Exhibit 10.1
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is entered into as of
_________, 1998, by and among XXXX ATLANTIC - DELAWARE, INC., a Delaware
corporation ("BA-DE"), XXXX ATLANTIC - MARYLAND, INC., a Maryland corporation
("BA-MD"), XXXX ATLANTIC - NEW JERSEY, INC., a New Jersey corporation ("BA-NJ"),
XXXX ATLANTIC - PENNSYLVANIA, INC., a Pennsylvania corporation ("BA-PA"), XXXX
ATLANTIC - VIRGINIA, INC., a Virginia corporation ("BA-VA"), XXXX ATLANTIC -
WASHINGTON, D.C., INC., a New York corporation ("BA-DC"), and XXXX ATLANTIC -
WEST VIRGINIA, INC., a West Virginia corporation ("BA-WV"; BA-DE, BA-MD, BA-NJ,
BA-PA, BA-VA, BA-DC and BA-WV shall each be referred to from time to time as an
"OTC" and collectively as the "OTCs"); XXXX ATLANTIC PAGING, INC., a Delaware
corporation ("BAPCO"; each of the OTCs and BAPCO shall be referred to from time
to time as a "Seller" and collectively as "Sellers"); and BAP ACQUISITION CORP.,
a Delaware corporation ("Buyer"; each of Buyer and Sellers shall be referred to
from time to time as a "Party" and collectively as the "Parties").
RECITALS
This Agreement is entered into in recognition of the following facts and
circumstances:
A. The OTCs hold certain licenses from the Federal Communications
Commission (the "FCC") for the provision of one-way paging service, and own or
lease one-way paging transmission facilities and equipment that they use to
provide such services. BAPCO is in the business of selling and renting one-way
pagers and providing one-way paging services to customers (the "BAPCO Paging
Business") and is a reseller of services provided by various facilities based
paging carriers and related paging service providers (the BAPCO Paging Business
together with such resale business shall be referred to as the "Paging
Business").
B. Buyer wishes to purchase from the Sellers, and Sellers wish to sell,
transfer, assign and convey to Buyer, the OTC Assets (as defined in Section
1.1.1) and substantially all of BAPCO's right, title and interest in and to its
assets and the Paging Business, upon the terms and conditions set forth in this
Agreement.
In consideration of the premises, and of the mutual promises and
agreements herein contained, and intending to be legally bound, the Parties
hereby agree as follows:
ARTICLE I
TRANSFER OF ASSETS
1.1 The Purchased Assets.
1.1.1 OTC Assets. Upon the terms and subject to the conditions
contained herein, at the Closing (as defined in Section 2.1) the OTCs shall
grant, sell, convey, assign, transfer and deliver to Buyer, free and clear of
all Liens (as defined in Section 9.12) except for
Asset Purchase Agreement
Permitted Liens (as defined in Section 9.12), all of the following assets,
properties and rights of the OTCs and no others (collectively, the "OTC
Assets"):
(a) All right, title and interest of the OTCs in and to the
FCC licenses listed on Schedule 1.1.1(a) (the "FCC Licenses"), any
authority derived from the FCC Licenses for fill-in sites associated
therewith, which sites are also listed on Schedule 1.1.1(a), and any
authority held by the OTCs with respect to the 157.89 MHz frequency
associated with the 152.63 MHz frequency;
(b) All right, title and interest of the OTCs as of the
Closing Date in and to (i) the Equipment (as defined in Section 3.1.3),
(ii) the spare parts (the "Spare Parts" and maintenance manuals for the
Equipment, (iii) any and all rights of the OTCs under warranties covering
such Equipment and parts, and (iv) all contracts for maintenance or
servicing of the Equipment (all such contracts are listed on Schedule
1.1.1(b)) (the "Service Contracts");
(c) All rights of the OTCs as of the Closing Date under the
leases, licenses and easements for land, buildings and/or towers on which
Equipment is located listed on Schedule 1.1.1(c) (the "Site Leases");
(d) All rights of BA-VA as of the Closing Date under that
certain Agreement among BA-VA, The Beeper Company, Xxxxxxx Forge -
Waynesboro Telephone Company, Shenandoah Mobile Company and BAPCO executed
May 21, 1990 (the "Beeper Company Contract"); and
(e) All rights of BA-WV as of the Closing Date under its
contracts with customers for the provision of paging services; as of the
date hereof, such customers are: (i) Federal Bureau of Investigation, (ii)
Xxxxxx XxXxxxx, (iii) Xxxxxxx Electric and (iv) Xxxxxxx Construction (the
"WV Customer Contracts").
1.1.2 BAPCO Assets. Upon the terms and subject to the conditions
contained herein, at the Closing BAPCO shall grant, sell, convey, assign,
transfer and deliver to Buyer, free and clear of all Liens except for Permitted
Liens, all of its right, title and interest in and to all of the assets,
properties, rights, contracts and claims used by BAPCO in the Paging Business
other than the Excluded Assets (as defined in Section 1.1.3), as the same shall
exist on the Closing Date (the "BAPCO Assets"; the OTC Assets and the BAPCO
Assets shall be referred to collectively as the "Purchased Assets"), including
without limitation the following:
(a) All rights of BAPCO as lessee under its leases for retail
and office space;
(b) All rights of BAPCO as lessee under its personal property
leases;
(c) All of BAPCO's accounts receivable from customers (and any
causes of action relating to such receivables) excluding "Accounts
Receivable - Affiliates"
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as determined for purposes of BAPCO's regularly prepared financials (the
"Trade Receivables");
(d) All of BAPCO's right, title and interest in and to all
furniture, furnishings, fixtures, computers and other office equipment and
supplies located on its leased premises (the "Fixed Assets"), including,
without limitation, the computer hardware listed on Schedule 1.1.2(d)
hereto;
(e) All rights of BAPCO under any and all oral and written
agreements, arrangements, licenses, leases, instruments, obligations,
customer contracts, vendor contracts and purchase and sale orders,
including without limitation agreements for the resale of wireless
messaging services, agreements for pager rental, service, maintenance or
loss protection, and that certain Software License Agreement dated March
30, 1993 (the "CSI 1993 License"), between BAPCO and Communications
Software, Inc. ("CSI"), as amended by First Amendment to Software License
Agreement dated August 16, 1994 (the "CSI Amendment"; the CSI 1993 License
together with the CSI Amendment shall be referred to as the "CSI
License");
(f) BAPCO's inventory of pagers held by BAPCO for the purpose
of resale or leasing to customers (the "Pager Inventory"), and all pagers
under lease by BAPCO to customers (the "Leased Pagers") or formerly under
lease by BAPCO to customers which have been disconnected but have not yet
been picked up by or returned to BAPCO (the "Disconnected Pagers"; the
Pager Inventory, Leased Pagers and Disconnected Pagers shall be referred
to collectively as the "Pagers");
(g) All books, records and customer lists relating to the
Paging Business, other than those relating to Excluded Assets or Retained
Liabilities (to the extent they so relate) (the "Books and Records");
(h) BAPCO's rights to any security and utility deposits of
BAPCO held by third parties relating to the BAPCO Assets;
(i) BAPCO's rights to its bank account at First National Bank
and to use the post office box number it currently uses through First
National Bank, which collectively currently serve as the lock box accounts
for the Paging Business;
(j) BAPCO's rights to the Telephone Number Inventory (as
defined in Section 3.2.13) and to its office telephone and other utility
services, including the 0-000-XXXX-XXX telephone number; and
(k) All of BAPCO's rights in and to the BAPCO Modifications
(as defined in Section 6.12).
1.1.3 Excluded Assets. Notwithstanding anything to the contrary
herein, BAPCO is not granting, selling, conveying, assigning, transferring or
delivering to Buyer, and Buyer is not purchasing, any of BAPCO's right, title
and interest in and to the following assets
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(the properties, assets and rights excluded by this Section 1.1.3 or otherwise
excluded by the terms of this Agreement constitute the "Excluded Assets"):
(a) All cash on hand and in financial institutions, cash
equivalents, marketable securities and bonds;
(b) "Accounts Receivable - Affiliates" as determined for
purposes of BAPCO's regularly prepared financials;
(c) Any tax credit or tax refund;
(d) All rights of BAPCO to the Xxxx Atlantic and Xxxx Atlantic
Paging names, marks and logos, and all other marks and other intellectual
property owned by Xxxx Atlantic Corporation or any of its Affiliates
(other than BAPCO) where BAPCO has a right to use such xxxx or other
intellectual property only by virtue of being an Affiliate of Xxxx
Atlantic Corporation or such other Affiliate of Xxxx Atlantic Corporation;
(e) Consideration paid to, and the other rights that accrue or
will accrue for the benefit of, BAPCO under this Agreement;
(f) Corporate minute books, stock certificate books, stock
registers, tax returns, books of account and other records having to do
with the corporate organization of BAPCO;
(g) Books and records (i) produced under FCC or state Laws
governing public utility affiliate transactions or (ii) relating to
Cellco's (as defined in Section 5.1.4) overhead costs;
(h) Insurance proceeds payable on account of casualty or
liability claims for which BAPCO may seek recovery under its existing
insurance policies;
(i) Any assets of any BAPCO Benefit Plan (as defined in
Section 3.2.7) or book accruals relating to any BAPCO Benefit Plan;
(j) Any contracts for borrowed money and all contracts and
arrangements with Affiliates of BAPCO including without limitation those
listed on Schedule 1.1.3 (collectively, the "Retained Contracts"); and
(k) The other assets, properties and rights listed on Schedule
1.1.3.
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1.2 Consideration.
1.2.1 Amount of Consideration. In full consideration for the
Purchased Assets and other covenants and agreements made herein, Buyer shall (a)
assume the liabilities and obligations described in Section 1.3, (b) fulfill its
obligation under Section 9.2 to pay certain taxes to the Sellers and (c) pay to
Sellers Twenty Eight Million Dollars ($28,000,000), adjusted as follows (the
"Purchase Price"):
(a) decreased by the amount, if any, by which "Trade Accounts
Payable" of BAPCO (as determined for purposes of BAPCO's regularly
prepared financial statements) exceed Trade Receivables as of the Closing
Date (the "Trade Adjustment");
(b) increased by an amount equal to the total amount of
BAPCO's security and utility deposits held by third parties as of the
Closing Date and related to the BAPCO Assets; and
(c) decreased by an amount equal to the difference between (i)
the aggregate accrued vacation pay benefits of the Transferred Employees
as of the Closing Date and (ii) the aggregate vacation pay benefits
actually used by the Transferred Employees as of the Closing Date.
