Execution Copy
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LICENSE ACQUISITION AGREEMENT
among
DCC PCS, INC.,
ROYAL WIRELESS, L.L.C.,
ARNAGE WIRELESS, L.L.C.
and (with respect to Section 10.12 only)
AT&T WIRELESS SERVICES, INC.
Dated as of November 9, 1999
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS.......................................................2
ARTICLE II PURCHASE AND SALE OF LICENSES; PAYMENT OF
CONSIDERATION.....................................................4
2.1 Purchase and Sale of Licenses.....................................4
2.2 Payment of Consideration..........................................4
2.3 Assumption of Indebtedness........................................4
ARTICLE III CLOSING...........................................................4
3.1 Time and Place of Closing.........................................4
3.2 Closing Actions and Deliveries....................................5
3.3 Payment of Transfer Taxes.........................................5
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF DCC.............................5
4.1 Organization, Power and Authority.................................5
4.2 Consents; No Conflicts............................................6
4.3 Litigation........................................................7
4.4 DCC Licenses......................................................7
4.5 Brokers...........................................................7
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE
COMPANY...........................................................8
5.1 Organization, Power and Authority.................................8
5.2 Consents; No Conflicts............................................8
5.3 Litigation........................................................9
5.4 FCC Compliance....................................................9
5.5 Brokers...........................................................9
ARTICLE VI COVENANTS.........................................................9
6.1 Consummation of Transactions......................................9
6.2 Confidentiality..................................................10
6.3 Certain Covenants................................................11
ARTICLE VII CLOSING CONDITIONS...............................................12
7.1 Conditions to Obligations of All Parties.........................12
7.2 Conditions to Obligations of each Purchaser......................13
7.3 Conditions to the Obligations of DCC.............................13
ARTICLE VIII SURVIVAL AND INDEMNIFICATION.....................................14
8.1 Survival.........................................................14
8.2 Indemnification by DCC...........................................14
8.3 Indemnification by the Purchaser.................................15
8.4 Procedures.......................................................15
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TABLE OF CONTENTS
(continued)
PAGE
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ARTICLE IX TERMINATION......................................................16
9.1 Termination......................................................16
9.2 Effect of Termination............................................17
ARTICLE X MISCELLANEOUS PROVISIONS.........................................17
10.1 Amendment and Modification.......................................17
10.2 Waiver of Compliance; Consents...................................17
10.3 Notices..........................................................17
10.4 Parties in Interest; Assignment..................................19
10.5 Applicable Law...................................................19
10.6 Counterparts.....................................................19
10.7 Interpretation...................................................19
10.8 Entire Agreement.................................................19
10.9 Publicity........................................................19
10.10 Specific Performance.............................................20
10.11 Remedies Cumulative..............................................20
10.12 Guaranty by AWS..................................................20
SCHEDULES
Schedule I -- Non-Oklahoma DCC Licenses
Schedule II -- Oklahoma DCC Licenses
Schedule 4.2 -- DCC Consents
Schedule 4.4 -- DCC FCC Proceedings
Schedule 5.2 -- Purchaser Consents
EXHIBITS
Exhibit A -- Form of Opinion of Corporate Counsel to DCC
Exhibit B -- Form of Opinion of FCC Counsel to DCC
Exhibit C -- Form of Opinion of Counsel to Purchaser
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LICENSE ACQUISITION AGREEMENT
LICENSE ACQUISITION AGREEMENT, dated as of November 9, 1999,
among DCC PCS, INC., an Oklahoma corporation ("DCC"), ROYAL WIRELESS, L.L.C., a
Delaware limited liability company ("ROYAL"), ARNAGE WIRELESS, L.L.C., a
Delaware limited liability company ("ARNAGE"; together with Royal, the
"PURCHASERS"), and (with respect to Section 10.12 only) AT&T WIRELESS SERVICES,
INC., a Delaware corporation ("AWS").
WHEREAS, DCC has been granted the licenses described on
Schedule I (the "NON-OKLAHOMA DCC LICENSES") and Schedule II (the "OKLAHOMA DCC
LICENSES"; together with the Non-Oklahoma DCC Licenses, the "DCC LICENSES"); and
WHEREAS, DCC wishes to sell to each of Royal and Arnage, and
each of Royal and Arnage wishes to acquire from DCC, the Non-Oklahoma DCC
Licenses and the Oklahoma DCC Licenses, respectively, all on the terms and
subject to the conditions herein set forth;
NOW, THEREFORE, in consideration of the promises and the
mutual representations, warranties, covenants, conditions and agreements
hereinafter set forth, the parties agree as follows:
ARTICLE I
DEFINITIONS
As used herein, the following terms have the following
meanings (unless indicated otherwise, all Section and Article references are to
Sections and Articles in this Agreement, and all Schedule and Exhibit references
are to Schedules and Exhibits to this Agreement):
"AFFILIATE" means, 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 that Person. For
purposes of this definition, "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 partnership or other ownership interests, by contract or
otherwise.
"ARNAGE" has the meaning set forth in the opening paragraph.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed.
"CASH CONSIDERATION" means the aggregate of the Purchase Price
and the Reimbursement Amount.
"CLAIM" has the meaning set forth in Section 8.4.
"CLOSING" has the meaning set forth in Section 3.1.
"CLOSING DATE" has the meaning set forth in Section 3.1.
"CONFIDENTIAL INFORMATION" means any and all information
regarding the business, finances, operations, products, services and customers
of the Person specified and its Affiliates, in written or oral form or in any
other medium.
"CONSENTS" means all consents and approvals of Governmental
Authorities or other third parties necessary to authorize, approve or permit the
parties hereto to consummate the Transactions and for the Purchaser to operate
its business after the Closing Date as currently contemplated.
"DCC" has the meaning set forth in the preamble.
"DCC LICENSE TRANSFER" has the meaning set forth in Section
3.2(a).
"DCC LICENSES" has the meaning set forth in the first recital.
"FCC" means the Federal Communications Commission or similar
regulatory authority established in replacement thereof.
"FCC LAW" means the Communications Act of 1934, as amended,
including as amended by the Telecommunications Act of 1996, and the rules,
regulations and policies promulgated thereunder.
"FINAL ORDER" has the meaning set forth in Section 7.1(b).
"GOVERNMENTAL AUTHORITY" means a Federal, state or local
court, legislature, governmental agency (including, without limitation, the
United States Department of Justice), commission or regulatory or administrative
authority or instrumentality.
