) Other than regulatory proceedings of general
applicability, there is no investigation, claim, action, suit or other
proceeding pending or threatened against Triton or Triton PCS or relating to
Triton or Triton PCS or their respective assets, including any of the Triton
Licenses, which, individually or collectively, either would reasonably be
expected to result in the revocation, cancellation, suspension or material
adverse modification of any of the Triton Licenses, would reasonably be expected
to result in fines or forfeitures for noncompliance with FCC rules and
regulations (such as environmental or tower marking and lighting rules) or would
reasonably be expected to have a material adverse effect on (i) any of the
Triton Licenses, (ii) the ability of Triton or Triton PCS to perform their
obligations hereunder, (iii) the FCC Consent or (iv) the financial condition,
assets, liabilities, business, or results of operations of Triton or Triton PCS
with respect to the Triton Licenses, nor is Triton or Triton PCS aware of any
reasonable basis for any such investigation, claim, action, suit or proceeding.
(B) Other than regulatory proceedings of general
applicability, there is no investigation, claim, action, suit or other
proceeding pending or threatened against Lafayette relating to Lafayette or its
assets, including the Lafayette License, which, individually
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or collectively, either would reasonably be expected to result in the
revocation, cancellation, suspension or material adverse modification of the
Lafayette License, would reasonably be expected to result in fines or
forfeitures for noncompliance with FCC rules and regulations (such as
environmental or tower marking and lighting rules) or would reasonably be
expected to have a material adverse effect on (i) the Lafayette License, (ii)
the FCC Consent or (iii) the financial condition, assets, liabilities, business,
or results of operations of Lafayette with respect to the Lafayette License, nor
is Triton or Triton PCS aware of any reasonable basis for any such
investigation, claim, action, suit or proceeding.
(d) Orders; Contracts; Agreements.
(i) The execution, delivery and performance by Triton and
Triton PCS of the Transaction Documents to which they are parties (with or
without the giving of notice, the lapse of time, or both) will not result in the
creation or imposition of any Lien upon any of the Triton Licenses. The Triton
Licenses are not subject to, and will not be subject to, (A) any note,
indenture, instrument, agreement, contract, mortgage, lease, license, franchise,
permit or other authorization, rights, restriction or obligation to which Triton
or Triton PCS is a party or by which Triton or Triton PCS or any of Triton's or
Triton PCS's assets are bound, or (B) any Court Order to which Triton or Triton
PCS is a party or with respect to which any of Triton or Triton PCS's assets are
bound. Triton and Triton PCS are not subject to, or in default under, any
outstanding Court Order, and there are no contracts or agreements to which
Triton or Triton PCS or any of their controlled Affiliates is a party, which,
(in the case of each of the foregoing clauses) individually or collectively,
either would reasonably be expected to result in the revocation, cancellation,
suspension or adverse modification of any of the Triton Licenses or would
reasonably be expected to have an adverse effect on (i) any of the Triton
Licenses, (ii) the ability of Triton or Triton PCS to perform their obligations
hereunder, or (iii) obtaining the FCC Consent.
(ii) The Lafayette License is not subject to, (a) any note,
indenture, instrument, agreement, contract, mortgage, lease, license, franchise,
permit or other authorization, rights restriction or obligation to which
Lafayette is a party or by which Lafayette or any of Lafayette's assets are
bound, or (b) any Court Order to which Lafayette is a party or with respect to
which any of Lafayette's assets are bound. Lafayette is not subject to, or in
default under, any outstanding Court Order, and there are no contracts or
agreements to which Lafayette or any of its controlled Affiliates is a party,
which, (in the case of each of the foregoing clauses) individually or
collectively, either would reasonably be expected to result in the revocation,
cancellation, suspension or adverse modification of the Lafayette License or
would reasonably be expected to have an adverse effect on (i) the Lafayette
License, or (ii) obtaining the FCC Consent.
(e) FCC Matters.
(i) The Triton Licenses are validly held in Triton PCS's
name. Triton PCS is the exclusive authorized, legal holder of the Triton
Licenses. The Triton Licenses have been granted by Final Order and authorize,
without further consent or authorization from the FCC, the construction and
operation of a PCS system in the license areas indicated on Schedule B. The
Triton Licenses are valid and in full force and effect without condition, except
those
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conditions stated on the Triton Licenses and except conditions applicable to
holders of C Block, or partitioned, disaggregated or partitioned and
disaggregated C Block broadband personal communications licenses generally and
are unimpaired by any acts or omissions of Triton, Triton PCS or their
controlled Affiliates. All material reports and other documents required to be
filed by Triton PCS and its controlled Affiliates with the FCC and with state
regulatory authorities have been filed. All such reports and documents are
correct in all material respects. Subject to obtaining the FCC Consent and the
Consents set forth opposite Triton's and Triton PCS's name on Schedule 3.3,
Triton PCS has the absolute and unrestricted right, power and authority under
applicable Legal Requirements to assign the Triton Licenses to AWS PCS.
(ii) The Lafayette License is validly held in Lafayette's
name. Lafayette is the exclusive authorized, legal holder of the Lafayette
License. The Lafayette License has been granted by Final Order and authorize,
without further consent or authorization from the FCC, the construction and
operation of a PCS system in the license areas indicated on Schedule C. The
Lafayette License is valid and in full force and effect without condition,
except those conditions stated on the Lafayette License and except conditions
applicable to holders of C Block, or partitioned, disaggregated or partitioned
and disaggregated C Block broadband personal communications licenses generally
and is unimpaired by any acts or omissions of Lafayette or its controlled
Affiliates. All material reports and other documents required to be filed by
Lafayette and its controlled Affiliates with the FCC and with state regulatory
authorities have been filed. All such reports and documents are correct in all
material respects.
(f) Microwave Relocation Matters.
(i) (A) Triton PCS is not a party to any contract, agreement
or understanding, oral or written, providing for the relocation of microwave
service providers or the sharing of any costs associated with any such
relocation with respect to any of the Triton Licenses.