1.2.2 The Deposit. On the date hereof, Buyer is depositing $500,000
(the "Deposit") into an interest bearing escrow account pursuant to the Deposit
Escrow Agreement among Buyer, BAPCO and the Escrow Agent named therein dated as
of the date hereof (the "Deposit Escrow Agreement"). The Deposit shall be
disbursed to the Sellers at Closing in accordance with Section 1.2.4, or shall
be otherwise disbursed upon termination of this Agreement in accordance with
Section 8.1 and the terms of the Deposit Escrow Agreement.
1.2.3 Estimated and Final Purchase Price.
(a) Using the latest available financial reports prepared in the
ordinary course of the Paging Business, BAPCO shall deliver in writing to
Buyer, no later than five business days prior to the Closing Date, its
good faith estimate of the amount of the Purchase Price (the "Estimated
Purchase Price"), setting forth in reasonable detail BAPCO's calculation
thereof. The Parties shall agree in good faith to the final Purchase Price
prior to the Closing; provided, however, that the failure to so agree
shall not preclude the Closing, and in such event the Buyer shall make
payment at the Closing of the Estimated Purchase Price, and there shall be
a post-Closing adjustment pursuant to subsection (b) below.
(b) If the Parties have not agreed upon the final Purchase Price on
the Closing Date, they shall attempt to reach such agreement within 14
days following the Closing Date. If they fail to so agree, then either
BAPCO or Buyer shall have the right to refer the matter to the New York
office of Deloitte & Touch (the "Accounting Firm") to review BAPCO's
calculation of the Estimated Purchase Price and Buyer's objections
thereto, which Buyer shall set forth in reasonable detail and provide in
writing to Buyer and the
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Accounting Firm. The Accounting Firm shall be directed to review BAPCO's
calculation of the Purchase Price and Buyer's objections thereto and to
notify the Parties in writing of its determination of the Purchase Price
within 45 days after the commencement of its review, and of the bases for
its determination. The Accounting Firm's determination of the Purchase
Price shall be final and binding, absent fraud or manifest error. The
reasonable fees and expenses of the Accounting Firm shall be paid 50% by
BAPCO and 50% by Buyer, unless the adjustment made to the Estimated
Purchase Price is an amount greater than $1,000,000, in which case the
Party (Sellers or Buyer, as applicable) disfavored by the adjustment shall
pay 100% of such fees and expenses. If the Purchase Price as determined by
the Accounting Firm is greater than the Estimated Purchase Price, Buyer
shall pay BAPCO the difference in cash within 14 days after the Parties
are notified of such determination, and if such Purchase Price is less
than the Estimated Purchase Price, BAPCO shall return the difference to
Buyer in cash within such period.
1.2.4 Payment of Purchase Price; Escrow Amount. At the Closing, the
Buyer shall pay the Purchase Price to Sellers as follows:
(a) Buyer shall pay at the Closing the Purchase Price less
$6,050,000 to Sellers by wire transfer of immediately available funds to
one or more accounts designated by Sellers in writing no later than five
business days prior to the Closing Date.
(b) Buyer shall give notice to the Escrow Agent under the
Deposit Escrow Agreement instructing such Escrow Agent that the Closing
has occurred and directing such Escrow Agent to disburse the Deposit,
together with all earnings accrued thereupon, to Sellers.
(c) Buyer shall deposit at the Closing $1,400,000 of the
Purchase Price by wire transfer of immediately available funds into an
interest bearing escrow account pursuant to an escrow agreement dated as
of the Closing Date in substantially the form attached hereto as Exhibit A
(the "Indemnity Escrow Agreement").
(d) Buyer shall deliver at the Closing to holders designated
by Sellers one or more notes in the aggregate principal amount of
$4,150,000, each in substantially the form attached hereto as Exhibit B
(collectively, the "Promissory Note").
1.2.5 Purchase Price Allocation. The Parties agree to allocate the
Purchase Price among the Purchased Assets and the customer non-solicitation
agreement described in Section 6.2 for all purposes (including financial
accounting and tax purposes) in accordance with Schedule 1.2.5.
1.3 Assumption of Liabilities by Buyer. At the Closing, subject to Section
1.7, Buyer shall accept and assume, and thereafter be fully responsible for and
perform, pay or otherwise discharge, in accordance with the respective terms and
subject to the respective conditions thereof, all of the liabilities and
obligations of the OTCs under the Service Contracts, the Site Leases, the Beeper
Company Contract and the WV Customer Contracts and only those liabilities
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and obligations of the OTCs, and the following, and only the following,
liabilities and obligations of BAPCO (collectively, the "Assumed Liabilities"):
(a) All liabilities and obligations of BAPCO, whether fixed or
contingent, known or unknown, or matured or unmatured, arising under
agreements, arrangements, contracts, licenses, leases, instruments,
obligations, customer contracts, vendor contracts and purchase and sale
orders relating to the Paging Business or the Purchased Assets and entered
into prior to the Closing Date, including without limitation agreements
for the resale of wireless messaging services and agreements for pager
rental, service, maintenance or loss protection (other than Retained
Contracts);
(b) All liabilities and obligations of BAPCO reflected on the
Balance Sheet in the line items included in "Total Current Liabilities",
other than the following line items: (i) "Accrued Expenses" (excluding
Inventory Accruals (as defined below), which shall be Assumed
Liabilities), (ii) "Accounts Payable-Affiliates", (iii) "Accrued Payroll
Payables", and (iv) "Accrued Taxes Payable", each as modified or changed
between the Balance Sheet Date (as hereinafter defined) and the Closing
Date in the ordinary course of business without violation of Section 4.3;
"Inventory Accruals" means liabilities and obligations of BAPCO for pagers
in inventory for which BAPCO has not yet processed the related bills as
reflected on BAPCO's regularly prepared schedules to support its trial
balances; and
(c) Certain liabilities with respect to employees, as
specified in Section 6.1;
provided that Assumed Liabilities shall not include obligations or liabilities
that are Retained Liabilities (as defined below).
1.4 Retained Liabilities. Notwithstanding any other provision of this
Agreement, except to the extent expressly assumed by Buyer pursuant to Section
1.3, Buyer shall not assume or otherwise be responsible for or be bound by, and
Sellers shall remain responsible for, any liabilities or obligations of the
respective Sellers of any kind or nature, known or unknown, actual or
contingent, matured or unmatured, liquidated or unliquidated, or otherwise,
arising out of occurrences on or prior to the Closing Date (the "Retained
Liabilities"), which include, without limitation:
(a) Any obligation or liability of any Seller under this
Agreement;
(b) Any liability or obligation of any Seller with respect to
(i) Loan Documents (as defined in Section 3.2.3) and indebtedness for
borrowed money or (ii) any taxes (except as provided in Section 9.2);
(c) Any liability or obligation of BAPCO under the Retained
Contracts;
(d) Any fees payable by BAPCO to Xxxxxxx & Associates, L.P. as
a result of the transactions contemplated by this Agreement;
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Asset Purchase Agreement
(e) The "FSI Advance" as determined for purposes of BAPCO's
regularly prepared financials;
(f) Any liability of any Seller to or in respect of any
employees or former employees of any Seller (except as specifically
provided in Section 6.1), including, without limitation, (i) any liability
under any BAPCO Benefit Plan (as defined in Section 3.2.7) at any time
maintained, contributed to or required to be contributed to, by or with
respect to Sellers, including any liability with respect to the
termination or partial termination of any BAPCO Benefit Plan, or (ii) any
claim of unfair labor practice, or any claim under wage or hour laws, or
any state unemployment compensation or worker's compensation law or
regulation or under any federal or state employment discrimination law or
regulation; and
(g) Any liabilities not incurred in the ordinary and usual
course of business and consistent with past practice since the Balance
Sheet Date (as defined in Section 3.2.10) and not approved by Buyer
pursuant to Section 4.3 hereof.
1.5 FCC Consent to Assignment of Licenses. NOTWITHSTANDING ANYTHING HEREIN
TO THE CONTRARY, THE TERMS AND CONDITIONS OF THIS AGREEMENT ARE SUBJECT TO ONE
OR MORE ORDERS OF THE FCC PRIOR TO CLOSING APPROVING THE TRANSFER OF CONTROL OF
ALL OF THE FCC LICENSES (AS DEFINED IN SECTION 1.1.1(a)) FROM THE OTCS TO BUYER.
1.6 State Public Utility Commission Consent. NOTWITHSTANDING ANYTHING
HEREIN TO THE CONTRARY, THE TERMS AND CONDITIONS OF THIS AGREEMENT ARE SUBJECT
TO ONE OR MORE ORDERS OF ANY STATE PUBLIC UTILITY COMMISSION HAVING JURISDICTION
IN THE MATTERS CONTEMPLATED BY THIS AGREEMENT AUTHORIZING THE ASSIGNMENT OF THE
OTC ASSETS PROVIDED FOR HEREIN AND THE ISSUANCE OF ANY REQUISITE AUTHORITY FOR
THE SELLERS TO CEASE AND THE BUYER TO COMMENCE THE PROVISION OF PAGING SERVICE.
1.7 Third Party Consents.
(a) If Sellers are unable to obtain, prior to the Closing Date, the
consent of any third party listed on Schedule 3.1.7 required to assign all or
any portion of any agreement, arrangement, contract, license, easement, lease,
instrument, obligation, customer contract, warranty, vendor contract or purchase
or sale order ("Contract") to Buyer hereunder, for each such Contract:
(i) At Sellers' option, which Sellers shall communicate in
writing to Buyer at least five days prior to the Closing, this Agreement
will nevertheless constitute and be deemed to be an assignment of and
agreement to assign the applicable Seller's rights under such Contract and
an assumption by Buyer of and agreement by Buyer to assume such Seller's
obligations under such Contract.