"HSR ACT" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, and the rules and regulations promulgated thereunder.
"INDEMNIFIED PARTY" has the meaning set forth in Section 8.4.
"INDEMNIFYING PARTY" has the meaning set forth in Section 8.4.
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"LAW" means applicable common law and any statute, ordinance,
code or other law, rule, permit, permit condition, regulation, order, decree,
technical or other standard, requirement or procedure enacted, adopted,
promulgated, applied or followed by any Governmental Authority.
"LICENSE" means a license, permit, certificate of authority,
waiver, approval, certificate of public convenience and necessity, registration
or other authorization, consent or clearance to construct or operate a facility,
including any emissions, discharges or releases therefrom, or to transact an
activity or business, to construct a tower or to use an asset or process, in
each case issued or granted by a Governmental Authority.
"LIEN" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest, right of first refusal or right of others
therein, or encumbrance of any nature whatsoever in respect of such asset.
"LOSSES" has the meaning set forth in Section 8.2.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
the business, financial condition, assets, liabilities or results of operations
or prospects of the Person specified.
"NEW YORK COURTS" has the meaning set forth in Section 10.5.
"NON-OKLAHOMA DCC LICENSES" has the meaning set forth in the
first recital.
"OKLAHOMA DCC LICENSES" has the meaning set forth in the first
recital.
"PERSON" means an individual, corporation, partnership,
limited liability company, association, joint stock company, Governmental
Authority, business trust, unincorporated organization, or other legal entity.
"PURCHASE PRICE" has the meaning set forth in Section 2.2.
"PURCHASERS" has the meaning set forth in the opening
paragraph.
"REIMBURSEMENT AMOUNT" has the meaning set forth in Section
2.3.
"REPRESENTATIVES" has the meaning set forth in Section 6.2(a).
"ROYAL" has the meaning set forth in the opening paragraph.
"SECTION 8.2 INDEMNIFIED PARTY" has the meaning set forth in
Section 8.2.
"SECTION 8.3 INDEMNIFIED PARTY" has the meaning set forth in
Section 8.3.
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"SECURITIES ACT" means the Securities Act of 1933, as amended.
"TRANSACTIONS" means the transactions contemplated by this
Agreement.
ARTICLE II
PURCHASE AND SALE OF LICENSES; PAYMENT OF CONSIDERATION
2.1 PURCHASE AND SALE OF LICENSES. Upon the terms and subject
to the conditions hereof and in reliance upon the representations, warranties
and agreements herein contained, at the Closing, DCC shall sell, transfer,
assign, convey and deliver to each of Royal and Arnage, free and clear of all
Liens other than Liens securing the indebtedness to be assumed by each of Royal
and Arnage pursuant to Section 2.3, and each of Royal and Arnage agrees to
purchase, acquire and accept from DCC, the Non-Oklahoma DCC Licenses and the
Oklahoma DCC Licenses, respectively.
2.2 PAYMENT OF CONSIDERATION. Upon the terms and subject to
the conditions hereof and in reliance upon the representations, warranties and
agreements herein contained, at the Closing, in consideration for the DCC
Licenses, the Purchasers shall pay to DCC the amount of One Million One Hundred
Fourteen Thousand Fifty One and 00/000 Dollars ($1,114,051.00) (the "PURCHASE
PRICE"). The Purchase Price shall be payable by wire transfer of immediately
available funds to an account designated by DCC by written notice given to the
Purchasers at least two Business Days prior to the Closing Date.
2.3 ASSUMPTION OF INDEBTEDNESS. On and as of the Closing Date,
each Purchaser, as applicable, shall (a) accept and assume the indebtedness of
DCC to the United States Department of the Treasury (the "USDT") incurred in
connection with the acquisition of the DCC Licenses and (b) reimburse DCC for
interest and principal actually paid by DCC with respect to such indebtedness
through the Closing Date (the "REIMBURSEMENT AMOUNT"); provided, however,
neither Purchaser will assume any indebtedness, or reimburse DCC for any
payments, incurred or paid in connection with any late payment fees incurred as
a result of DCC not having made any installment payments on a timely basis.
ARTICLE III
CLOSING
3.1 TIME AND PLACE OF CLOSING. Upon the terms and subject to
the conditions hereof, the closing of the Transactions (the "CLOSING") shall
take place at the offices of Xxxxxxxx Xxxxxx & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx at 10:00 a.m. local time on the fifth Business Day following the
date of receipt of the last Consent required by subsections (a) through (c) of
Section 7.1, or at such other place and/or time and/or on such other date as the
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parties may agree or as may be necessary to permit the fulfillment or waiver of
the conditions set forth in Article VII (the "CLOSING DATE").
3.2 CLOSING ACTIONS AND DELIVERIES. Upon the terms and subject
to the satisfaction or waiver by the appropriate party, if applicable, of the
conditions set forth in Article VII, to effect the purchase and sale of the DCC
Licenses, the parties shall on the Closing Date take the following actions:
(a) ASSIGNMENT OF LICENSES. DCC shall execute and deliver to
each of Royal and Arnage one or more instruments of assignment, in form and
substance satisfactory to the FCC and reasonably satisfactory to each Purchaser,
sufficient to assign to each Purchaser the applicable DCC Licenses (such
assignments being herein referred to, together, as the "DCC LICENSE TRANSFER").
(b) ASSUMPTION OF INDEBTEDNESS. Each Purchaser shall execute
and deliver to DCC an instrument of assumption, in form and substance
satisfactory to the FCC and reasonably satisfactory to DCC, in respect of the
indebtedness to be assumed by such Purchaser pursuant to Section 2.3 (including
releases of DCC from all liability therefor).
(c) PAYMENT OF CASH CONSIDERATION. The Purchasers shall
deliver to DCC in immediately available funds the Cash Consideration, such Cash
Consideration to be allocated between the Purchasers on or prior to the Closing
Date.
(d) OTHER DELIVERIES. The parties shall execute and deliver or
cause to be executed and delivered all other documents, instruments, opinions
and certificates contemplated by this Agreement to be delivered at the Closing
or necessary and appropriate in order to consummate the Transactions
contemplated to be consummated on the Closing Date.