(B) Lafayette is not a party to any contract,
agreement or understanding, oral or written, providing for the relocation of
microwave service providers or the sharing of any costs associated with any such
relocation with respect to the Lafayette License.
(ii) (A) To the knowledge of Triton PCS, no microwave
relocation activities, actions or efforts are planned or in progress with
respect to any of the Triton Licenses.
(B) To the knowledge of each of Triton PCS and
Lafayette, no microwave relocation activities, actions or efforts are planned or
in progress with respect to the Lafayette License.
(g) Unjust Enrichment Provisions. The Triton Licenses and the
Lafayette License are freely transferable to AWS PCS under the FCC's rules and
are not subject to any installment payment obligations to the U.S. Government or
to any of the unjust enrichment provisions applicable to PCS licenses, other
than the unjust enrichment provisions of 47 C.F.R. Sections 1.2111(b) and (d)(2)
as they may be applicable to the Lafayette License on the Closing Date.
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ARTICLE 5
COVENANTS
5.1 Access to Information. Between the date of this Agreement and the
Closing, each party to this Agreement shall give each other party to this
Agreement and such other party's officers, employees, agents, counsel,
accountants and other representatives, commercially reasonable access during
normal business hours upon reasonable prior notice and approval, which shall not
be unreasonably withheld, to all of such party's records, information and
knowledgeable personnel that such other party reasonably requests as may be
reasonably necessary to confirm such party's representations and warranties and
compliance with such party's covenants and agreements contained in the
Transaction Documents; provided, that any inspection of another party's
properties or discussion with another party's personnel shall occur only if a
representative designated by such party is present. All such information
provided pursuant to this Section 5.1 shall be subject to the Confidentiality
Agreement. The rights of the parties under this Section 5.1 shall not be
exercised in such a manner as to interfere unreasonably with the business or
operations of any party or for any purpose other than in connection with the
consummation of the transactions contemplated by this Agreement.
5.2 FCC Consent
(a) Each of AWS, AWS PCS, Cingular, Triton and Triton PCS
covenants and agrees to act diligently and use commercially reasonable efforts
to obtain, as promptly as possible, the FCC Consent as provided herein for the
partition (as applicable), disaggregation (as applicable), transfer and
assignment of the AWS Triton Licenses to Triton PCS, the Triton Licenses to AWS
PCS, the Lafayette License to Triton PCS, and the Lafayette License to AWS PCS,
and each of AWS, AWS PCS, Cingular, Triton and Triton PCS shall, in any event,
no later than ten (10) Business Days after the date hereof, file appropriate
applications with the FCC for the partition and disaggregation (as applicable),
transfer and assignment of the AWS Triton Licenses to Triton PCS, the Triton
Licenses to AWS PCS, the Lafayette License to Triton PCS, and the Lafayette
License to AWS PCS, as applicable. Such FCC applications shall indicate, where
applicable, that the partitionee or disaggregatee agrees to satisfy future
build-out obligations with respect to any partitioned or disaggregated spectrum.
Notwithstanding anything to the contrary herein, none of AWS, AWS PCS, Cingular
or any of their respective controlled Affiliates shall make any filing with the
FCC that could adversely affect any of the AWS Licenses, the AWS Triton
Licenses, the Triton Licenses, the Lafayette License, the transactions
contemplated hereby or obtaining the FCC Consent, and none of Triton, Triton PCS
or any of their respective controlled Affiliates shall make any filing with the
FCC that could adversely affect any of the AWS Licenses, the AWS Triton
Licenses, the Triton Licenses, the Lafayette License, the transactions
contemplated hereby or obtaining the FCC Consent.
(b) Each of AWS, AWS PCS, Cingular, Triton and Triton PCS shall
(A) promptly deliver to the other parties hereto any notice or inquiry received
by it from the FCC with respect to any of the filings made pursuant to Section
5.2(a), or the AWS Licenses, the AWS Triton Licenses, the Triton Licenses, or
the Lafayette License, (B) promptly deliver to the other parties hereto any
notice or inquiry received by it from the FCC with respect to any of the AWS
Licenses, the AWS Triton Licenses, the Triton Licenses, the Lafayette License or
any
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other aspect of the transactions contemplated by this Agreement or any other
Transaction Document or to cause any breach of any representation or warranty or
non-fulfillment of any covenant hereunder or thereunder, (C) cooperate with each
other party hereto in formulating a response to any such notice or inquiry
indicated in clause (A) or (B) of this Section 5.2(b), and (D) promptly file
with the FCC a response to any such notice or inquiry indicated in clause (A) or
(B) of this Section 5.2(b), which response shall be reasonably acceptable to
each other party to this Agreement.
(c) Each of AWS, AWS PCS, Cingular, Triton and Triton PCS shall
furnish to the other parties all information concerning such party and its
Affiliates reasonably required for inclusion in any application or filing to be
made by it or any other party in connection with the transactions contemplated
by this Agreement or otherwise to determine compliance with applicable Legal
Requirements.
(d) Triton and Triton PCS covenants and agrees to, and Triton
covenants and agrees to cause Lafayette to, act diligently and use commercially
reasonable efforts to cause the Lafayette License to be assigned and transferred
to Triton PCS prior to the Closing Date.
(e) In the event the FCC or Department of Treasury assesses or
otherwise requires payment of unjust enrichment or similar penalties as a
condition to its consent of the assignment and transfer of the Lafayette License
from Lafayette to Triton PCS or from Triton PCS to AWS PCS, Triton and Triton
PCS covenant and agree that all such obligations will be satisfied by either
Triton, Triton PCS or Lafayette on or prior to the Closing Date.