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Asset Purchase Agreement
(ii) With respect to any such Contract for which Sellers do
not make the election referred to in clause (i) above, Sellers agree that
for a period of one year following the Closing Date they (a) will
cooperate with Buyer in any reasonable arrangement requested by Buyer in
writing to provide Buyer with the benefits of any such Contract at Buyer's
expense and (b) if requested by Buyer in writing (which request may be
revoked by Buyer in writing prior to the time the relevant consent is
obtained), will continue to use commercially reasonable efforts (which
shall not include the payment of any sums of money) to obtain such
consents, and the Parties agree that notwithstanding anything to the
contrary in this Agreement, this Agreement shall not constitute an
assignment of or agreement to assign any Seller's rights under all or any
portion of such Contract, or an assumption of or agreement to assume any
Seller's obligations under all or any portion of such Contract, until such
time (if ever) as the required consent has been received. Any such failure
to obtain such a consent under any such Contract shall not constitute a
breach of any representation or warranty of any Seller hereunder.
(b) It is understood and agreed that the only third party consents,
authorizations or approvals which are conditions precedent to the obligations of
Buyer to consummate the transactions contemplated by this Agreement are the
consents, authorizations and approvals specified in Section 5.1.3 and the
consent of CSI to the assignment of the CSI License to Buyer.
1.8 BAPCO Reseller Agreements.
(a) BAPCO is a party to each of the agreements listed under the
heading "BAPCO Reseller Agreements" on Schedule 3.2.3 hereto under which third
parties ("Resellers") resell BAPCO paging services (the "BAPCO Reseller
Agreements"). Between the date hereof and the Closing Date, BAPCO shall notify
each of the Resellers in writing (i) of the contemplated transaction with Buyer,
(ii) that effective the Closing Date BAPCO shall assign all of its rights under
the respective BAPCO Reseller Agreement to Buyer and Buyer shall assume BAPCO's
obligations thereunder, (iii) that effective the Closing Date (or such date when
Reseller receives notice from BAPCO or Buyer that the Closing has occurred)
Reseller must cease any use of the Xxxx, Xxxx Atlantic, Xxxx Atlantic Mobile,
Xxxx Atlantic Paging and OTC marks, names, symbols and logos, and (iv) that
should the Closing not occur, the applicable BAPCO Reseller Agreement shall
continue in effect in accordance with its terms.
(b) Should a Reseller not consent to BAPCO's assignment to Buyer of
its BAPCO Reseller Agreement (if consent is required pursuant to the terms of
the applicable BAPCO Reseller Agreement), or assert that its consent to BAPCO's
assignment to Buyer of its BAPCO Reseller Agreement is required under such
Reseller Agreement and that it will not grant such consent without compensation
or otherwise will not cooperate with BAPCO and Buyer, BAPCO and Buyer agree to
use commercially reasonable efforts to cause such Reseller to consent or
otherwise cooperate. For purposes of this Section 1.8 only, "commercially
reasonable efforts" shall include payments by BAPCO, but not by Buyer, to
Resellers of commercially reasonable sums, not to exceed, for each Reseller, the
amount required to be paid by BAPCO to such
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Reseller for paging receivers and subscriber lines as a result of a termination
of the applicable BAPCO Reseller Agreement.
(c) In the event, notwithstanding the foregoing, a Reseller does not
grant such consent or otherwise cooperate and the applicable BAPCO Reseller
Agreement is terminable by BAPCO between the time when it becomes reasonably
evident that such Reseller is not going to grant such consent or cooperate and
the Closing Date, BAPCO shall terminate such BAPCO Reseller Agreement in
accordance with its terms, and upon such termination BAPCO shall purchase the
paging receivers and subscriber lines underlying such BAPCO Reseller Agreement
and any paging receivers and subscriber lines so purchased by BAPCO from
Reseller shall automatically become Purchased Assets. In the event a Reseller
does not grant such consent or otherwise cooperate and the applicable BAPCO
Reseller Agreement is not terminable by BAPCO during such time frame, then:
(A) BAPCO and Buyer agree that, notwithstanding anything
to the contrary in this Agreement, this Agreement shall not constitute an
assignment of or agreement to assign BAPCO's rights under all or any
portion of such BAPCO Reseller Agreement, or an assumption of or agreement
to assume BAPCO's obligations under all or any portion of such BAPCO
Reseller Agreement, until such time (if ever) as the required consent has
been received, and neither any such failure to obtain such a consent under
any such BAPCO Reseller Agreement nor the failure to list such BAPCO
Reseller Agreement on Schedule 3.7 hereto shall constitute a breach of any
representation or warranty of BAPCO hereunder, and
(B) BAPCO either shall remain a party to such BAPCO
Reseller Agreement or shall assign it to Cellco, and Buyer shall sell to
BAPCO or Cellco, as the case may be, at the prices provided for in or
pursuant to such BAPCO Reseller Agreement, and BAPCO or Cellco, as the
case may be, shall have the right to resell and shall resell, Buyer's
paging services to Reseller (without charge to Buyer, provided that Buyer
shall be responsible for providing support to such Reseller to the extent
appropriate under the BAPCO Reseller Agreement) until such time as such
BAPCO Reseller Agreement becomes terminable by BAPCO or Cellco, as the
case may be, at which time (and at any time thereafter that such BAPCO
Reseller Agreement is terminable) BAPCO or Cellco, as the case may be,
shall, at its option, either (x) terminate such BAPCO Reseller Agreement
in accordance with its terms, and upon such termination BAPCO shall
purchase the paging receivers and subscriber lines underlying such BAPCO
Reseller Agreement and any paging receivers and subscriber lines so
purchased by BAPCO from Reseller shall automatically become Purchased
Assets, or (y) continue to resell Buyer's services to Reseller thereunder.
In the event a BAPCO Reseller Agreement is transferred to Buyer after the
Closing Date pursuant to the provisions of this Section 1.8(c), BAPCO or Cellco,
as the case may be, shall be deemed to make the representation contained in
Section 3.2.3 with respect to such BAPCO Reseller Agreement as of the date of
such transfer.
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(d) In the event BAPCO or Cellco acts as a reseller of Buyer's
paging services in accordance with subsection (c) above, neither BAPCO nor
Cellco shall be deemed to be an employee or agent of Buyer; Buyer shall be
responsible for billing such Resellers for post-Closing services and directing
that payment be made to Buyer's account, provided that BAPCO or Cellco, as the
case may be, shall promptly remit to Buyer all amounts which may be paid by
Reseller to BAPCO or Cellco for post-Closing services under such BAPCO Reseller
Agreement; and Buyer shall provide BAPCO or Cellco, as the case may be, with the
services necessary for BAPCO or Cellco to perform its obligations under such
BAPCO Reseller Agreement. In the event a Reseller fails to make payment for the
paging services sold to such Reseller, BAPCO or Cellco, as the case may be,
shall at Buyer's option either (x) take commercially reasonable steps, at
Buyer's expense, to obtain payment therefor, or (y) assign the unpaid
receivables to Buyer so that Buyer may itself undertake collection efforts.
BAPCO or Cellco, as the case may be, shall provide Buyer with a monthly
accounting of the services sold to each Reseller and of any payments received by
BAPCO or Cellco therefor since the last such accounting.
(e) Buyer and BAPCO shall cooperate in good faith to minimize any
amounts to be paid to Resellers by BAPCO under this Section 1.8 and shall keep
the agreements in this Section 1.8 regarding such payments in strict confidence.
ARTICLE II
CLOSING
2.1 Closing. The closing ("Closing") of the transactions contemplated by
this Agreement shall take place at a location mutually convenient to the Parties
as soon as practicable (but not later than one month) after the satisfaction or
waiver of the conditions to the Parties' obligations to proceed with the Closing
as set forth in Sections 5.1.3, 5.2.3 and 5.2.6, provided that the other
conditions to the Parties' obligations to proceed with the Closing as set forth
in Article V shall have been satisfied or waived. The date of the Closing is
sometimes herein referred to as the "Closing Date". All transactions at the
Closing shall be deemed to have taken place simultaneously at the opening of
business on the Closing Date.
2.2 Items to be Delivered at Closing. At the Closing and subject to the
terms and conditions herein set forth:
(a) Sellers shall deliver to Buyer one or more bills of sale and
assignment and other such assignments, endorsements, and other good and
sufficient instruments and documents of conveyance and transfer (collectively,
"Assignment Documents"), in form reasonably satisfactory to Buyer and its
counsel, which shall be effective to vest in Buyer good and valid title (to the
extent the concept of good and valid title applies to the type of Purchased
Asset) to the Purchased Assets;
(b) Buyer shall make the payments, deposits and deliveries referred
to in Section 1.2.4 and Section 9.2 and shall execute and deliver to Sellers one
or more assumption agreements (the "Assumption Agreement"), in form reasonably
satisfactory to Sellers and their
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counsel, whereby Buyer will assume from Sellers the due payment, performance and
discharge of the Assumed Liabilities;
(c) Each of the Parties hereto shall also deliver to the others such
items as are described in Article V.
2.3 Further Assurances. Each of the Parties will cooperate with the others
and execute and deliver to the other Parties such other instruments and
documents and take such other actions as may be reasonably requested from time
to time by another Party hereto as necessary to carry out, evidence and confirm
the intended purposes of this Agreement, including Sellers executing and
delivering such other instruments of conveyance and transfer and taking such
other actions as Buyer may reasonably request in order to vest in Buyer good and
valid title to the Purchased Assets (to the extent the concept of good and valid
title applies to the type of Purchased Asset).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Sellers. Each Seller, severally and
not jointly, represents and warrants to Buyer as follows:
3.1.1 Corporate Existence. Such Seller is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation. Such Seller is authorized to do business, and is
in good standing, in each state in which the ownership of Purchased Assets or
conduct of the Paging Business by it requires it to be so authorized. Such
Seller has the requisite power and authority to own the Purchased Assets it is
selling hereunder.
3.1.2 Enforceable Obligations. This Agreement has been duly executed
and delivered by such Seller and, assuming due execution and delivery thereof by
Buyer, constitutes the legal, valid and binding obligation of such Seller
enforceable against such Seller in accordance with its terms, except to the
extent that enforcement may be limited by bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting the rights of creditors
generally. The Ancillary Documents (as defined in Section 9.8) to be executed by
such Seller will be executed and delivered by duly authorized officers of such
Seller and, when so executed and delivered, will constitute the legal, valid and
binding obligations of such Seller, enforceable against such Seller in
accordance with their respective terms, except to the extent that enforcement
may be limited by bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting the rights of creditors generally. The execution,
delivery and performance by such Seller of this Agreement and all Ancillary
Documents to which such Seller is a party have been, or as of the Closing will
have been, duly authorized by all requisite corporate action.