3.3 PAYMENT OF TRANSFER TAXES. The applicable Purchaser shall
pay or cause to be paid at the Closing or, if due thereafter, promptly when due,
all gross receipts taxes, gains taxes (including, without limitation, real
property gains tax or other similar taxes), transfer taxes, sales taxes, stamp
taxes, and any other taxes, but excluding any Federal, State or local income
taxes payable in connection with the DCC License Transfer. DCC shall reimburse
the Purchasers for one-half of any such taxes promptly upon notice thereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF DCC
DCC represents and warrants to each Purchaser as follows:
4.1 ORGANIZATION, POWER AND AUTHORITY.
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(a) It is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization and has the
requisite corporate power and authority to own, lease and operate its properties
and to carry on its business as now being conducted.
(b) It has the requisite corporate power and authority to
execute, deliver and perform this Agreement and each other instrument, document,
certificate and agreement required or contemplated to be executed, delivered and
performed by it hereunder and thereunder to which it is or will be a party.
(c) It is duly qualified to do business in each jurisdiction
where the character of its properties owned or held under lease or the nature of
its activities makes such qualification necessary other than any such
jurisdiction in which the failure to be so qualified would not have a Material
Adverse Effect on it or materially adversely affect the Transactions or its
ability to perform its obligations under this Agreement.
(d) The execution and delivery of this Agreement by it and the
consummation of the Transactions by it have been duly and validly authorized by
its Board of Directors and no other proceedings on its part which have not been
taken (including, without limitation, approval of its stockholders, partners or
members) are necessary to authorize this Agreement or to consummate the
Transactions.
(e) This Agreement has been duly executed and delivered by it
and constitutes its valid and binding obligation, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting or relating
to enforcement of creditors' rights generally and may be subject to general
principles of equity.
(f) As of the Closing Date, after giving effect to the
Transactions, it is not in breach of any obligation under this Agreement.
4.2 CONSENTS; NO CONFLICTS. Neither the execution, delivery
and performance by it of this Agreement nor the consummation of the
Transactions will (a) conflict with, or result in a breach or violation of,
any provision of its organizational documents; (b) constitute, with or
without the giving of notice or passage of time or both, a breach, violation
or default, create a Lien, or give rise to any right of termination,
modification, cancellation, prepayment or acceleration, under (i) any Law or
License or (ii) any note, bond, mortgage, indenture, lease, agreement or
other instrument, in each case which is applicable to or binding upon it or
any of its assets; or (c) require any Consent, other than those set forth on
Schedule 4.2 or the approval of its members, managers or similar constituent
bodies, as the case may be (which approvals have been obtained), except, in
the case of clauses (b) and (c), where such breach, violation, default, Lien,
right, or the failure to obtain or give such Consent would not have a
Material Adverse Effect on
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it or materially adversely affect the Transactions or its ability to perform
its obligations under this Agreement.
4.3 LITIGATION. There is no action, proceeding or
investigation pending or, to its knowledge, threatened against it or any of
its properties or assets that would be reasonably expected to have an adverse
effect on its ability to consummate the Transactions or to fulfill its
obligations under this Agreement, or which seeks to prevent or challenge the
Transactions.
4.4 DCC LICENSES. It is the authorized legal holder, free
and clear of any Liens (other than Liens securing the indebtedness to be
assumed by the Purchasers pursuant to Section 2.3), of the DCC Licenses, true
and correct copies of which are attached to Schedule I. The DCC Licenses are,
and on the Closing Date each of the DCC Licenses will be, valid and in full
force and effect. Except as set forth on Schedule 4.4 and for proceedings
affecting the PCS or wireless communications services industry generally,
there is not pending, nor to the knowledge of DCC, threatened against DCC or
against the DCC Licenses, any application, action, petition, objection or
other pleading, or any proceeding with the FCC which questions or contests
the validity of, or seeks the revocation, nonrenewal or suspension of, any of
the DCC Licenses, which seeks the imposition of any modification or amendment
with respect thereto, or which adversely effects the ability of the
Purchasers to employ the DCC Licenses in their respective businesses after
the Closing Date or seeks the payment of a fine, sanction, penalty, damages
or contribution in connection with the use of any DCC License. The DCC
Licenses are not subject to any conditions other than those appearing on the
face of the Licenses themselves and those imposed by FCC Law. It complies in
all material respects with all aspects of FCC Law, including (1) the rules,
regulations and policies pertaining to eligibility to hold Broadband PCS
licenses in general, and the DCC Licenses in particular, including without
limitation, Section 24.709 of the FCC's rules, and (2) the rules, regulations
and policies governing the CMRS spectrum cap and restricting foreign
ownership of radio licenses. It has made all installment payments due in
connection with DCC Licenses to the USDT on a timely basis and it has not
been assessed late payment fees for failing to make installment payments to
the USDT.
4.5 BROKERS. It has not employed any broker, finder or
investment banker or incurred any liability for any brokerage fees,
commissions or finder's fees in connection with the Transactions.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser, with respect to itself, represents and
warrants to DCC as follows:
5.1 ORGANIZATION, POWER AND AUTHORITY.
(a) The Purchaser is a limited liability company, duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its formation and has the requisite limited liability company
power and authority to own, lease and operate its properties and to carry on
its business as now being conducted and proposed to be conducted.
(b) The Purchaser has the requisite limited liability
company power and authority to execute, deliver and perform this Agreement,
and each other instrument, document, certificate and agreement required or
contemplated to be executed, delivered and performed by it hereunder and
thereunder to which it is or will be a party.
(c) The Purchaser is duly qualified to do business in
each jurisdiction where the character of its properties owned or held under
lease or the nature of its activities makes such qualification necessary
other than any such jurisdiction in which the failure to be so qualified
would not have a Material Adverse Effect on the Purchaser or materially
adversely affect the Transactions or its ability to perform its obligations
under this Agreement.
(d) The execution and delivery of this Agreement by
the Purchaser and the consummation of the Transactions by it have been duly
and validly authorized by its members and no other proceedings on its part
which have not been taken (including, without limitation, approval of its
shareholders) are necessary to authorize this Agreement or to consummate the
Transactions.
(e) This Agreement has been duly executed and
delivered by the Purchaser and constitutes its valid and binding obligation,
enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting or relating to enforcement of creditors' rights
generally and may be subject to general principles of equity.
(f) As of the Closing, after giving effect to the
Transactions, the Purchaser is not in breach of any obligation under this
Agreement.