5.3 Operations Prior to the Closing.
(a) At all times prior to the Closing, AWS PCS shall keep and
maintain the AWS Licenses current and in good standing. AWS PCS shall comply in
all material respects with all applicable Legal Requirements, including all
Legal Requirements relating to the AWS Licenses or their use. AWS PCS shall
retain control of the AWS Licenses at all times prior to the Closing, provided
that ultimate control of the AWS Licenses will be transferred to Cingular upon
the consummation of the Merger. AWS PCS shall not: (i) directly or indirectly
sell, lease, transfer or otherwise dispose of, or mortgage or pledge, or impose
or suffer to be imposed any Lien on, any of the AWS Licenses or any interest
therein or negotiate therefor; (ii) take or permit to be taken any action to
adversely affect, impair or subject to forfeiture or cancellation any of the AWS
Licenses; or (iii) take or agree to take any other action inconsistent with the
consummation of the transactions contemplated by this Agreement. AWS PCS shall
not incur any material obligation or liability, absolute or contingent, relating
to or affecting any of the AWS Licenses or their use. No later than five (5)
Business Days prior to the Closing Date, AWS PCS shall (a) remove all Liens on
the AWS Triton Licenses and (b) clear all of its operations from the spectrum
associated with the AWS Triton Licenses. AWS PCS shall perform all of its
material obligations required to be performed under all of the AWS Licenses. On
the Closing Date, AWS PCS shall be the exclusive, authorized, legal holder of
the AWS Licenses.
(b) (i) At all times prior to the Closing, Triton PCS shall keep
and maintain the Triton Licenses current and in good standing. Triton PCS shall
comply in all material respects with all applicable Legal Requirements,
including all Legal Requirements
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relating to the Triton Licenses or their use. Triton PCS shall retain control of
the Triton Licenses at all times prior to the Closing. Triton PCS shall not: (i)
directly or indirectly sell, lease, transfer or otherwise dispose of, or
mortgage or pledge, or impose or suffer to be imposed any Lien on, any of the
Triton Licenses or any interest therein or negotiate therefor; (ii) take or
permit to be taken any action to adversely affect, impair or subject to
forfeiture or cancellation any of the Triton Licenses; or (iii) take or agree to
take any other action inconsistent with the consummation of the transactions
contemplated by this Agreement. Triton PCS shall not incur any material
obligation or liability, absolute or contingent, relating to or affecting any of
the Triton Licenses or their use. No later than five (5) Business Days prior to
the Closing Date, Triton PCS shall (a) remove all Liens on the Triton Licenses
and (b) clear all of its operations from the spectrum associated with the Triton
Licenses. Triton PCS shall perform all of its material obligations required to
be performed under all of the Triton Licenses. On the Closing Date, Triton PCS
shall be the exclusive, authorized, legal holder of the Triton Licenses.
(i) At all times prior to the Closing, Triton PCS shall and
shall cause Lafayette to keep and maintain the Lafayette License current and in
good standing. Triton PCS shall and shall cause Lafayette to comply in all
material respects with all applicable Legal Requirements, including all Legal
Requirements relating to the Lafayette License or its use. Except as set forth
herein, Triton PCS shall cause Lafayette to retain control of the Lafayette
License at all times prior to the Closing. Triton PCS shall not and shall cause
Lafayette not to: (i) directly or indirectly sell, lease, transfer or otherwise
dispose of, or mortgage or pledge, or impose or suffer to be imposed any Lien
on, the Lafayette License or any interest therein or negotiate therefor; (ii)
take or permit to be taken any action to adversely affect, impair or subject to
forfeiture or cancellation the Lafayette License; or (iii) take or agree to take
any other action inconsistent with the consummation of the transactions
contemplated by this Agreement. Triton PCS shall not and shall cause Lafayette
not to incur any material obligation or liability, absolute or contingent,
relating to or affecting the Lafayette License or its use. Triton PCS shall, no
later than five (5) Business Days prior to the Closing Date, (a) remove all
Liens on the Lafayette License and (b) clear all of its operations from the
spectrum associated with the Lafayette License. Triton PCS shall and shall cause
Lafayette to perform all of its material obligations required to be performed
under the Lafayette License. On the Closing Date, Triton PCS shall be the
exclusive, authorized, legal holder of the Lafayette License.
5.4 Build-Out Obligations.
(a) From and after the Closing, AWS PCS shall bear full
responsibility for, and exercise full authority and control over, satisfaction
and compliance in all material respects with all construction milestones and
build-out obligations imposed by the FCC with respect to the Triton Licenses and
the Lafayette License.
(b) From and after the Closing, Triton shall bear full
responsibility for, and exercise full authority and control over, satisfaction
and compliance in all material respects with all construction milestones and
build-out obligations imposed by the FCC with respect to the AWS Triton
Licenses.
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5.5 Microwave Relocation Costs,
(a) AWS PCS shall be responsible for, and pay, all costs,
expenses, liabilities and obligations for microwave relocation related to the
AWS Triton Licenses and (i) undertaken by AWS, AWS PCS or their controlled
Affiliates prior to Closing or (ii) undertaken by any Person (other than AWS,
AWS PCS and their controlled Affiliates) for which an invoice for payment is
received prior to the Closing. After the Closing, except as set forth in the
preceding sentence, each of Triton, Triton PCS, AWS, AWS PCS and Cingular shall
be responsible for, and pay, all costs, expenses, liabilities and obligations
for microwave relocation related to their respective portions of the AWS
Licenses in accordance with the rules and regulations of the FCC.
(b) (i) Triton shall be responsible for, and pay, all costs,
expenses, liabilities and obligations for microwave relocation related to the
Triton Licenses and (i) undertaken by Triton, Triton PCS or their controlled
Affiliates prior to Closing or (ii) undertaken by any Person (other than Triton,
Triton PCS and their controlled Affiliates) for which an invoice for payment is
received prior to the Closing. After the Closing, except as set forth in the
preceding sentence, each of Triton, Triton PCS, AWS, AWS PCS and Cingular shall
be responsible for, and pay, all costs, expenses, liabilities and obligations
for microwave relocation related to their respective portions of the Triton
Licenses in accordance with the rules and regulations of the FCC.
(ii) Triton PCS and Triton shall cause Lafayette to be
responsible for, and pay, all costs, expenses, liabilities and obligations for
microwave relocation related to the Lafayette License and (i) undertaken by
Lafayette and its controlled Affiliates prior to Closing or (ii) undertaken by
any Person (other than Lafayette and its controlled Affiliates) for which an
invoice for payment is received prior to the Closing. After the Closing, except
as set forth in the preceding sentence, each of Lafayette and Cingular shall be
responsible for, and pay, all costs, expenses, liabilities and obligations for
microwave relocation related to the Lafayette License in accordance with the
rules and regulations of the FCC.