3.1.3 Equipment and Telecommunications Transmission Services.
(a) Such OTC has good and valid title to the paging
transmission equipment set forth on Schedule 3.1.3(a), which has heretofore been
provided to the Buyer, and
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identified on such schedule as being located in its state (all such equipment
described on Schedule 3.1.3(a) shall be referred to herein as the "Equipment"),
and to the Spare Parts for such Equipment, free and clear of all Liens except
for Permitted Liens. The Equipment identified on Schedule 3.1.3(a) as being
located in such OTC's state constitutes all of the terminals, transmitters, link
receivers and antennas used by such OTC to provide one-way paging service in
support of the BAPCO Paging Business.
(b) Such OTC represents that, to its knowledge and as of May
28, 1998, Schedule 3.1.3(b), which has heretofore been provided to the Buyer,
sets forth a list of all of the telecommunications transmission services it
provides in support of the BAPCO Paging Business, including services to (i)
interconnect such OTC's local telephone network to paging terminals, (ii)
connect paging terminals to transmitters; (iii) connect transmitters to
monitoring locations for the performance of status monitoring, control and
troubleshooting functions; and (iv) program numbers into the paging terminals
and perform remote monitoring, adjustments, and troubleshooting with respect to
the paging terminals. No more than 15 days prior to the Closing Date, the OTCs
shall provide Buyer with an updated version of Schedule 3.1.3(b). BAPCO
represents and such OTC represents to its knowledge that the only
telecommunications transmission services provided in support of the BAPCO Paging
Business other than by the OTCs are pursuant to arrangements between BAPCO and
certain independent local exchange carriers and interexchange carriers
specifically listed as such on Schedule 3.2.3.
3.1.4 FCC Licenses. Such Seller has heretofore provided Buyer with
or made available to Buyer true, complete and correct copies of all of the FCC
Licenses held by such Seller and has heretofore made available to Buyer copies
of all associated license applications (including any filings made with the FCC
to memorialize the sites of any fill-in transmitter as defined and provided for
under the rules of the FCC but which may not be shown on the FCC Licenses, and
any authority provided under the FCC rules for fill-in transmitters that have
not been memorialized by any filing with the FCC, but which are listed on
Schedule 1.1.1(a) ("Fill-in Transmitters")), files and correspondence with the
FCC. The FCC Licenses identified on Schedule 1.1.1(a) as being held by such
Seller are all of the FCC Licenses held by such Seller relating to 152.63 MHz,
152.84 MHz or 158.10 MHz Radio Common Carrier frequencies or the Paging
Business. Except as set forth on Schedule 3.1.5, the FCC Licenses held by such
Seller are in full force and effect, are validly held by such Seller, and are
free and clear of Liens, conditions or other restrictions of such nature as
would materially limit the operation of such Seller's antenna and transmitter
sites covered by the FCC Licenses (including sites for any Fill-in Transmitters)
held by such Seller (all such sites for all Sellers collectively, the
"Transmitter Facilities"). Each Seller, severally and not jointly, represents
and warrants to Buyer that, except for the FCC Licenses, there are no permits,
licenses or other authorizations currently held by it, or required by Law to be
held by it, with respect to its ownership of its Purchased Assets or operation
of the Paging Business, except where its failure to hold such a permit, license
or other authorization would not reasonably be expected to materially and
adversely affect the Sellers' ownership of the Purchased Assets or conduct of
the Paging Business. The sites of such Seller set forth in the FCC Licenses and
any associated sites for Fill-in Transmitters listed therewith in Schedule
1.1.1(a) have been timely constructed and placed into operation with service to
subscribers by such Seller in accordance with the rules of the FCC. Except as
set forth on Schedule 3.1.5, there are no applications, petitions to deny,
complaints or proceedings pending before the FCC or relating to
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the operations of or the provision of service from such Seller's Transmitter
Facilities that are likely to preclude such Seller from entering this
transaction or consummating the transactions contemplated hereby or that are
likely to materially adversely affect the validity of the FCC Licenses held by
such Seller.
3.1.5 Litigation. Except as set forth on Schedule 3.1.5, there is no
litigation, including without limitation any arbitration, investigation or other
proceeding of or before any court, arbitrator or governmental or regulatory
official, body or authority (collectively, "Proceedings"), but excluding any
Proceedings before the FCC other than formal complaints challenging such
Seller's right to hold any of its FCC Licenses, pending or, to such Seller's
knowledge, threatened against such Seller with respect to the Purchased Assets,
the Paging Business or the transactions contemplated by this Agreement. Such
Seller is not a party to or subject to the provisions of any judgment, order,
writ, injunction, decree or award of any court, arbitrator or governmental or
regulatory official, body or authority (collectively, "Orders") which would
materially and adversely affect Buyer's ownership, use or enjoyment of the
Purchased Assets or the transactions contemplated by this Agreement.
3.1.6 Compliance with Law. Such Seller's Purchased Assets and
ownership and operation of its Transmitter Facilities are, and BAPCO's Paging
Business and operation of the Paging Business are, in compliance with all
applicable federal, state and local laws, statutes, ordinances, regulations and
administrative orders ("Laws") relating to the Purchased Assets and the Paging
Business (including without limitation the rules of the FCC relating to
regulatory fees, universal service fund obligations, telecommunications relay
service, antenna support structure lighting and marking, tower registration,
timely construction of facilities and the provision of service to subscribers,
and the timely filing of applications and reports), except to the extent failure
to comply with any such Laws would not materially and adversely affect Buyer's
ownership, use or enjoyment of the Purchased Assets or the Paging Business. Such
Seller has not received any written notice or otherwise been advised that such
Seller's ownership of its Purchased Assets, operation of its Transmitter
Facilities or operation of the Paging Business is not in compliance with any
such Laws.
3.1.7 Approvals, Notices and Consents. Except as set forth on
Schedule 3.1.7, no consent or approval of, other action by, or notice to, any
governmental body or agency or other third party is required in connection with
the execution and delivery by such Seller of this Agreement or the consummation
by such Seller of any of the transactions contemplated hereby.
3.1.8 Restrictive Documents; Non-Contravention. Except as set forth
on Schedule 3.1.8, such Seller is not subject to or a party to any charter,
by-law, mortgage, Lien, lease, permit, agreement, contract, instrument, law,
rule, ordinance, regulation, order, judgment or decree, or any other restriction
of any kind or character, which would prevent consummation of the transactions
contemplated by this Agreement. Except as set forth on Schedule 3.1.8, the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby will not (a) with or without the giving of
notice or the passage of time or both, violate any provision of, conflict with,
result in the breach of, constitute a default under, or result in the creation
or imposition of any lien under (i) the charter documents or by-laws of such
Seller; (ii) any order, writ, judgment, injunction, award, decree, license,
permit or other
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Asset Purchase Agreement
authorization of any court, arbitrator or governmental or regulatory body
against, or to the knowledge of such Seller binding upon, such Seller or the
Purchased Assets being sold by such Seller; or (iii) any contract, indenture,
instrument, agreement, mortgage or lease which is a Purchased Asset and to which
such Seller is a party; or (b) result in a violation by such Seller of any Law.
3.1.9 Site Leases; Beeper Company and WV Customer Contracts.
(a) Except as described in subsection (b) below, each Site
Lease to which such Seller is a party is valid, binding and enforceable in
accordance with its terms and is in full force and effect; all rents due to date
under each such lease have been paid; in each case, the lessee has been in
peaceable possession since the commencement of the original term of such lease
and is not in default thereunder and no waiver or postponement of the lessee's
obligations thereunder has been granted by the lessor; and there exists no
default or event of default by the lessee or, to the knowledge of such Seller,
by any other party, or occurrence, condition or act which, with or without the
giving of notice, the lapse of time or the happening of any further event or
condition, would become a default or event of default under such lease. Such
Seller has not received any notice of special assessment and, to the knowledge
of such Seller, there is no threatened special assessment with respect to such
Seller's Site Leases.
(b) Schedule 3.1.9 sets forth those Site Leases which are
subject to the terms of the Prime Leases or Master Leases referred to therein.
The Seller party to each such Site Lease has not received notice of and has no
knowledge of any termination of any Prime Lease or Master Lease referred to in
such Site Lease.
(c) BA-VA represents that the Beeper Company Contract is
valid, binding and enforceable in accordance with its terms and is in full force
and effect, and that there are no existing material violations or defaults by
BA-VA, or, to the knowledge of BA-VA, by any other party thereto and no event,
act or omission has occurred which (with or without notice or the passage of
time or both) would result in a material violation or default under the Beeper
Company Contract. All of BA-VA's rights to and under the Beeper Company Contract
are fully and freely assignable by BA-VA to Buyer, and no consent of any party
to such Contract is required for the execution, delivery or performance of this
Agreement or the consummation of the transactions contemplated hereby. All
amounts, if any, due and payable by BA-VA under the Beeper Company Contract have
been paid.
(d) BA-WV represents that the WV Customer Contracts are valid,
binding and enforceable in accordance with their respective terms and are in
full force and effect, and that there are no existing material violations or
defaults by BA-WV, or, to the knowledge of BA-WV, by any other party thereto and
no event, act or omission has occurred which (with or without notice or the
passage of time or both) would result in a material violation or default under
the WV Customer Contracts. All of BA-WV's rights to and under the WV Customer
Contracts are fully and freely assignable by BA-WV to Buyer, and no consent of
any party to any such Contract is required for the execution, delivery or
performance of this Agreement or the consummation of the transactions
contemplated hereby. All amounts, if any, due and payable by BA-WV under the WV
Customer Contracts have been paid.