5.2 CONSENTS; NO CONFLICTS. Neither the execution,
delivery and performance by the Purchaser of this Agreement nor the
consummation of the Transactions will (a) conflict with, or result in a
breach or violation of, any provision of its organizational documents; (b)
constitute, with or without the giving of notice or passage of time or both,
a breach, violation
8
or default, create a Lien, or give rise to any right of termination,
modification, cancellation, prepayment or acceleration, under (i) any Law or
License, or (ii) any note, bond, mortgage, indenture, lease, agreement or other
instrument, in each case which is applicable to or binding upon it or any of its
assets; or (c) require any Consent on its part, other than those set forth on
Schedule 5.2 or the approval of its members (which approval has been obtained),
except, in the case of clauses (b) and (c), where such breach, violation,
default, Lien, right, or the failure to obtain or give such Consent would not
have a Material Adverse Effect on it or materially adversely affect the
Transactions, its ability to perform its obligations under this Agreement or the
operation of its business after the Closing Date.
5.3 LITIGATION. There is no action, proceeding or
investigation pending or, to the Purchaser's knowledge, threatened against it
or any of its properties or assets that would have an adverse effect on its
ability to consummate the Transactions or to fulfill its obligations under
this Agreement or which seeks to prevent or challenge the Transactions.
5.4 FCC COMPLIANCE. The Purchaser complies in all
material respects with all aspects of FCC Law, including (1) the rules,
regulations and policies pertaining to eligibility to hold Broadband PCS
licenses in general, and the DCC Licenses in particular, including without
limitation, Section 24.709 of the FCC's rules, and (2) the rules, regulations
and policies governing the CMRS spectrum cap and restricting foreign
ownership of radio licenses.
5.5 BROKERS. The Purchaser has not employed any
broker, finder or investment banker or incurred any liability for any
brokerage fees, commissions or finder's fees in connection with the
Transactions.
ARTICLE VI
COVENANTS
6.1 CONSUMMATION OF TRANSACTIONS. Each party shall use
all commercially reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary, proper or
advisable and consistent with applicable law to carry out all of their
respective obligations under this Agreement and to consummate the
Transactions, which efforts shall include, without limitation, the following:
(a) The parties shall use all commercially reasonable
efforts to cause the Closing to occur and the Transactions to be consummated
in accordance with the terms hereof, and, without limiting the generality of
the foregoing, to obtain all necessary Consents including, without
limitation, the approval of this Agreement and the Transactions by all
Governmental Authorities and agencies, including the FCC, and make all
filings with and to give all notices to third parties which may be necessary
or reasonably required in order for the parties to consummate the
Transactions; PROVIDED that DCC shall not make any filings with the FCC
regarding the DCC Licenses without the prior review and approval of the
Purchasers.
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(b) Each party 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 DCC or either Purchaser or
any other party in connection with the Transactions or otherwise to determine
compliance with applicable FCC Rules.
(c) Upon the request of any other party, each party shall
forthwith execute and deliver, or cause to be executed and delivered, such
further instruments of assignment, transfer, conveyance, endorsement, direction
or authorization and other documents as may reasonably be requested by such
party in order to effectuate the purposes of this Agreement.
Nothing in this Agreement shall be construed to require the
parties to consummate the Closing if any regulatory approval would require that
it (i) divest or hold separate any of its assets existing as of the date hereof
other than as contemplated by this Agreement or (ii) otherwise take or commit to
take any action that limits its freedom of action in any material respect with
respect to any of its businesses, product lines or assets.
6.2 CONFIDENTIALITY.
(a) Each party shall, and shall cause each of its
Affiliates, and its and their respective shareholders, members, managers,
directors, officers, employees and agents (collectively, "REPRESENTATIVES")
to, keep secret and retain in strictest confidence any and all Confidential
Information relating to any other party that it receives in connection with
the negotiation or performance of this Agreement, and shall not disclose such
Confidential Information, and shall cause its Representatives not to disclose
such Confidential Information, to anyone except the receiving party's
Affiliates and Representatives and any other Person that agrees in writing to
keep in confidence all Confidential Information in accordance with the terms
of this Section 6.2. Until the Closing, each party agrees to use Confidential
Information received from another party only (i) to evaluate its interest in
pursuing the Transactions and (ii) to pursue such Transactions, but not for
any other purpose. All Confidential Information furnished pursuant to this
Agreement shall be returned promptly to the party to whom it belongs upon
request by such party.
(b) The obligations set forth in Section 6.2(a) shall
be inoperative with respect to Confidential Information that (i) is or
becomes generally available to the public other than as a result of
disclosure by the receiving party or its Representatives, (ii) was available
to the receiving party on a non-confidential basis prior to its disclosure to
the receiving party, or (iii) becomes available to the receiving party on a
non-confidential basis from a source other than the providing party or its
agents, PROVIDED that such source is not known by the receiving party to be
bound by a confidentiality agreement with the providing party or the
providing party's agents.
(c) To the fullest extent permitted by law, if a party
or any of its Affiliates or Representatives breaches, or threatens to commit
a breach of, this Section 6.2, the party whose
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Confidential Information shall be disclosed, or threatened to be disclosed,
shall have the right and remedy to have this Section 6.2 specifically enforced
by any court having jurisdiction, it being acknowledged and agreed that money
damages will not provide an adequate remedy to such party. Nothing in this
Section 6.2 shall be construed to limit the right of any party to collect money
damages in the event of breach of this Section 6.2.
(d) Anything else in this Agreement notwithstanding,
each party shall have the right to disclose any information, including
Confidential Information of the other party or such other party's Affiliates,
in any filing with any regulatory agency, court or other authority or any
disclosure to a trustee of public debt of a party to the extent that the
disclosing party determines in good faith that it is required by Law,
regulation or the terms of such debt to do so, PROVIDED that any such
disclosure shall be as limited in scope as possible and shall be made only
after giving the other party as much notice as practicable of such required
disclosure and an opportunity to contest such disclosure if possible.