ARTICLE 6
CONFIDENTIALITY
6.1 Confidentiality. AWS, Cingular and Triton PCS Holdings, Inc. are
parties to the Confidentiality Agreement, and the disclosure of this Agreement,
or the terms hereof or the existence of the transactions contemplated hereby,
shall be governed by the terms of the Confidentiality Agreement. Notwithstanding
the execution, delivery and performance of this Agreement or the termination of
this Agreement prior to Closing in accordance with Article 11, the
Confidentiality Agreement shall remain in full force and effect in accordance
with its terms, but shall expire concurrently with the Closing hereunder.
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ARTICLE 7
JOINT COVENANTS
Each of the parties to this Agreement covenant and agree as follows:
7.1 Cooperation. Without limiting any of the obligations of the parties
hereunder, each of the parties to this Agreement shall cooperate with each other
and their respective counsel, accountants, agents and other representatives in
all commercially reasonable respects in connection with any actions required to
be taken as part of their respective obligations under the Transaction
Documents, and the parties hereto shall use their commercially reasonable
efforts to consummate the transactions contemplated hereby and to fulfill their
respective obligations under the Transaction Documents as expeditiously as
practicable, provided, however, neither Cingular, AWS nor AWS PCS shall have any
obligation to Triton or its Affiliates to cause the closing of the Merger.
Subject to the terms and conditions of this Agreement, from time to time prior
to, at and after the Closing, each party hereto will use commercially reasonable
efforts to take, or cause to be taken, all such actions and to do or cause to be
done, all things, necessary, proper or advisable under applicable Legal
Requirements and regulations to consummate and make effective the transactions
contemplated by the Transaction Documents and the consummation of the other
transactions contemplated by the Transaction Documents, including, without
limitation, executing and delivering such documents as any of the other parties
shall reasonably request in connection with the consummation of this Agreement
and the other Transaction Documents and the consummation of the other
transactions contemplated hereby. After the Closing, each of the parties to this
Agreement will execute any further documents consistent with the Transaction
Documents, provide any further reasonably available information, and take any
other actions not imposing significant financial or operational obligations in
excess of the other obligations imposed by the Transaction Documents, upon the
request of any other party to this Agreement based upon any such other party's
reasonable determination that those actions are required to enable such other
party to effectuate the Transaction Documents. No party to this Agreement shall
take any action which is materially inconsistent with its obligations under the
Transaction Documents, or which would hinder or delay the consummation of the
transactions contemplated by the Transaction Documents. Each party to this
Agreement shall notify each other party to this Agreement of any litigation,
arbitration or administrative proceeding pending or, to its knowledge,
threatened, which challenges any of the transactions contemplated by the
Transaction Documents or which threatens to delay them, and shall use
commercially reasonable efforts to take such steps as may be necessary to remove
any such impediment to the consummation of the transactions contemplated by the
Transaction Documents. Triton PCS shall cause Lafayette to comply with this
Section 7.1 to the same extent that each of the parties to this Agreement is
required to comply with this Section 7.1.
7.2 Consents. Each party to this Agreement shall diligently make and
cooperate with the other parties to this Agreement in using all commercially
reasonable efforts to obtain or cause to be obtained prior to the Closing all
Consents.
7.3 Public Announcements. No party to this Agreement will issue any
press release or make any other public announcements concerning this Agreement
or any of the other
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Transaction Documents or the transactions contemplated hereby or thereby except
with the prior approval (not to be unreasonably withheld or delayed) of the
other parties; provided, however, that if any such disclosure is required by any
applicable Legal Requirements or the rules or regulations of any securities
exchange, such consent shall not be required, but, in such circumstances no
party hereto will make such disclosure without first providing to the other
parties an advance copy of any such disclosure and a reasonable opportunity to
review and comment, to the extent practicable.
7.4 Tax Matters. Triton, Triton PCS, AWS, AWS PCS and Cingular agree to
cooperate fully with each other in effecting the transfers of the AWS Triton
Licenses, Triton Licenses and Lafayette License as an exchange pursuant to
Section 1031 of the Internal Revenue Code, provided that such cooperation is
without additional cost or obligation on the part of Triton, Triton PCS, AWS,
AWS PCS or Cingular. Triton PCS shall cause Lafayette to comply with this
Section 7.4 to the same extent that each of the parties to this Agreement is
required to comply with this Section 7.4.
ARTICLE 8
CONDITIONS PRECEDENT TO OBLIGATION TO CLOSE
8.1 Conditions Applicable to all of the Parties. The obligations of each
of the parties to this Agreement to consummate the transactions contemplated by
this Agreement are subject to satisfaction, at or prior to the Closing, of each
of the following conditions:
(a) Representations, Warranties and Covenants.
(i) Subject to the last sentence of Section 8.4, all
representations and warranties of the other parties to this Agreement made in
this Agreement shall be true and correct in all material respects at and as of
the time of the Closing as though made at and as of that time, except to the
extent such representations and warranties expressly relate to an earlier date
in which case such representations and warranties shall be true and correct in
all material respects on and as of such earlier date and except in each case for
changes contemplated by this Agreement.
(ii) Subject to the last sentence of Section 8.4, all of the
covenants and agreements of the other parties to this Agreement contained in
this Agreement to be complied with and performed by such parties on or prior to
Closing shall have been complied with or performed in all material respects.
(b) Adverse Proceedings. No judgment, injunction, restraining
order or decree of any nature of any court of competent jurisdiction shall be in
effect that restrains or prohibits any party to this Agreement from consummating
any transaction contemplated by the Transaction Documents.
(c) Merger Closing. The Merger shall have been consummated.
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(d) Commercial Agreement. The Closing (as defined in the
Commercial Agreement) shall have occurred simultaneously with, or before, the
Closing under this Agreement.