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Asset Purchase Agreement
3.1.10 Environmental Matters. With respect to any real property
leased by such Seller pursuant to a Site Lease or Retail and Office Lease (any
such leased real property is referred to hereinafter as "Real Property"), to the
best of such Seller's knowledge after reasonable inquiry, there has been no use,
generation, manufacture, production, storage, release, discharge or disposal of
any Hazardous Material (as defined below) on, under or about the Real Property
or transportation by such Seller or its employees, agents or representatives of
any Hazardous Materials to or from the Real Property, for which such Seller or
any subsequent holders of such Seller's interest in the Real Property have any
material liability under the laws governing such Hazardous Materials. For
purposes of this Section 3.1.10, "Hazardous Materials" means any hazardous
material, hazardous substance, regulated substance, pollutant or contaminant,
hazardous waste, hazardous chemical or hazardous material, as those terms are
defined in the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, or any other so-called "Superfund" or "Superlien" law,
the Resource Conservation and Recovery Act of 1976, as amended, The Hazardous
Materials Transportation Act, any regulations promulgated under the foregoing,
or by the U.S. Environmental Protection Agency or any applicable state
environmental agency.
3.1.11 Books and Records. All accounts, books, ledgers and official
and other records material to the Paging Business or the Purchased Assets
maintained by or on behalf of such Seller have been properly and accurately kept
in all material respects, and there are no material inaccuracies or
discrepancies of any kind contained or reflected therein.
3.1.12 Xxxx-Xxxxx-Xxxxxx. The "ultimate parent entity" of such
Seller, as such term is defined in ss.801.1 of the rules promulgated under the
Xxxxxxx Act, 15 U.S.C. ss.18a (1976) (the "H-S-R Act"), is Xxxx Atlantic
Corporation, a Delaware corporation.
3.1.13 Customers. Each OTC, severally and not jointly, represents
and warrants to Buyer that other than the WV Customer Contracts, such OTC is not
a party to any Contract for provision to any customer of paging services using
any of the FCC Licenses.
3.1.14 Disclosure. No representation or warranty by such Seller in
this Agreement or any Ancillary Document contains or will contain any untrue
statement of material fact or omits or will omit to state any material fact
necessary, in light of the circumstances under which it was made, in order to
make the statements herein or therein not misleading.
3.2 Representations and Warranties of BAPCO. BAPCO additionally represents
and warrants as follows:
3.2.1 Title to Tangible Properties. BAPCO has good and valid title
to the Fixed Assets (except those leased by BAPCO under personal property
leases) and the Pagers free and clear of all Liens except for Permitted Liens.
3.2.2 Corporate Power and Authority. BAPCO has the requisite
corporate power and authority to own its properties and to conduct its business
as currently conducted.
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Asset Purchase Agreement
The Certificate of Incorporation and By-Laws of BAPCO heretofore made available
to Buyer are complete and correct copies of such instruments as presently in
effect.
3.2.3 Contracts and Commitments. Schedule 3.2.3 contains an accurate
and complete list of all Defined Contracts (as defined below) to which BAPCO is
a party or under which BAPCO is obligated as of the date of this Agreement,
whether written or oral (if oral, Schedule 3.2.3 contains a summary of material
terms), which relate to the Paging Business or any BAPCO Asset. No more than 15
days prior to the Closing Date, BAPCO shall provide Buyer with an updated
version of Schedule 3.2.3. For purposes of this Section, "Defined Contract"
means any (a) agreement, arrangement, commitment, contract, lease, license,
instrument or other obligation which obligates, or which, in accordance with its
express terms if certain conditions or circumstances were to occur, would
obligate, BAPCO to pay any Person more than $15,000 in cash or property or which
is material to the Paging Business or the BAPCO Assets and is not included in
another category below; (b) partnership, joint venture or licensing agreement
(other than for the licensing of computer software); (c) loan agreement or
commitment, credit agreement, indenture, promissory note, guarantee or other
agreement in respect of indebtedness (collectively, "Loan Documents"), other
than any such agreement or arrangement between BAPCO and any other direct or
indirect subsidiary of Xxxx Atlantic Corporation; (d) inter-carrier agreement,
agreement with a reseller, agreement with an agent, interLATA circuit contract,
or interconnection agreement with any interexchange carrier; (e) employment
agreement or agreement with a consultant; (f) agreement not to compete in a line
of business; (g) confidentiality agreement entered into outside the ordinary
course of business; (h) license for the use of the computer software or (i)
collective bargaining or union contracts or agreements; provided that Defined
Contracts does not include any of the Retained Contracts. Each Defined Contract
included in the BAPCO Assets is valid, binding and enforceable in accordance
with its terms and is in full force and effect, and there are no existing
material violations or defaults by BAPCO or, to the knowledge of BAPCO, by any
other party thereto and no event, act or omission has occurred which (with or
without notice or the passage of time or both) would result in a material
violation or default under any Contract included in the BAPCO Assets. Except as
set forth in Schedule 3.1.7 hereto, all of BAPCO's rights to and under the
Contracts included in the BAPCO Assets are fully and freely assignable by BAPCO
to Buyer, and no consent of any party to the Contracts included in the BAPCO
Assets is required for the execution, delivery or performance of this Agreement
or the consummation of the transactions contemplated hereby. All amounts due and
payable by BAPCO under each Contract included in the BAPCO Assets have been
paid.
3.2.4 Trade Accounts Receivable. The Trade Receivables of the Paging
Business have arisen in the ordinary course of business for goods or services
delivered or rendered, are not to BAPCO's knowledge subject to any valid
defenses, set-offs, counterclaims or barter arrangements, and at least 65% of
such receivables (by dollar amount) are current or sixty days or less past due.
3.2.5 Customer Contracts. Copies of the forms of customer contracts
entered by BAPCO since 1989 for the provision by BAPCO of paging service, pager
rental and pager maintenance, were previously delivered to Buyer by BAPCO;
substantially all of BAPCO's customers are parties to written contracts in the
form of one or more of such forms, except for the customers whose contracts are
listed on Schedule 3.2.5.
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3.2.6 Employees. Schedule 3.2.6 is an accurate and complete list
showing the full names, job titles and job locations of all employees of BAPCO
as of the date of this Agreement. BAPCO has made or will at or prior to Closing
make available to Buyer the personnel files of each of the BAPCO Eligibles (as
defined in Section 6.1).
3.2.7 Employee Benefit Plans.
(a) BAPCO maintains, contributes to or established the
"employee benefit plans," within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended, and the rules and
regulations thereunder ("ERISA"), including but not limited to bonus, stock
option, stock purchase, restricted stock, incentive, profit-sharing, pension,
retirement, deferred compensation, severance, medical, dental, life, disability,
accident, accrued leave, vacation, sick pay, sick leave, supplemental retirement
and unemployment benefit plans, programs, arrangements, commitments or practices
(whether or not insured) set forth in Schedule 3.2.7. Each such employee benefit
plan is referred to herein as a "BAPCO Benefit Plan" and collectively as the
"BAPCO Benefit Plans". Each BAPCO Benefit Plan that is intended to be qualified
within the meaning of section 401(a) of the Internal Revenue Code of 1986, as
amended (the "Code") and, to the extent applicable, section 401(k) of the Code,
has been determined by the Internal Revenue Service to be so qualified. The
BAPCO Benefit Plans have been maintained, operated and administered in all
material respects in accordance with their terms and applicable law, including
without limitation ERISA and the Code. No complete or partial termination of any
BAPCO Benefit Plan has occurred or is expected to occur prior to or on the
Closing Date or as a result of this transaction. No event has occurred, or is
reasonably expected to occur as a result of the transactions contemplated by
this Agreement, with respect to or pursuant to any BAPCO Benefit Plan which will
result in any material liability to Buyer.
(b) No BAPCO Benefit Plan is an "employee pension benefit
plan," within the meaning of Section 3(2) of ERISA, subject to Section 412 of
the Code or Section 302 of Title IV of ERISA. BAPCO has never contributed or had
any obligation to contribute to any multiemployer pension plan within the
meaning of ERISA and the Code.
(c) BAPCO does not maintain any BAPCO Benefit Plan which is a
"group health plan" (as such term is defined in ERISA or the Code) that has not
been administered or operated in all material respects in compliance with the
applicable requirements of Section 601 of ERISA and Section 4980B(f) of the
Code.
3.2.8 Pagers. Schedule 3.2.8 sets forth, as of May 31, 1998, (i) the
approximate number of new Pagers in Pager Inventory, (ii) the approximate number
of Leased Pagers and (iii) the approximate number of used Pagers not in service;
and identifies the approximate number of each general type of Pager (i.e.,
digital, alphanumeric, etc.) in each category. Since such date, the number of
Pagers in Pager Inventory has not changed except in the ordinary course of
business. No more than 15 days prior to the Closing Date, BAPCO shall provide
Buyer with an updated version of Schedule 3.2.8.
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Asset Purchase Agreement
3.2.9 Retail and Office Leases. Schedule 3.2.9 sets forth a list of
all of BAPCO's real property leases (the "Retail and Office Leases"), copies of
which have previously been delivered to or made available to Buyer. Each Retail
and Office Lease is valid, binding and enforceable in accordance with its terms
and is in full force and effect; all rents due to date under each such lease
have been paid; in each case, BAPCO has been in peaceable possession since the
commencement of the original term of such lease and is not in default thereunder
and no waiver or postponement of BAPCO's obligations thereunder has been granted
by the lessor; and there exists no default or event of default by the lessee or,
to the knowledge of BAPCO, by any other party, or occurrence, condition or act
which, with or without the giving of notice, the lapse of time or the happening
of any further event or condition, would become a default or event of default
under such lease. The buildings and leasehold improvements leased under the
Retail and Office Leases are in good operating condition (normal wear and tear
excepted), are not in need of any known major repairs and are suitable for their
current uses. BAPCO has not received any notice of special assessment and, to
BAPCO's knowledge, there is no threatened special assessment relating to the
premises leased by it under the Retail and Offices Leases or any portion
thereof.