6.3 CERTAIN COVENANTS. From and after the execution
and delivery of this Agreement to and including the Closing Date, DCC shall:
(a) Comply in all material respects with all
applicable Laws, including all such Laws relating to the DCC Licenses or
their use;
(b) Use commercially reasonable efforts to maintain
the DCC Licenses in full force and effect and make all installment payments
required to be made to the USDT in connection with the DCC Licenses on a
timely basis;
(c) Not (i) sell, transfer, assign or dispose of, or
offer to, or enter into any agreement, arrangement or understanding to, sell,
transfer, assign or dispose of any of the DCC Licenses or any interest
therein, or negotiate therefor, or (ii) create, incur or suffer to exist any
Lien of any nature whatsoever relating to any of the DCC Licenses or any
interest therein (other than Liens securing the indebtedness to be assumed by
the Purchaser pursuant to Section 2.3). Without limiting the foregoing, DCC
shall not incur any material obligation or liability, absolute or contingent,
relating to or affecting the DCC Licenses or their use;
(d) Give written notice to the other parties promptly
upon the commencement of, or upon obtaining knowledge of any facts that would
give rise to a threat of, any claim, action or proceeding commenced against
or relating to (i) it, its properties or assets, including the DCC Licenses
or their use, and which could have a Material Adverse Effect on it or
materially adversely affect the Transactions, or (ii) the DCC Licenses or
their use;
(e) Promptly after obtaining knowledge of the
occurrence of, or the impending or threatened occurrence of, any event which
could cause or constitute a material breach of any of its warranties,
representations, covenants or agreements contained in this Agreement, give
notice in writing of such event, or occurrence or impending or threatened
event
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or occurrence, to the other parties and use commercially reasonable efforts to
prevent or to promptly remedy such breach; and
(f) Cause the Purchasers to be advised promptly in
writing of (i) any event, condition or state of facts known to it, which has
had or could have a Material Adverse Effect on it, or materially adversely
affect the DCC Licenses or their use or the Transactions (other than
proceedings affecting the PCS or wireless communications services industry
generally), or (ii) any claim, action or proceeding which seeks to enjoin the
consummation of the Transactions.
ARTICLE VII
CLOSING CONDITIONS
7.1 CONDITIONS TO OBLIGATIONS OF ALL PARTIES. The
obligation of each of the parties to consummate the Transactions contemplated
to occur at the Closing shall be conditioned on the following, unless waived
by each of the parties:
(a) Any applicable waiting period under the HSR Act
shall have expired or been terminated.
(b) The Consent of the FCC to the DCC License Transfer
shall have been obtained pursuant to a Final Order, free of any conditions
materially adverse to either Purchaser or DCC, other than those applicable to
the PCS or wireless communications services industry generally. For the
purposes of this paragraph, "FINAL ORDER" means an action or decision that
has been granted by the FCC as to which (i) no request for a stay or similar
request is pending, no stay is in effect, the action or decision has not been
vacated, reversed, set aside, annulled or suspended and any deadline for
filing such request that may be designated by statute or regulation has
passed, (ii) no petition for rehearing or reconsideration or application for
review is pending and the time for the filing of any such petition or
application has passed, (iii) the FCC does not have the action or decision
under reconsideration on its own motion and the time within which it may
effect such reconsideration has passed and (iv) no appeal is pending
including other administrative or judicial review, or in effect and any
deadline for filing any such appeal that may be designated by statute or rule
has passed.
(c) All Consents by any Governmental Authority (other
than the Consents referred to in paragraphs (a) and (b) above) required to
permit the consummation of the Transactions, the failure to obtain or make
which would be reasonably expected to have a Material Adverse Effect on
either Purchaser or DCC or to materially adversely affect the Transactions or
its ability to perform its obligations under this Agreement, shall have been
obtained or made.
(d) No preliminary or permanent injunction or other
order, decree or ruling issued by a Governmental Authority, nor any statute,
rule, regulation or executive order
12
promulgated or enacted by any Governmental Authority, shall be in effect that
would (i) impose material limitations on the ability of any party to consummate
the Transactions or prohibit such consummation, or (ii) impair in any material
respect the operation of either Purchaser.
7.2 CONDITIONS TO OBLIGATIONS OF EACH PURCHASER. The
obligation of each Purchaser to consummate the Transactions contemplated to
occur at the Closing shall be further conditioned upon the satisfaction or
fulfillment, at or prior to the Closing, of the following conditions by each of
the other parties, unless waived by each Purchaser:
(a) The representations and warranties of DCC
contained herein shall be true and correct in all material respects (except
for representations and warranties that are qualified as to materiality,
which shall be true and correct), in each case when made and at and as of the
Closing (except for representations and warranties made as of a specified
date, which shall be true and correct as of such date) with the same force
and effect as though made at and as of such time.
(b) DCC shall have performed in all material respects
all agreements contained herein required to be performed by it at or before
the Closing.
(c) An officer of DCC shall have delivered to the
Purchasers a certificate, dated the Closing Date, certifying as to the
fulfillment of the conditions set forth in paragraphs (a) and (b) above as to
DCC.
(d) DCC shall have furnished the Purchasers with
opinions of counsel, each dated the Closing Date, in substantially the forms
of Exhibits A and B.
(e) All corporate and other proceedings of DCC in
connection with the DCC License Transfer and the other Transactions, and all
documents and instruments incident thereto, shall be reasonably satisfactory
in form and substance to the Purchasers, and DCC shall have delivered to the
Purchasers such receipts, documents, instruments and certificates, in form
and substance reasonably satisfactory to the Purchasers, which the Purchasers
shall have reasonably requested.
7.3 CONDITIONS TO THE OBLIGATIONS OF DCC. The
obligation of DCC to consummate the Transactions contemplated to occur at the
Closing shall be further conditioned upon the satisfaction or fulfillment, at
or prior to the Closing, of the following conditions, unless waived by DCC:
(a) The representations and warranties of the
Purchasers contained herein shall be true and correct in all material
respects (except for representations and warranties that are qualified as to
materiality, which shall be true and correct), in each case when made and at
and as of the Closing (except for representations and warranties made as of a
specified date,
13
which shall be true and correct as of such date) with the same force and effect
as though made at and as of such time.
(b) The Purchasers shall have performed in all material
respects all agreements contained herein required to be performed by it at or
before the Closing.
(c) An officer of each of the Purchasers shall have delivered
to DCC a certificate, dated the Closing Date, certifying as to the fulfillment
of the conditions set forth in paragraphs (a) and (b) above as to such
Purchaser.
(d) The Purchasers shall have furnished DCC with an opinion of
counsel, dated the Closing Date, in substantially the form of Exhibit C.
(e) All corporate and other proceedings of the Purchasers in
connection with the DCC License Transfer and the other Transactions, and all
documents and instruments incident thereto, shall be reasonably satisfactory in
form and substance to DCC, and the Purchasers shall have delivered to DCC such
receipts, documents, instruments and certificates, in form and substance
reasonably satisfactory to DCC, which DCC shall have reasonably requested.