8.2 Further Conditions Applicable to Triton and Triton PCS. The
obligation of Triton and Triton PCS to consummate the transactions contemplated
by this Agreement is subject to satisfaction, at or prior to the Closing, of
each of the following conditions, in addition to each of the conditions set
forth in Section 8.1:
(a) FCC Consent. The FCC Consent shall have been obtained and
become a Final Order, without the imposition of any terms, conditions or
provisions outside the ordinary course.
(b) Required Consents. All Required Consents shall have been
obtained
(c) Deliveries. AWS, AWS PCS and Cingular shall have delivered to
Triton each of the deliveries set forth in Section 9.2(a) hereof.
8.3 Further Conditions Applicable to AWS, AWS PCS and Cingular. The
obligation of AWS, AWS PCS and Cingular to consummate the transactions
contemplated by this Agreement is subject to satisfaction, at or prior to the
Closing, of each of the following conditions:
(a) FCC Consent. The FCC Consent shall have been obtained and
become a Final Order, without the imposition of any terms, conditions or
provisions outside the ordinary course.
(b) Required Consents. All Required Consents shall have been
obtained.
(c) Deliveries. Triton and Triton PCS shall have delivered to AWS
PCS and Cingular each of the deliveries set forth in Section 9.2(b) hereof.
8.4 Waiver of Conditions, Etc. Notwithstanding anything to the contrary
contained in this Article 8, any party to this Agreement may, in its sole
discretion, waive any condition to its obligation to consummate the transactions
contemplated by this Agreement. No party to this Agreement may rely on the
failure of any condition set forth in this Article 8 to be satisfied if the
failure of such condition to be satisfied is the result of the breach of this
Agreement by such party or, in the case of a breach of the condition set forth
in Section 8.1(b), if such party shall not have used commercially reasonable
efforts to prevent the entry of such judgment, injunction, restraining order or
decree and to appeal as expeditiously as possible any such judgment, injunction,
restraining order or decree that may be entered. For purposes of Section 8.1(a),
AWS, AWS PCS and Cingular, on the one hand, and Triton and Triton PCS, on the
other hand, shall each be deemed a single party to this Agreement.
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ARTICLE 9
CLOSING AND CLOSING DELIVERIES
9.1 Closing.
(a) Closing Date. Subject to (i) the satisfaction or, to the
extent permissible by law, waiver (by the party for whose benefit the closing
condition is imposed) on the date scheduled for Closing of the closing
conditions described in Article 8 hereof and (ii) the provisions of Article 10
hereof, the parties hereto shall be obligated to consummate the transactions
contemplated by this Agreement (the "Closing") on the date notified by Triton to
Cingular and AWS PCS, which date shall be no more than ten (10) Business Days,
and no less than five (5) Business Days, after the date on which the latest of
the following conditions is satisfied: Sections 8.1(c), 8.1(d), 8.2(a), 8.2(b),
8.3(a) and 8.3(b). AWS PCS and Cingular shall notify Triton of the satisfaction
of the following conditions: Sections 8.1(c) and 8.3(b);and Triton shall notify
AWS PCS and Cingular of the satisfaction of the condition set forth in Section
8.2(b).
(b) Closing Place. The Closing shall be held at the offices of
Xxxxxx & Bird LLP, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at other location
as agreed upon by the parties.
9.2 Deliveries at the Closing
(a) At the Closing, AWS, AWS PCS and Cingular, respectively, shall
deliver or cause to be delivered to Triton the following:
(i) A certificate of AWS, AWS PCS and Cingular, dated the
date of the Closing, certifying to the fulfillment of the conditions set forth
in Section 8.1(a)(i) and Section 8.1(a)(ii) by AWS, AWS PCS and Cingular,
respectively;
(ii) An instrument of assignment of the AWS Triton Licenses,
substantially in the form of Exhibit 9.2(a)(ii) hereto (the "Assignment"), duly
executed on behalf of AWS PCS;
(iii) All Required Consents, including the FCC Consent; and
(iv) The Closing Cash Payment.
(b) At the Closing, Triton and Triton PCS shall deliver or cause
to be delivered to Cingular the following:
(i) A certificate of Triton and Triton PCS, dated the date
of the Closing, certifying to the fulfillment of the conditions set forth in
Section 8.1(a)(i) and Section 8.1(a)(ii) by Triton;
(ii) The Assignment, duly executed on behalf of Triton PCS;
and
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(iii) All Required Consents.
ARTICLE 10
INDEMNIFICATION AND OTHER MATTERS
10.1 Survival. All of the representations, warranties and covenants of
AWS PCS, AWS, Triton and Triton PCS contained herein, respectively, shall
survive the Closing and shall continue in full force and effect until the one
(1) year anniversary of the Closing Date, except that the representations and
warranties set forth in Sections 4.1(a), 4.1(b), 4.2(a) and 4.2(b) shall survive
the Closing until the expiration of the applicable statute of limitations, and
the covenants to be performed in whole or in part after the Closing shall
survive until performed in full. Notwithstanding the foregoing, if any claim for
indemnification pursuant to this Article 10 with respect to a breach of the
representations, warranties or covenants contained herein is made on or before
the end of any such applicable period, such representations, warranties or
covenants shall be deemed to survive with respect to the matter claimed as of
the end of such period until resolved as provided herein.
10.2 Indemnification by Cingular
(a) After the Closing, AWS, AWS PCS and Cingular hereby agree,
jointly and severally, to indemnify and hold Triton and Triton PCS harmless
against and with respect to, and shall reimburse Triton and Triton PCS for:
(i) Any and all losses, liabilities or damages suffered by
Triton or Triton PCS or any of their controlled Affiliates, shareholders,
members, partners, officers, directors, employees or agents resulting from any
breach of any representation or warranty of AWS, AWS PCS or Cingular in this
Agreement, or any failure by AWS, AWS PCS or Cingular to perform any covenant of
AWS, AWS PCS Cingular set forth in this Agreement; and
(ii) Any and all reasonable out-of-pocket costs and expenses,
including reasonable legal fees and expenses, incident to any action, suit,
proceeding, claim, demand, assessment or judgment incident to the foregoing or
reasonably incurred in investigating or attempting to avoid the same or to
oppose the imposition thereof, or in enforcing this indemnity.