3.2.10 Financial Statements; No Material Adverse Effect. Attached as
Schedule 3.2.10(a) are the unaudited balance sheets of BAPCO as at December 31,
1997 and March 31, 1998 (the "Balance Sheets") and the related unaudited
statements of income for the twelve months ended December 31, 1997 and the three
months ended March 31, 1998 (the "Income Statements"). The Balance Sheets fairly
present the financial position of BAPCO as at the respective dates thereof, and
the Income Statements fairly present the results of operations of BAPCO for the
periods indicated, all in accordance with generally accepted accounting
principles consistently applied throughout the periods involved and subject in
the case of interim financial statements to normal year-end adjustments. From
March 31, 1998 (the "Balance Sheet Date") through the date of this Agreement,
BAPCO has conducted the Paging Business in the ordinary and usual course
consistent with past practices, and there has not been any material adverse
change in the financial condition, assets or results of operations of BAPCO
during such period. On the date of this Agreement, BAPCO has no knowledge of any
fact or circumstance which, individually or in the aggregate, is likely to have
a "material adverse effect" on the Purchased Assets or the Paging Business. For
purposes of this Section 3.2.10, "material adverse effect" shall not include the
effects of facts, circumstances or changes described in Schedule 3.2.10(b), and
knowledge of BAPCO means the actual knowledge of Xxxxxx X. Xxxxxxxx (Director
and President), Xxxxxxxxxxx X. Xxxxxxxx (Secretary and Treasurer), Xxxxx X.
Xxxxxx (Director) and Xxxxxx X. Xxxxxx (Director), with no obligation to
undertake any investigation. Such individuals are all of the officers and
directors of BAPCO as of the date of this Agreement.
3.2.11 No Undisclosed Liabilities. As at the respective dates of the
Balance Sheets, BAPCO had no liabilities or obligations of any nature (absolute,
accrued, contingent or otherwise) not otherwise disclosed herein which relate to
the Paging Business or the BAPCO Assets which are not reflected or reserved
against in the Balance Sheets and which, in accordance with generally accepted
accounting principles, consistently applied, should have been shown or reflected
in the Balance Sheets.
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Asset Purchase Agreement
3.2.12 Taxes. BAPCO has filed all federal, state, local, foreign and
other tax returns and reports required to be filed in connection with the BAPCO
Assets or the Paging Business, and has paid all taxes and other assessments due,
if any.
3.2.13 Telephone Number Inventory. Schedule 3.2.13 hereto, which has
heretofore been provided to the Buyer, sets forth, as of February 24, 1998, (i)
the telephone numbers that have been assigned to or associated with individual
paging units used by customers as part of the BAPCO Paging Business, and (ii)
the telephone numbers available for assignment to or association with individual
paging units as part of the BAPCO Paging Business. All such telephone numbers
have been activated in the paging control terminals included in the Equipment.
No more than 15 days prior to the Closing Date, BAPCO shall provide Buyer with
an updated version of Schedule 3.2.13.
3.2.14 Billing Software. The Billing Software (as defined in Section
6.12), as configured and delivered to Buyer at the Closing, shall be in the same
condition in which BAPCO used it in its operations of the Paging Business
immediately prior to the Closing. BAPCO has good and valid title to the BAPCO
Modifications. The BAPCO Modifications were developed "in house" in accordance
with the terms and conditions of the CSI Amendment. EXCEPT AS EXPRESSLY SET
FORTH IN THIS SECTION 3.2.14, BAPCO MAKES NO REPRESENTATIONS OR WARRANTIES OF
ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE BILLING SOFTWARE AND HEREBY
DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
AND THE BILLING SOFTWARE SHALL BE PROVIDED TO BUYER ON AN "AS IS" BASIS.
3.2.15 Billing System. The computer hardware set forth on Schedule
1.1.2(d) and the Billing Software collectively comprise the billing system
utilized by BAPCO to perform billing services.
3.3 Representations and Warranties of Buyer. Buyer represents and warrants
to Sellers as follows:
3.3.1 Corporate Existence. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
3.3.2 Enforceable Obligations. This Agreement has been duly executed
and delivered by Buyer and, assuming due execution and delivery thereof by
Sellers, constitutes the legal, valid and binding obligation of Buyer
enforceable against it in accordance with its terms, except to the extent that
enforcement may be limited by bankruptcy, reorganization, insolvency, moratorium
or other similar laws affecting the rights of creditors generally. The Ancillary
Documents to be executed and delivered by duly authorized officers of Buyer and,
when so executed and delivered, will constitute the legal, valid and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms,
except to the extent that enforcement may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting the
rights of creditors generally. The execution, delivery and performance by Buyer
of this
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Agreement and all Ancillary Documents to which Buyer is a party have been duly
authorized by all requisite corporate action.
3.3.3 Litigation. No Proceeding is pending or, to Buyer's knowledge,
threatened against Buyer, with respect to the transactions contemplated by this
Agreement, and to Buyer's knowledge, no investigation that might result in any
such Proceeding is pending or threatened. Buyer is not a party to or subject to
the provisions of any Order which would materially and adversely affect the
transactions contemplated by this Agreement.
3.3.4 Approvals, Notices and Consents. Except for the approvals
described in Sections 1.5 and 1.6, no consent or approval of, other action by,
or notice to, any governmental body or agency or other third party is required
in connection with the execution and delivery by Buyer of this Agreement or the
consummation by Buyer of any of the transactions contemplated hereby.
3.3.5 Restrictive Documents; Non-Contravention. Buyer is not subject
to or a party to any charter, by-law, mortgage, Lien, lease, permit, agreement,
contract, instrument, law, rule, ordinance, regulation, order, judgment or
decree, or any other restriction of any kind or character, which would prevent
consummation of the transactions contemplated by this Agreement. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby will not (a) with or without the giving of
notice or the passage of time or both, violate any provision of, conflict with,
result in the breach of, constitute a default under, or result in the creation
or imposition of any lien under (i) the charter documents or by-laws of Buyer;
(ii) any order, writ, judgment, injunction, award, decree, license, permit or
other authorization of any court, arbitrator or governmental or regulatory body
against or, to the knowledge of Buyer, binding upon Buyer; or (iii) any
contract, indenture, instrument, agreement, mortgage or lease to which Buyer is
a party; or (b) result in a violation by Buyer of any Law.
3.3.6 Financing; Capitalization. Buyer has heretofore received
written commitments from responsible financial institutions to fulfill its
obligations to pay the Purchase Price hereunder (which commitments are subject
to the negotiation, preparation and execution of definitive financing
agreements, it being understood that the obligations of such financial
institutions under such agreements will be subject to the conditions to be set
forth therein) and has heretofore delivered true, complete and correct copies of
such commitments to Sellers. Prior to the Closing, Shareholders of Buyer shall
have contributed at least $5,000,000 in cash to Buyer, and the shareholders
equity of Buyer on the Closing Date shall be at least $5,000,000 (less
reasonable amounts expended for transactional costs related to this
transaction).
3.3.7 Xxxx-Xxxxx-Xxxxxx. The "total assets" and "annual net sales"
(as such terms are used in subsection (a)(2) of Section 7A of the H-S-R Act) of
Buyer's "ultimate parent entity and all entities which it controls directly or
indirectly" (as such phrase is used in ss.801.1 of the rules promulgated under
the H-S-R Act) are each less than $10,000,000.
3.4 Warranties Exclusive. Except for the express representations and
warranties made by Sellers in this Article III, Sellers make no representations
or warranties, express or implied, concerning the Purchased Assets or the Paging
Business. Buyer acknowledges that it has been
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Asset Purchase Agreement
given a full opportunity to examine the Purchased Assets, the Books and Records
and the Paging Business (except that prior to the date hereof BAPCO has not
permitted the Buyer to interview the Eligible Employees) and, except as set
forth in this Agreement (including the representations and warranties in this
Article III and the indemnification provisions relating thereto), is relying on
its own independent investigation and analysis of the Purchased Assets, the
Books and Records and the Paging Business.
ARTICLE IV
AGREEMENTS PENDING CLOSING
4.1 Cooperation. Upon the terms and subject to the conditions hereof, each
of the Parties agrees to use its 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 to consummate the transactions contemplated by
this Agreement, including without limitation obtaining all necessary waivers,
consents and approvals and making all necessary filings with the FCC and state
public utility commissions ("PUCs") in a timely manner. BA-NJ also shall apply
to the New Jersey Board of Public Utilities for a waiver of the advertising
requirements of N.J.A.C. Section 14:1-5.6(b) with respect to the consummation of
the transactions contemplated herein, and shall use commercially reasonable
efforts to obtain such a waiver. Any such filings with the PUCs shall be made
within 45 days after the date hereof. Within fifteen days after the date hereof,
Sellers and Buyer, cooperating in good faith, shall have completed and have
provided to each other for review their respective portions of the applications
requesting FCC consent to the proposed assignment of the FCC Licenses to Buyer.
Within the earlier of twenty days after the date hereof or five business days
after the date the Board of Directors of Xxxx Atlantic Corporation approves the
transactions contemplated hereby, Sellers and Buyer shall file such applications
with the FCC.
4.2 Closing Conditions; Representations and Warranties. Each of the
Parties covenants and agrees that pending the Closing and except as otherwise
specified in this Agreement it shall use commercially reasonable efforts to
ensure that the Closing conditions contained in Article V are met and that its
representations and warranties remain true in all material respects and shall
promptly inform the other Parties if it discovers that any such Closing
condition cannot be met or that the representations and warranties were either
materially incorrect when made or have become materially incorrect. Buyer agrees
to notify Sellers immediately if it receives any oral or written notification
from its lenders that its financing commitments are in jeopardy.