ARTICLE VIII
SURVIVAL AND INDEMNIFICATION
8.1 SURVIVAL. The representations and warranties made in this
Agreement shall survive the Closing until the second anniversary thereof and
shall thereupon expire together with any right to indemnification in respect
thereof (except to the extent a written notice asserting a claim for breach of
any such representation or warranty and describing such claim in reasonable
detail shall have been given prior to such date to the party which made such
representation or warranty). The covenants and agreements contained herein to be
performed or complied with prior to the Closing shall expire at the Closing. The
covenants and agreements contained in this Agreement to be performed or complied
with after the Closing shall survive the Closing; PROVIDED that the right to
indemnification pursuant to this Article VIII in respect of a breach of a
representation or warranty shall expire on the second anniversary of the Closing
(except to the extent written notice asserting a claim thereunder and describing
such claim in reasonable detail shall have been given prior to such date to the
party from whom such indemnification is sought). After the Closing, the sole and
exclusive remedy of the parties for any breach or inaccuracy of any
representation or warranty contained in this Agreement, or any other claim
(whether or not alleging a breach of this Agreement) that arises out of the
facts and circumstances constituting such breach or inaccuracy, shall be the
indemnity provided in this Article VIII.
8.2 INDEMNIFICATION BY DCC. DCC shall indemnify and hold
harmless each Purchaser and its Affiliates, and the shareholders, members,
managers, officers, employees,
14
agents and/or the legal representatives of any of them (each, a "SECTION 8.2
INDEMNIFIED PARTY"), against all liabilities and expenses (including amounts
paid in satisfaction of judgments, in compromise, as fines and penalties, and as
counsel fees) (collectively, "LOSSES") incurred by him or it in connection with
the investigation, defense, or disposition of any action, suit or other
proceeding in which any Section 8.2 Indemnified Party may be involved or with
which he or it may be threatened that arises out of or results from (a) any
representation or warranty of such indemnifying party contained in this
Agreement being untrue in any material respect as of the date on which it was
made, (b) any of the matters referred to on Schedule 4.2 or 4.4 or (c) any
material default by such indemnifying party or any of its Affiliates in the
performance of their respective obligations under this Agreement, except to the
extent (but only to the extent) any such Losses arise out of or result from the
gross negligence or willful misconduct of such Section 8.2 Indemnified Party or
its Affiliates.
8.3 INDEMNIFICATION BY THE PURCHASER. The Purchasers shall
indemnify and hold harmless DCC and its Affiliates, and the shareholders,
members, managers, officers, employees, agents and/or the legal representatives
of any of them (each, a "SECTION 8.3 INDEMNIFIED PARTY"), against all Losses
incurred by him or it in connection with the investigation, defense, or
disposition of any action, suit or other proceeding in which any Section 8.3
Indemnified Party may be involved or with which he or it may be threatened that
arises out of or results from (a) any representation or warranty of either
Purchaser contained in this Agreement being untrue in any material respect as of
the date on which it was made or (b) any material default by either Purchaser or
any of its Affiliates in the performance of their respective obligations under
this Agreement, except to the extent (but only to the extent) any such Losses
arise out of or result from the gross negligence or willful misconduct of such
Section 8.3 Indemnified Party or its Affiliates.
8.4 PROCEDURES.
(a) The terms of this Section 8.4 shall apply to any claim (a
"CLAIM") for indemnification under the terms of Sections 8.2 or 8.3. The Section
8.2 Indemnified Party or Section 8.3 Indemnified Party Indemnified Party (each,
an "INDEMNIFIED PARTY"), as the case may be, shall give prompt written notice of
such Claim to the indemnifying party (the "INDEMNIFYING PARTY") under the
applicable Section, which party may assume the defense thereof, PROVIDED that
any delay or failure to so notify the Indemnifying Party shall relieve the
Indemnifying Party of its obligations hereunder only to the extent, if at all,
that it is materially prejudiced by reason of such delay or failure. The
Indemnified Party shall have the right to approve any counsel selected by the
Indemnifying Party and to approve the terms of any proposed settlement, such
approval not to be unreasonably delayed or withheld (unless such settlement
provides only, as to the Indemnified Party, the payment of money damages
actually paid by the Indemnifying Party and a complete release of the
Indemnified Party in respect of the claim in question). Notwithstanding any of
the foregoing to the contrary, the provisions of this Article VIII shall not be
construed so as to provide for the indemnification of any Indemnified Party for
any liability to the extent (but only to the extent) that such indemnification
would be in violation of applicable law or that such
15
liability may not be waived, modified or limited under applicable law, but shall
be construed so as to effectuate the provisions of this Article VIII to the
fullest extent permitted by law.
(b) In the event that the Indemnifying Party undertakes the
defense of any Claim, the Indemnifying Party will keep the Indemnified Party
advised as to all material developments in connection with such Claim,
including, but not limited to, promptly furnishing the Indemnified Party with
copies of all material documents filed or served in connection therewith.
(c) In the event that the Indemnifying Party fails to assume
the defense of any Claim within ten business days after receiving written notice
thereof, the Indemnified Party shall have the right, subject to the Indemnifying
Party's right to assume the defense pursuant to the provisions of this Article
VIII, to undertake the defense, compromise or settlement of such Claim for the
account of the Indemnifying Party. Unless and until the Indemnified Party
assumes the defense of any Claim, the Indemnifying Party shall advance to the
Indemnified Party any of its reasonable attorneys' fees and other costs and
expenses incurred in connection with the defense of any such action or
proceeding. Each Indemnified Party shall agree in writing prior to any such
advancement that, in the event he or it receives any such advance, such
Indemnified Party shall reimburse the Indemnifying Party for such fees, costs
and expenses to the extent that it shall be determined that he or it was not
entitled to indemnification under this Article VIII.
(d) In no event shall an Indemnifying Party be required to pay
in connection with any Claim for more than one firm of counsel (and local
counsel) for each of the following groups of Indemnified Parties: (i) DCC, its
Affiliates, and the shareholders, members, managers, officers, employees, agents
and/or the legal representatives of any of them; and (ii) the Purchasers and
their Affiliates, and the shareholders, members, managers, officers, employees,
agents and/or the legal representatives of any of them.