(b) AWS's, AWS PCS's and Cingular's obligation to indemnify Triton
pursuant to Section 10.2(a) shall be subject to all of the following
limitations:
(i) No indemnification shall be required to be made by AWS,
AWS PCS and Cingular as the Indemnifying Party (as defined below) under Section
10.2(a) until the aggregate amount of all Settled Claims (as defined below) of
Triton and Triton PCS as Claimant (as defined below) exceeds, and then only to
the extent of the excess above, Fifty Thousand Dollars ($50,000) in the
aggregate. AWS, AWS PCS and Cingular will not be required to indemnify, and will
not otherwise be liable to Triton and Triton PCS pursuant to this Section 10.2,
for any amount in excess of Two Million Five Hundred Thousand Dollars
($2,500,000) in the aggregate.
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(ii) Triton and Triton PCS shall be entitled to
indemnification only for those damages arising with respect to any claim as to
which Triton or Triton PCS, as the case may be, has given AWS, AWS PCS or
Cingular written notice within the appropriate time period set forth in Section
10.1 hereof for such claim; provided, however, that the obligation to provide
indemnification pursuant to Section 10.2 shall survive with respect to any such
claim until resolution thereof.
10.3 Indemnification by Triton.
(a) After the Closing, Triton and Triton PCS hereby agree, jointly
and severally, to indemnify and hold AWS, AWS PCS and Cingular harmless against
and with respect to, and shall reimburse, AWS, AWS PCS and Cingular for:
(i) Any and all losses, liabilities or damages suffered by
AWS, AWS PCS or Cingular or any of their controlled Affiliates, shareholders,
members, partners, officers, directors, employees and agents resulting from any
breach of any representation or warranty of Triton in this Agreement or any
failure by Triton or Triton PCS to perform any covenant of Triton and Triton PCS
set forth in this Agreement; and
(ii) Any and all reasonable out-of-pocket costs and expenses,
including reasonable legal fees and expenses, incident to any action, suit,
proceeding, claim, demand, assessment or judgment incident to the foregoing or
reasonably incurred in investigating or attempting to avoid the same or to
oppose the imposition thereof, or in enforcing this indemnity.
(b) Triton's and Triton PCS's obligation to indemnify AWS, AWS PCS
and Cingular pursuant to Section 10.3(a) shall be subject to all of the
following limitations:
(i) No indemnification shall be required to be made by
Triton and Triton PCS as the Indemnifying Party under Section 10.3(a) until the
aggregate amount of all Settled Claims of AWS, AWS PCS and Cingular as Claimant
exceeds, and then only to the extent of the excess above, Fifty Thousand Dollars
($50,000) in the aggregate. Triton and Triton PCS will not be required to
indemnify, and will not otherwise be liable to AWS, AWS PCS and Cingular
pursuant to this Section 10.3, for any amount in excess of Two Million Five
Hundred Thousand Dollars ($2,500,000) in the aggregate.
(ii) AWS, AWS PCS and Cingular shall be entitled to
indemnification only for those damages arising with respect to any claim as to
which AWS, AWS PCS or Cingular, as the case may be, has given Triton or Triton
PCS written notice within the appropriate time period set forth in Section 10.1
hereof for such claim; provided, however, that the obligation to provide
indemnification under this Section 10.3 shall survive with respect to any such
claim until resolution thereof.
10.4 Procedure for Indemnification. The procedure for indemnification
pursuant to this Article 10 shall be as follows:
(a) The party claiming indemnification (the "Claimant") shall
promptly give notice to the party from which indemnification is claimed (the
"Indemnifying Party") of any claim, whether between the parties or brought by a
third party, specifying in reasonable detail the
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factual basis for the claim, the amount thereof, estimated in good faith, and
the method of computation of such claim, all with reasonable particularity and
containing a reference to the provisions of this Agreement in respect of which
such indemnification claim shall have occurred. If the claim relates to an
action, suit, or proceeding filed by a third party against Claimant, such notice
shall be given by Claimant within five Business Days after written notice of
such action, suit, or proceeding was given to Claimant.
(b) With respect to claims solely between the parties, following
receipt of notice from the Claimant of a claim, the Indemnifying Party shall
have thirty days to make such investigation of the claim as the Indemnifying
Party deems necessary or desirable. For the purposes of such investigation, the
Claimant agrees to make available to the Indemnifying Party and its authorized
representatives the information relied upon by the Claimant to substantiate the
claim. If the Claimant and the Indemnifying Party agree at or prior to the
expiration of such thirty-day period (or any mutually agreed upon extension
thereof) to the validity and amount of such claim, the Indemnifying Party shall
immediately pay to the Claimant the full amount of the claim, subject to the
terms hereof (including Sections 10.2(b) and 10.3(b)). If the Claimant and the
Indemnifying Party do not agree within such thirty-day period (or any mutually
agreed upon extension thereof), the Claimant may seek appropriate remedies at
law or equity, as applicable, subject to the limitations of Sections 10.2(b) and
10.3(b). Any claim for indemnity pursuant to this Article 10 with respect to
which (i) the Claimant and the Indemnifying Party agree as to its validity and
amount, (2) a final judgment, order or award of a court of competent
jurisdiction deciding such claim has been rendered, as evidenced by a certified
copy of such judgment, provided that such judgment is not appealable or the time
for taking an appeal has expired or (3) the Indemnifying Party has not given
written notice to the Claimant disputing such claim in whole or in part within
thirty days of receiving notice thereof, is referred to as a "Settled Claim."