4.3 Operation of the Transmitter Facilities and Paging Business Before
Closing. Between the date of this Agreement and the Closing Date:
(a) The OTCs shall, except as otherwise approved by Buyer in
writing:
(i) continue to operate the Transmitter Facilities and
the Equipment in the ordinary and usual course of business and consistent
with past practice (except for any changes contemplated by this Agreement)
and in compliance with applicable Law;
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Asset Purchase Agreement
(ii) file with the FCC all documents required to be
filed in connection with the FCC Licenses and the operation of the
Transmitter Facilities and the Equipment, including without limitation all
renewal applications in connection with the FCC Licenses, in a timely
manner and in the ordinary course, as provided in the FCC rules;
(iii) prior to the timely filing of a renewal
application for any FCC License, cause all Transmitter Facilities and
Equipment covered by such FCC License to be in compliance with the FCC
rules pertaining to human exposure to radio frequency emissions; and
(iv) satisfy and obtain the release of any Liens on the
OTC Assets (except for Permitted Liens) and not create or suffer to exist
any Liens (except for Permitted Liens) on any of the OTC Assets, except as
approved by Buyer in writing; and
(b) BAPCO shall, except as otherwise approved by Buyer in
writing:
(i) conduct the Paging Business in the ordinary and
usual course and consistent with past practice except for any changes
contemplated by this Agreement;
(ii) not enter into any Contract which obligates, or
which, in accordance with its express terms if certain conditions or
circumstances were to occur, would obligate, BAPCO to pay any Person more
than $15,000 in cash or property or which is material to the Paging
Business, except for (i) Contracts which terminate or are terminable prior
to the Closing Date (and which shall impose no liability or obligations on
Buyer) and (ii) purchase orders made in the ordinary and usual course of
business consistent with past practices;
(iii) not enter into any employment agreement (other
than with Retained Employees) or agreement with a consultant, unless such
agreement terminates or is terminable prior to the Closing Date and, if so
terminated, would not impose any liability or obligation on Buyer, and
BAPCO gives Buyer written notice of such agreement prior to the Closing
and terminates the agreement on or before the Closing Date if so directed
by Buyer;
(iv) not enter into any Contract which requires the
consent of a third party to the transfer of such Contract to Buyer;
(v) not create, assume or incur indebtedness other than
in the ordinary course of business with respect to the BAPCO Assets;
(vi) satisfy and obtain the release of any Liens on the
BAPCO Assets (except for Permitted Liens) and not create or suffer to
exist any Liens (except for Permitted Liens) on any of the BAPCO Assets,
except as approved by Buyer in writing;
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Asset Purchase Agreement
(vii) not grant or otherwise commit to make any increase
in the compensation of the employees of BAPCO (other than Retained
Employees) except in the ordinary and usual course of business, it being
understood and agreed that raises and bonuses are given to BAPCO employees
each spring and BAPCO sales representatives who meet certain sales
thresholds are given raises and/or promotions, all in the ordinary and
usual course of business; and
(viii) use commercially reasonable efforts to maintain
in its employment, or otherwise maintain any arrangements existing on the
date hereof with, employees or other personnel employed or otherwise
retained by BAPCO in connection with and for the operation of the Paging
Business which employees or personnel BAPCO, in its judgment and in good
faith, deems to be reasonably necessary for the operation of the Paging
Business, provided that this clause creates no requirement to pay
additional compensation or give promotions outside of the ordinary course
or business.
(c) Neither BAPCO nor the OTCs shall make any capital
improvements outside of the ordinary course of business with respect to
the BAPCO Paging Business or the Purchased Assets without the prior
written approval of Buyer.
(d) Buyer shall not, directly or indirectly, control,
supervise or direct, or attempt to control, supervise or direct, the operations
of the Transmitter Facilities, and such operations shall be solely the
responsibility of the OTCs and, subject to the provisions of this Section 4.3,
shall be in their complete discretion.
(e) Buyer agrees to approve or disapprove in writing any
action that requires Buyer's consent under Section 4.3(a), 4.3(b) or 4.3(c)
within five business days following written notice to Buyer from Sellers
requesting such approval, and Buyer agrees not to unreasonably withhold any such
consent. If Buyer fails to approve or disapprove of any such action in writing
within five business days after presentation by Sellers, then Buyer shall be
deemed to have approved of such action.
4.4 No Solicitation. Except in connection with obtaining required
consents, authorizations and approvals of, and giving required notices to,
governmental authorities and other third parties in connection with the
transactions contemplated hereby, and subject to Section 4.1, each Seller hereby
agrees that prior to the Closing or termination of this Agreement, it shall
neither directly nor indirectly solicit, hold discussions or negotiations with
or otherwise cooperate with any Person other than Buyer and its representatives
concerning any sale of BAPCO, the Purchased Assets or the Paging Business,
provided that the Closing is concluded by the date which is the nine month
anniversary of the date applications are filed with the FCC as contemplated in
Section 4.1 (the "Termination Date").
4.5 Insurance of Property. Until the Closing Date, Sellers shall continue
existing insurance coverage or substantial equivalents thereof on the Purchased
Assets and shall not allow or permit to be done any act by which such insurance
policies may be impaired, terminated or canceled.
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Asset Purchase Agreement
4.6 Risk of Loss. From the date hereof through the Closing Date, if any
Purchased Asset is destroyed or damaged by fire or any other cause, other than
use, wear or loss in the ordinary course of business, the applicable Seller
shall give written notice to Buyer as soon as practicable (but in no event later
than five calendar days) after discovery by Seller of such damage or
destruction. Such Seller shall have the option of (a) delivering such Purchased
Asset at the Closing to Buyer in its destroyed or damaged condition in which
event the Purchase Price shall be reduced by the amount allocated to such
Purchased Assets (to the extent of such damage or destruction), as mutually
agreed by the Parties, (b) excluding such Purchased Assets from this Agreement,
in which event the Purchase Price shall be reduced by the amount allocated to
such Purchased Assets, as mutually agreed by the Parties, or (c) replacing or
repairing such Purchased Assets (any replacement shall be deemed a Purchased
Asset) at such Seller's expense. No such loss shall result in the breach of any
representation or warranty hereunder.
4.7 Access; Financial Statements.
(a) Sellers shall give Buyer's officers, employees, counsel,
accountants and other representatives access to and the right to inspect, during
normal business hours and on reasonable notice, the Purchased Assets and records
pertaining thereto, and shall permit them to consult with and interview Sellers'
officers, employees, accountants, and agents for the purpose of making such
investigation of the Purchased Assets as Buyer shall reasonably desire to make,
provided that such inspection and investigation activities shall not
unreasonably interfere with Sellers' business operations. Buyer shall give
Sellers' officers, employees, counsel, accountants and other representatives
access to all documentation and information related to Buyer's financial
condition and ability to pay the Promissory Notes as reasonably requested by
Sellers, and shall permit them to consult with Buyer's officers, employees,
accountants, agents and lenders for the purpose of assessing Buyer's financial
condition and ability to pay the Promissory Notes.
(b) Prior to the Closing Date, BAPCO shall deliver to Buyer its
regularly prepared unaudited balance sheets and the related unaudited statements
of income within 15 days following the last day of the applicable reporting
period.
4.8 Xxxx Atlantic Corporation Authorization. Sellers shall present this
transaction for approval by the requisite Xxxx Atlantic Corporation authorizing
entity as soon as practicable following the date hereof and not later than July
28, 1998.
ARTICLE V
CONDITIONS PRECEDENT TO THE CLOSING
5.1 Conditions Precedent to Buyer's Obligations. The obligations of Buyer
to consummate the transactions contemplated by this Agreement are subject to the
fulfillment or satisfaction, prior to or at the Closing, of each of the
following conditions precedent unless waived in writing by Buyer:
5.1.1 Representations, Warranties and Covenants. The representations
and warranties of Sellers contained in this Agreement, in any schedule or
exhibit hereto or in any
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Asset Purchase Agreement
instrument, document or certificate delivered by Sellers to Buyer pursuant to
the provisions hereof, and which do not speak as of a specific date, shall be
true in all material respects on the Closing Date with the same effect as though
such representations and warranties were made as of such date, except for
changes or exceptions (a) required to reflect the operation of the Paging
Business after the date hereof in the ordinary course consistent with past
practices or (b) contemplated by this Agreement, and Sellers shall have
performed in all material respects all covenants and agreements required by this
Agreement to be performed by them on or prior to the Closing Date. Each Seller
shall have delivered to Buyer a certificate dated as of the Closing Date and
executed by an officer of such Seller, certifying that the conditions specified
in this Section have been fulfilled with respect to such Seller.
5.1.2 No Litigation. No Proceedings by any governmental or
regulatory official, body or authority or other Person shall have been
instituted or threatened for the purpose of enjoining or preventing, or which
question the validity or legality of, any of the transactions contemplated
hereby.
5.1.3 Consents and Approvals. The governmental approvals described
in Sections 1.5 and 1.6 (it being agreed by the Parties that as of the date
hereof such approvals are limited to those set forth on Schedules 3.1.7 and
3.3.4; it being further agreed by the Parties that Schedules 3.1.7 and 3.3.4
shall be updated to reflect any changes in applicable Law after the date
hereof), the consent of CSI to the assignment of the CSI License to Buyer (which
will be substantially in the form attached hereto as Exhibit M), and any notices
required in connection with the transfer of the Lease dated April 8, 1996
between 1719 Route 10, L.L.C. and BAPCO to Buyer, shall have been obtained or
given, as the case may be, and shall be effective. Unless waived by Buyer, the
approvals of the FCC and any authorizations required from the PUCs shall have
become Final Orders (i.e., no longer subject to reconsideration, appeal or
review, whether judicial or administrative).
5.1.4 Transaction Documents. At the Closing, the appropriate
Seller(s) shall execute and deliver to Buyer each of the following documents:
(a) the Indemnity Escrow Agreement, (b) an official services agreement in
substantially the form attached hereto as Exhibit C (the "Official Services
Agreement"), (c) a real estate license agreement in substantially the form
attached hereto as Exhibit D (the "Real Estate License Agreement"), (d) a
maintenance agreement in substantially the form attached hereto as Exhibit E
(the "Maintenance Agreement"), (e) the Assignment Documents and (f) a software
license agreement in substantially the form attached hereto as Exhibit F (the
"BAPCO Modification License"). In addition, at the Closing, Cellco Partnership,
a partnership d/b/a Xxxx Atlantic Mobile ("Cellco") shall execute and deliver to
Buyer each of the following documents: (i) a reseller agreement in substantially
the form attached hereto as Exhibit G (the "Reseller Agreement"), (ii) a
professional services agreement in substantially the form attached hereto as
Exhibit H (the "Professional Services Agreement"), (iii) a billing services
agreement in substantially the form attached hereto as Exhibit N (the "Billing
Services Agreement"), (iv) a guarantee in substantially the form attached hereto
as Exhibit I, guarantying BAPCO's indemnity obligations under Article VII hereof
(the "Guarantee")and (v) a xxxx of sale transferring ownership of BAPCO's Banyan
server to Buyer for One Thousand Dollars ($1,000) on an "as is" basis.