ARTICLE IX
TERMINATION
9.1 TERMINATION. This Agreement may be terminated, and the
Transactions abandoned, without further obligation of any party, except as set
forth herein, at any time prior to the Closing Date:
(a) by mutual written consent of the parties;
(b) by any party by written notice to the other parties, if
the Closing shall not have occurred on or before December 31, 2000, PROVIDED
that the party electing to exercise such right is not otherwise in breach of its
obligations under this Agreement; or
16
(c) by any party by written notice to the other parties, if
the consummation of the Transactions shall be prohibited by a final,
non-appealable order, decree or injunction of a court of competent jurisdiction.
9.2 EFFECT OF TERMINATION.
(a) In the event of a termination of this Agreement, no party
hereto shall have any liability or further obligation to any other party to this
Agreement, except as set forth in paragraph (b) below, and except that nothing
herein will relieve any party from liability for any breach by such party of
this Agreement.
(b) In the event of a termination of this Agreement pursuant
to Section 9.1, all provisions of this Agreement shall terminate, except Section
6.2 and Articles VIII and X.
(c) Whether or not the Closing occurs, all costs and expenses
incurred in connection with this Agreement and the Transactions shall be paid by
the party incurring such expenses, except as otherwise provided in Section 2.4.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 AMENDMENT AND MODIFICATION. This Agreement may be
amended, modified or supplemented only by written agreement of each of the
parties.
10.2 WAIVER OF COMPLIANCE; CONSENTS. Any failure of any of the
parties to comply with any obligation, covenant, agreement or condition herein
may be waived by the party or parties entitled to the benefits thereof only by a
written instrument signed by the party granting such waiver, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. Whenever this Agreement requires or
permits consent by or on behalf of any party hereto, such consent shall be given
in writing in a manner consistent with the requirement for a waiver of
compliance as set forth in this Section 10.2.
10.3 NOTICES. All notices or other communications hereunder
shall be in writing and shall be given (and shall be deemed to have been duly
given upon receipt) by delivery in person, by facsimile transmission, or by
registered or certified mail (return receipt requested), postage prepaid, with
an acknowledgment of receipt signed by the addressee or an authorized
representative thereof, addressed as follows (or to such other address for a
party as shall be specified by like notice; PROVIDED that notice of a change of
address shall be effective only upon receipt thereof):
If to DCC:
17
Xxxxxx Communications Corporation
00000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, President
With a copy to DCC at the same address to:
Attention: Xxx Xxxxxx, Senior Corporate Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With a further copy to:
Xxxxx, Xxxxx & Xxxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
If to either Purchaser:
0000 X. Xxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
With a copy to:
XxXxxxxxx, Will & Xxxxx
00 Xxxxx Xxxxxx, Xxxxx 00
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxx X.X. Xxxxx, P.C.
With a further copy to:
18
AT&T Wireless Services, Inc.
Acquisition Group
0000 000xx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxx
10.4 PARTIES IN INTEREST; ASSIGNMENT. This Agreement is
binding upon and is solely for the benefit of the parties hereto and their
respective permitted successors, legal representatives and permitted assigns. No
party may assign its rights and obligations hereunder without the prior written
consent of the other parties. Notwithstanding the foregoing, either Purchaser
shall have the right to assign its rights under this Agreement to another party;
provided, any such assignment must be in writing and such Purchaser shall not be
relieved of any liability hereunder by virtue of such succession or assignment.
10.5 APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to the conflicts of law principles thereof. The parties hereto hereby
irrevocably and unconditionally consent to submit to the non-exclusive
jurisdiction of the courts of the State of New York and of the United States of
America located in the County of New York, New York (the "NEW YORK COURTS") for
any litigation arising out of or relating to this Agreement and the
Transactions, waive any objection to the laying of venue of any such litigation
in the New York Courts and agrees not to plead or claim in any New York Court
that such litigation brought therein has been brought in an inconvenient forum.
10.6 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
10.7 INTERPRETATION. The article and section headings
contained in this Agreement are for convenience of reference only, are not part
of the agreement of the parties and shall not affect in any way the meaning or
interpretation of this Agreement. All pronouns and any variations thereof shall
be deemed to refer to the masculine, feminine or neuter, singular or plural, as
the identity of the antecedent Person or Person may require.
10.8 ENTIRE AGREEMENT. This Agreement, including the exhibits
and schedules hereto and the certificates and instruments delivered pursuant to
the terms of this Agreement, embodies the entire agreement and understanding of
the parties hereto in respect of the Transactions. There are no restrictions,
promises, representations, warranties, covenants or undertakings, other than
those expressly set forth or referred to herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
Transactions.
10.9 PUBLICITY. So long as this Agreement is in effect, the
parties agree to consult with each other in issuing any press release or
otherwise making any public statement
19
with respect to the Transactions, and no party shall issue any press release or
make any such public statement prior to such consultation, except as may be
required by Law. No press release or other public statement by the parties
hereto shall disclose any of the financial terms of the Transactions without the
prior consent of the other parties, except as may be required by Law. A breach
of the provisions of this Section 10.9 by a party shall not give rise to any
right to terminate this Agreement.
10.10 SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any New York Courts.
10.11 REMEDIES CUMULATIVE. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise or beginning
of the exercise of any thereof by any party shall not preclude the simultaneous
or later exercise of any other such right, power or remedy by such party.
10.12 GUARANTY BY AWS. By its execution hereof in its own
capacity, AWS hereby irrevocably and unconditionally guarantees to DCC the
prompt and full payment and performance of all obligations of each Purchaser
under this Agreement. The obligations under this Section 10.12 shall be binding
on any successor entity or any assignee of AWS, provided that AWS shall not be
relieved of any liability hereunder by virtue of such successions or assignment.