(c) With respect to any claim by a third party as to which the
Claimant is entitled to indemnification under this Agreement, the Indemnifying
Party shall have the right at its own expense, to participate in or assume
control of the defense of such claim, and the Claimant shall cooperate fully
with the Indemnifying Party, subject to reimbursement for actual out-of-pocket
expenses incurred by the Claimant as the result of a request by the Indemnifying
Party. If the Indemnifying Party elects to assume control of the defense of any
third-party claim, the Claimant shall have the right to participate in the
defense of such claim at its own expense. If the Indemnifying Party does not
elect to assume control or otherwise participate in the defense of any
third-party claim, then the Claimant may defend through counsel of its own
choosing and (so long as it gives the Indemnifying Party at least fifteen (15)
days' prior written notice of the terms of any proposed settlement thereof and
permits the Indemnifying Party to then undertake the defense thereof) settle
such claim, action or suit, and to recover from the Indemnifying Party the
amount of such settlement or of any judgment and the costs and expenses of such
defense. The Indemnifying Party may compromise or settle any third party claim,
action or suit subject to indemnification hereunder in its sole discretion if
(i) the terms of such compromise or settlement do not impose any non-monetary
obligations on the Claimant and (ii) any monetary obligations in respect of such
compromise or settlement are paid by the Indemnifying Party. Without limiting
the foregoing, the Indemnifying Party may compromise or settle any such third
party claim, action or suit with the prior written consent of the Claimant,
which consent shall not be unreasonably withheld or delayed.
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(d) If a claim, whether between the parties or by a third party,
requires immediate action, the parties will make every effort to reach a
decision with respect thereto as expeditiously as practicable.
(e) Subject to the limitations set forth herein and without
expanding the total liability of AWS, AWS PCS and Cingular, on the one hand, and
Triton and Triton PCS, on the other hand, hereunder, the indemnification rights
provided in Section 10.2 and Section 10.3 shall extend to the members, partners,
shareholders, officers, directors, employees, agents and controlled Affiliates
of any Claimant, although for the purpose of the procedures set forth in this
Section 10.4, any indemnification claims by such parties shall be made by and
through the Claimant.
10.5 Exclusive Remedy. Indemnification pursuant to this Article 10 shall
be the exclusive remedy of the parties for any loss, liability, damages,
expenses or Settled Claims arising out of or related to the transactions
contemplated by this Agreement.
ARTICLE 11
TERMINATION
11.1 Termination
(a) This Agreement may be terminated:
(i) at any time by mutual written consent of all parties to
this Agreement;
(ii) by any party to this Agreement, if the Merger Agreement
is terminated;
(iii) by any party to this Agreement upon written notice to
other party, in the event the other party (the "Breaching Party") has breached
its representations, warranties, covenants and other agreements contained in
this Agreement and failed to cure such breach within 30 days from the date of
the Breaching Party's receipt of the notice specified above, and such
terminating party is not in breach or default in any material respect of its
obligations, representations or warranties under this Agreement; and
(iv) by any party to this Agreement, if the Commercial
Agreement is terminated; provided that the party seeking such termination shall
not then be in breach or default in any material respect of its obligations,
representations or warranties under this Agreement or the Commercial Agreement.
(b) In the event of termination of this Agreement by any or all of
the parties pursuant to Section 11.1(a), prompt written notice thereof shall
forthwith be given to the other parties and this Agreement shall terminate and
the transactions contemplated hereby and by the other Transaction Documents
shall be abandoned without further action by any of the parties hereto, but
subject to and without limiting any of the rights of the parties specified
herein in the
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event a party is in default or breach in any material respect of
its obligations, representations or warranties under this Agreement or any of
the other Transaction Documents.
(c) Notwithstanding any other provision of this Agreement, in the
event that this Agreement is terminated by any party pursuant to Section 11.1(a)
and the Merger Agreement is terminated no party shall be liable to any other
party hereto for any damages, costs or expenses related to its default or breach
in any respect of its obligations, representations or warranties or for any
other reason under this Agreement.
ARTICLE 12
MISCELLANEOUS
12.1 Fees and Expenses. Except as otherwise provided in this Agreement,
each party shall pay its own expenses incurred in connection with the
authorization, preparation, execution, and performance of this Agreement and the
other Transaction Documents, including all fees and expenses of counsel,
accountants, agents, and representatives, and each party shall be responsible
for all fees or commissions payable to any finder, broker, advisor, or similar
Person retained by or on behalf of such party; provided, however, that all
transfer Taxes, recordation Taxes, sales Taxes and document stamps in connection
with the transactions contemplated by this Agreement and all other filing fees,
and other charges levied by any Governmental Authority in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
the same.
12.2 Notices. All notices, demands and requests required or permitted to
be given under the provisions of this Agreement shall be (i) in writing, (ii)
sent by facsimile (with receipt personally confirmed by telephone), delivered by
personal delivery, or sent by commercial delivery service or certified mail,
return receipt requested, (iii) deemed to have been given on the date telecopied
with receipt confirmed, the date of personal delivery, or the date set forth in
the records of the delivery service or on the return receipt, and (iv) addressed
as follows:
To AWS:
AT&T Wireless Services, Inc.
0000 000xx Xxxxxx, XX
Xxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
Telephone:(000) 000-0000
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With a copy (which shall not constitute notice) to:
Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
To AWS PCS:
AT&T Wireless PCS LLC
c/o AT&T Wireless Services, Inc.
0000 000xx Xxxxxx, XX
Xxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
To Cingular:
Cingular Wireless, LLC
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
With a copy (which shall not constitute notice) to:
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Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
To Triton or Triton PCS:
Triton PCS, Inc.
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Chief Executive Officer
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
With a copy (which shall not constitute notice) to:
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
or to any other or additional persons and addresses as the parties may from time
to time designate in a writing delivered in accordance with this Section 12.2.
12.3 Assignment; Benefit and Binding Effect. No party hereto may assign
this Agreement without the prior written consent of each of the other parties
hereto, except for any assignment in connection with a Section 1031 Exchange
pursuant to Section 7.4, which may be made without the consent of any other
party to this Agreement as long as the assigning party remains liable, jointly
and severally, with the assignee for all obligations assigned to the assignee
pursuant thereto, provided, however, Cingular may, without the consent of the
other parties, assign any and all of its rights hereunder to any Affiliate of
Cingular as long as such assignment by Cingular does not delay the consummation
of the transactions contemplated hereby; and provided further that Triton PCS
may make a collateral assignment of its rights hereunder to any of its secured
lenders. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted assigns. The
provisions of this Agreement shall be for the exclusive benefit of the parties
hereto (and their successors and permitted assigns) and shall not be for the
benefit of any other Person.
12.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO
THE CHOICE OF LAW PROVISIONS THEREOF). THE PARTIES HERETO HEREBY IRREVOCABLY
SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE COURT LOCATED
WITHIN THE STATE OF DELAWARE OVER ANY DISPUTE ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY
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AND EACH PARTY HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
DISPUTE OR ANY SUIT, ACTION PROCEEDING RELATED THERETO MAY BE HEARD AND
DETERMINED IN SUCH COURTS. THE PARTIES HEREBY IRREVOCABLY WAIVE, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH THEY MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH DISPUTE BROUGHT IN SUCH COURT
OR ANY DEFENSE OF INCONVENIENT FORUM FOR THE MAINTENANCE OF SUCH DISPUTE. EACH
OF THE PARTIES HERETO AGREES THAT A JUDGMENT IN ANY SUCH DISPUTE MAY BE ENFORCED
IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED
BY LAW.
12.5 Entire Agreement. This Agreement, the other Transaction Documents
and the Schedules and Exhibits hereto and thereto collectively represent the
entire understanding and agreement of the parties with respect to the subject
matter of this Agreement. This Agreement supersedes all prior representations,
warranties, covenants, understandings, agreements, written or oral, discussions,
or negotiations among the parties with respect to the subject matter hereof and
cannot be amended, supplemented or changed, except by an agreement in writing
that makes specific reference to this Agreement and that is signed by each of
the parties hereto. Each party hereby acknowledges and agrees that it has not
relied on any representation, warranty, covenant, understanding, agreement,
written or oral, discussion, or negotiation not expressly contained herein in
entering into this Agreement or the Transaction Documents.
12.6 Counterparts. This Agreement may be signed in counterparts with the
same effect as if the signature on each counterpart were upon the same
instrument.
12.7 Severability. If any provision of this Agreement or the application
thereof to any Person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Agreement and the application of such provision to
other Persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law. Upon such determination that
any term or other provision is invalid or unenforceable, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the greatest
extent possible.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby,
have duly executed this Agreement as of the 7th day of July, 2004.
AT&T WIRELESS SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President, Business
Development, AT&T Wireless
Services, Inc.
AT&T WIRELESS PCS LLC
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President, Business
Development, AT&T Wireless
Services, Inc.
CINGULAR WIRELESS LLC
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President & CEO
TRITON PCS HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman & CEO
TRITON PCS LICENSE COMPANY L.L.C.
By: Triton Management Company, Inc., Its
Manager
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman & CEO
Pursuant to Item 601(b)(2) of Regulation S-K the Schedules and Exhibit hereto
have been omitted but will be provided to the Securities and Exchange Commission
supplementally upon its request.
SCHEDULES
Schedule A AWS Licenses/AWS Triton Licenses
Schedule B Triton Licenses
Schedule C Lafayette License
Schedule 3.3 Required Consents
Schedule 3.4 Claims and Litigation
EXHIBIT
Exhibit 9.2(a)(ii) Assignment
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TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS............................................................................. 1
ARTICLE 2 AGREEMENTS.............................................................................. 4
2.1 Exchange of FCC Licenses................................................................ 4
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE PARTIES........................................... 4
3.1 Organization............................................................................ 4
3.2 Authorization; Enforceability........................................................... 5
3.3 No Violation or Conflict................................................................ 5
3.4 Claims and Litigation................................................................... 5
3.5 Certain Fees............................................................................ 5
ARTICLE 4 REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE FCC LICENSES......................... 5
4.1 Representations and Warranties With Respect to the AWS Licenses......................... 5
4.2 Representations and Warranties with respect to the Triton Licenses and the Lafayette
License................................................................................. 8
ARTICLE 5 COVENANTS............................................................................... 12
5.1 Access to Information................................................................... 12
5.2 FCC Consent............................................................................. 12
5.3 Operations Prior to the Closing......................................................... 13
5.4 Build-Out Obligations................................................................... 14
5.5 Microwave Relocation Costs,............................................................. 15
ARTICLE 6 CONFIDENTIALITY......................................................................... 15
6.1 Confidentiality......................................................................... 15
ARTICLE 7 JOINT COVENANTS......................................................................... 16
7.1 Cooperation............................................................................. 16
7.2 Consents................................................................................ 16
7.3 Public Announcements.................................................................... 16
7.4 Tax Matters............................................................................. 17
ARTICLE 8 CONDITIONS PRECEDENT TO OBLIGATION TO CLOSE............................................. 17
8.1 Conditions Applicable to all of the Parties............................................. 17
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TABLE OF CONTENTS
(continued)
PAGE
8.2 Further Conditions Applicable to Triton and Triton PCS................................. 18
8.3 Further Conditions Applicable to AWS, AWS PCS and Cingular............................. 18
8.4 Waiver of Conditions, Etc.............................................................. 18
ARTICLE 9 CLOSING AND CLOSING DELIVERIES......................................................... 19
9.1 Closing................................................................................ 19
9.2 Deliveries at the Closing.............................................................. 19
ARTICLE 10 INDEMNIFICATION AND OTHER MATTERS...................................................... 20
10.1 Survival............................................................................... 20
10.2 Indemnification by Cingular............................................................ 20
10.3 Indemnification by Triton.............................................................. 21
10.4 Procedure for Indemnification.......................................................... 21
ARTICLE 11 TERMINATION............................................................................ 23
11.1 Termination............................................................................ 23
ARTICLE 12 MISCELLANEOUS.......................................................................... 24
12.1 Fees and Expenses...................................................................... 24
12.2 Notices................................................................................ 24
12.3 Assignment; Benefit and Binding Effect................................................. 26
12.4 GOVERNING LAW.......................................................................... 26
12.5 Entire Agreement....................................................................... 27
12.6 Counterparts........................................................................... 27
12.7 Severability........................................................................... 27
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