20
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
with respect to Section 10.12 only,
AT&T WIRELESS SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Assistant Secretary
ROYAL WIRELESS, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Signatory
DCC PCS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: CEO
ARNAGE WIRELESS, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Signatory
SCHEDULE I
NON-OKLAHOMA DCC LICENSES
FREQUENCY
MARKET NAME MARKET NO. CALL SIGN BLOCK
----------- ---------- --------- ---------
Kansas City, MO X000 XXXX000 X
Xxxxxxxx, XX X000 XXXX000 X
Xxxxxxxxx-Xxxxxxxx Xxxx, XX X000 XXXX000 X
Xx. Xxxxxx, XX X000 XXXX000 X
Xxxxxx, XX B445 KNLG719 F
Joplin, MO-Miami, OK B220 KNLF909 F
SCHEDULE II
OKLAHOMA DCC LICENSES
FREQUENCY
MARKET NAME MARKET NO. CALL SIGN BLOCK
----------- ---------- --------- ---------
Lawton-Duncan, OK X000 XXXX000 X
Xxxxxxxx Xxxx, XX X000 XXXX000 X
Xxxxx Xxxx, XX B354 KNLG717 F
SCHEDULE 4.2
DCC CONSENTS
The execution, delivery and performance of the Agreement will or may
require the following consents, approvals and reviews:
1. The consent of the Federal Communications Commission.
SCHEDULE 4.4
DCC FCC PROCEEDINGS
None
SCHEDULE 5.2
PURCHASER CONSENTS
The execution, delivery and performance of the Agreement will or may
require the following consents, approvals and reviews:
1. The Federal Communications Commission.
EXHIBIT A
FORM OF OPINION: FCC
1. DCC PCS, Inc. is the duly authorized holder of the FCC authorizations
set forth on Schedules I and II of the License Acquisition Agreement
("FCC Licenses"). Each of the FCC Licenses is in full force and
effect. DCC PCS, Inc. has complied with all material terms and
conditions of the FCC Licenses, and has submitted to the FCC all
required documents, applications, fee and other payments (including
without limitation all installment payments due with respect to each
FCC License) and reports required pursuant to FCC rules and
regulations.
2. There is not pending, nor to the best of our knowledge, threatened
against DCC PCS, Inc. or any of the FCC Licenses, any application,
action, petition, objection or other pleading, or any action,
proceeding or investigation pending at the FCC, which questions or
contests the validity of, or seeks the revocation, non-renewal or
suspension of, any of the FCC Licenses or which seeks modification
of the FCC Licenses. There is not now pending at the FCC any
action, petition or proceeding, nor to the best of our knowledge is
any such matter threatened, against DCC PCS, Inc. which could cause
DCC PCS, Inc. to be ineligible to hold the FCC Licenses.
3. DCC PCS, Inc. is in all material respects in compliance with all
eligibility rules issued by the FCC to hold F Block broadband PCS
licenses, including without limitation, FCC rules on foreign
ownership.
4. To the best of our knowledge, there is no application, action,
petition, objection or other pleading, or any action, proceeding or
investigation pending or threatened against DCC PCS, Inc. or its
assets that would have a material adverse effect on the ability of
DCC PCS, Inc. to consummate the Transaction Documents.
5. The FCC has granted its consent (the "Consent") to the assignment of
each of the FCC Licenses from DCC PCS, Inc. to the applicable
Purchaser and such Consent is a Final Order, as defined in the
License Acquisition Agreement. To the best of our knowledge, there
is no any application, action, petition, objection or other
pleading, or any action, proceeding or investigation pending or
threatened against DCC PCS, Inc. by or before the FCC that seeks
reconsideration, review, appeal, or modification of the Consent.
EXHIBIT B
FORM OF OPINION: CORPORATE
1. DCC PCS, Inc. ("DCC") is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction of
its incorporation with full corporate power and authority to own,
lease and operate its properties and enter into the Transaction
Documents [I.E., the License Acquisition Agreement, Assignment and
Assumption Agreements] to which it is a party and to carry out its
obligations thereunder.
2. The execution, delivery and performance by DCC of the Transaction
Documents to which it is a party and the consummation of the
transactions contemplated thereby have been duly authorized by all
necessary corporate action on the part of DCC.
3. The execution, delivery and performance by DCC of the Transaction
Documents to which it is a party and the consummation of the
transactions contemplated thereby, do not (a) conflict with or
violate the Certificate of Incorporation or Bylaws of DCC, (b)
constitute, with or without the giving of notice or passage of time
or both, a breach, violation or default, create a Lien, or give rise
to any right of termination, modification, cancellation, prepayment
or acceleration, under any note, bond, mortgage, indenture, lease,
agreement or other instrument, in each case which is applicable to
or binding upon DCC or any of its assets, or (c) require any
consents, approvals, authorizations, registrations, deliveries or
filings by DCC under any federal statutory law, rule or regulation
applicable to DCC.
4. Each Transaction Document to which DCC is a party (a) has been duly
executed and delivered by DCC and (b) constitutes the valid and
binding obligation of DCC, enforceable against DCC in accordance
with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally.
5. To the best of our knowledge, there is no action, proceeding or
investigation pending or threatened against DCC or its assets that
would have an adverse effect on the ability of DCC to consummate the
Transaction Documents.
EXHIBIT C
FORM OF OPINION: CORPORATE
1. Each of Royal Wireless, L.L.C. and Arnage Wireless, L.L.C. (together,
the "Purchasers") is a limited liability company duly formed,
validly existing and in good standing under the laws of the
jurisdiction of its formation with full limited liability company
power and authority to own, lease and operate its properties and
enter into the Transaction Documents [I.E., the License Acquisition
Agreement, Assignment and Assumption Agreements] to which it is a
party and to carry out its obligations thereunder.
2. The execution, delivery and performance by each Purchaser of the
Transaction Documents to which it is a party and the consummation of
the transactions contemplated thereby have been duly authorized by
all necessary limited liability company action on the part of such
Purchaser.
3. The execution, delivery and performance by each Purchaser of the
Transaction Documents to which it is a party and the consummation of
the transactions contemplated thereby, do not (a) conflict with or
violate the Certificate of Formation or Limited Liability Company
Agreement of such Purchaser, (b) constitute, with or without the
giving of notice or passage of time or both, a breach, violation or
default, create a Lien, or give rise to any right of termination,
modification, cancellation, prepayment or acceleration, under any
note, bond, mortgage, indenture, lease, agreement or other
instrument, in each case which is applicable to or binding upon such
Purchaser or any of its assets, or (c) require any consents,
approvals, authorizations, registrations, deliveries or filings by
such Purchaser under any federal statutory law, rule or regulation
applicable to such Purchaser.
4. Each Transaction Document to which each Purchaser is a party (a) has
been duly executed and delivered by such Purchaser and (b)
constitutes the valid and binding obligation of such Purchaser,
enforceable against such Purchaser in accordance with its terms,
except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally.
5. To the best of our knowledge, there is no action, proceeding or
investigation pending or threatened against either Purchaser or its
assets that would have an adverse effect on the ability of such
Purchaser to consummate the Transaction Documents.