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Asset Purchase Agreement
5.1.5 Legal Opinion. At the Closing, Sellers shall deliver to Buyer
an opinion of Xxxxx X. Xxxx, Esq., or another in-house counsel of Xxxx Atlantic
Corporation or a subsidiary thereof, dated as of the Closing Date, substantially
in the form attached hereto as Exhibit J.
5.2 Conditions Precedent to Sellers' Obligations. The obligations of
Sellers to consummate the transactions contemplated by this Agreement are
subject to the fulfillment or satisfaction, prior to or at the Closing, of each
of the following conditions precedent unless waived in writing by Sellers:
5.2.1 Representations, Warranties and Covenants. The representations
and warranties of Buyer contained in this Agreement, in any schedule or exhibit
hereto or in any instrument, document or certificate delivered by Buyer to
Sellers pursuant to the provisions hereof, shall be true in all material
respects on the Closing Date with the same effect as though such representations
and warranties were made as of such date, except for changes contemplated by
this Agreement, and Buyer shall have performed in all material respects all
covenants and agreements required by this Agreement to be performed by it on or
prior to the Closing Date. Sellers shall have received a certificate from Buyer
dated as of the Closing Date and executed by the President or Chief Financial
Officer of Buyer, certifying that the conditions specified in this Section have
been fulfilled.
5.2.2 No Litigation. No Proceedings by any governmental or
regulatory official, body or authority or other Person shall have been
instituted or threatened for the purpose of enjoining or preventing, or which
question the validity or legality of, any of the transactions contemplated
hereby.
5.2.3 Consents and Approvals. The governmental approvals described
in Sections 1.5 and 1.6 (it being agreed by the Parties that as of the date
hereof such approvals are limited to those set forth on Schedules 3.1.7 and
3.3.4; it being further agreed by the Parties that Schedules 3.1.7 and 3.3.4
shall be updated to reflect any changes in applicable Law after the date hereof)
shall have been obtained and shall be effective.
5.2.4 Transaction Documents. At the Closing, Buyer shall execute and
deliver to the appropriate Seller(s) (or Affiliate(s) of Sellers) each of the
following documents: (a) the Indemnity Escrow Agreement, (b) the Promissory Note
and security documents referred to therein, (c) the Reseller Agreement, (d) the
Official Services Agreement, (e) the Real Estate License Agreement, (f) the
Maintenance Agreement, (g) the Assumption Agreement, (h) the BAPCO Modification
License, (i) the Professional Services Agreement and (j) the Billing Services
Agreement, and Buyer shall deliver to Cellco, by check or wire transfer, One
Thousand Dollars ($1,000) for BAPCO's Banyan server.
5.2.5 Limited Subordination. As security for the payment by Buyer of
the Promissory Note, Buyer shall have granted to the holder of each Promissory
Note a perfected security interest in all of Buyer's assets, which security
interest shall be subordinate only to security interest(s) of the bank(s)
financing Buyer's acquisition of the Purchased Assets and the Paging Business
securing a maximum of $21,800,000 in senior debt.
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Asset Purchase Agreement
5.2.6 Board Approval. The Board of Directors of Xxxx Atlantic
Corporation or the appropriate authorizing entity shall have approved the
consummation of the transactions contemplated hereby.
5.2.7 Legal Opinion. At the Closing, Buyer shall deliver to Sellers
an opinion of Xxxxxxxx Xxxxx Xxxxxxxx Xxxx & Ballon LLP dated as of the Closing
Date, substantially in the form attached hereto as Exhibit K.
ARTICLE VI
OTHER AGREEMENTS
6.1 Employees.
(a) Effective as of the Closing Date, Buyer shall offer employment
to at least 90% of the employees of BAPCO as of the Closing Date (excluding the
employees set forth on Schedule 6.1(a) (the "Retained Employees"), to whom Buyer
shall not make offers of employment) (the BAPCO employees as of the date hereof
excluding the Retained Employees are referred to herein as the "BAPCO Eligibles"
and are set forth on Schedule 6.1(b) with relevant details of their employment
with BAPCO, including compensation and net credited service; BAPCO shall provide
Buyer with an updated version of Schedule 6.1(b) within five days prior to the
Closing Date), on terms and conditions (including position, location, total cash
compensation and benefits) substantially comparable to each BAPCO Eligible's
terms and conditions of employment immediately prior to the Closing, and subject
to and in accordance with the other terms of this Section 6.1(a). BAPCO shall
cooperate with and use reasonable efforts to assist Buyer in its efforts to
secure reasonably satisfactory employment arrangements with the BAPCO Eligibles;
provided that Cellco shall have the right to hire any BAPCO Eligible who applies
for a job with Cellco through Cellco's normal job application processes, who
does not receive an offer of employment from Buyer, who declines an offer of
employment by Buyer or who is terminated by Buyer after the Closing Date;
further provided that, notwithstanding the foregoing, Cellco shall not hire more
than ten percent (excluding any BAPCO Eligible hired by Cellco who did not
receive an offer of employment from Buyer or who was terminated by Buyer after
the Closing Date) of the BAPCO Eligibles during the period commencing on the
date hereof and ending one year following the Closing Date. BAPCO shall have the
right to notify its employees of the foregoing, other than the fact that
employees who are terminated by Buyer for cause can be hired by Cellco. Each
BAPCO Eligible who accepts such an offer of employment from Buyer (each, a
"Transferred Employee") shall become an employee of Buyer as of the Closing Date
and shall participate in the following employee benefit plans to be provided by
Buyer (the "Buyer Benefit Plans"), provision of which plans shall satisfy
Buyer's obligation to provide substantially comparable benefits: (i) a medical
benefit plan and dental benefit plan on terms substantially comparable to
BAPCO's medical and dental benefit plans, except, however, the Buyer's medical
benefit plan need not offer mental health/substance abuse benefits; (ii) a
reimbursement account plan on terms substantially comparable to BAPCO's
reimbursement account plan; (iii) a disability benefit plan including both short
term disability benefits and basic long term disability benefits on terms
substantially comparable to BAPCO's disability benefit plan; (iv) a life
insurance benefit plan on terms substantially comparable to BAPCO's life
insurance benefit plan; (v) a tuition
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Asset Purchase Agreement
assistance plan on terms substantially comparable to BAPCO's tuition
reimbursement plan, except, however, the Buyer's tuition reimbursement plan need
not provide company prepaid tuition benefits; (vi) a separation or severance pay
plan which shall be established on terms substantially comparable to BAPCO's
separation or severance pay plan; and (vii) a savings and investment plan with
terms substantially comparable to BAPCO's savings plan, including a required
employer match contribution. Buyer shall maintain the aforementioned Buyer
Benefit Plans for at least an eighteen month period commencing with the Closing
Date, and each Transferred Employee, as long as such employee remains in the
employ of Buyer, shall remain eligible to participate in such Buyer Benefit
Plans during such eighteen month period. For purposes of eligibility to
participate in and vesting under the Buyer Benefit Plans, but not for purposes
of benefit accrual under any defined benefit pension plan or defined
contribution retirement plan (other than the savings and investment plan
described in clause (vii) above), each Transferred Employee shall receive full
credit for all prior service properly credited under the BAPCO Benefit Plans as
set forth on Schedule 6.1(b). Each Transferred Employee shall also receive
credit under the relevant Buyer Benefit Plans for co-pays, deductibles and other
similar payments made under the corresponding BAPCO Benefit Plan through the
Closing Date. Each Transferred Employee's participation in the BAPCO Benefit
Plans shall terminate as of the Closing Date (except to the extent of benefits
accrued under such Plans on or prior to the Closing Date but not yet paid out).
Except as provided in Section 6.1(c) below, BAPCO shall pay all obligations to
Transferred Employees, and fulfill all other relevant obligations to Transferred
Employees, in accordance with the terms of the relevant BAPCO Benefit Plan and
applicable law. Except to the extent inconsistent with the above, any and all
decisions to offer employment or not to offer employment to BAPCO Eligibles
shall be made by Buyer in its sole discretion, but in compliance with all
applicable law, and BAPCO shall have no responsibility for such decisions. Buyer
shall have no liability with respect to the Retained Employees or with respect
to any BAPCO Eligible who does not become a Transferred Employee, except to the
extent that such BAPCO Eligible fails to become a Transferred Employee under
circumstances in which Buyer has breached its obligations under this Agreement
or otherwise violated applicable law.
(b) BAPCO shall retain all liability under the BAPCO Benefit Plans
and, unless Buyer adopts such Plans, Buyer shall have no liability under any
BAPCO Benefit Plan. Buyer shall bear all liability under the Buyer Benefit Plans
and, unless BAPCO adopts such Plans, BAPCO shall have no liability under any
Buyer Benefit Plan.
(c) Notwithstanding the above, BAPCO shall not pay out to
Transferred Employees vacation pay benefits earned but not yet used as of the
Closing Date. Buyer shall provide Transferred Employees with credit under
Buyer's vacation pay plan for the earned but not yet used vacation pay benefits
attributable to each Transferred Employee as set forth on Schedule 6.1(b).
Liability for such amounts shall be borne by Buyer; BAPCO shall have no
liability for such vacation pay benefits.
(d) Except as provided in Section 6.1(a), nothing in this Agreement
shall confer upon any employee of BAPCO, including any Transferred Employee, any
right with respect to continuance of employment with Buyer, nor shall any
provision of this Agreement interfere with the right of Buyer to terminate the
employment of any of the Transferred Employees at any time, with or without
cause, or restrict Buyer in its independent judgment in
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Asset Purchase Agreement
modifying any of the terms and conditions of employment of the Transferred
Employees; provided, however, that (i) Buyer shall bear all liability for any
such termination of employment or modification of terms and conditions of
employment following the Closing Date; and (ii) Transferred Employees shall not
be provided disadvantageous treatment in any respect due to their status as
Transferred Employees.
(e) No provisions of this Agreement shall create any third party
beneficiary rights in any Transferred Employee, or any beneficiary or dependents
thereof, with respect to the compensation, terms and conditions of employment
and benefits that may be provided to any Transferred Employee by Buyer or under
any Buyer Benefit Plan. Notwithstanding the above, BAPCO shall retain no
liability with respect to any issues regarding the compensation, terms and
conditions of employment and benefits that may be provided to any Transferred
Employee by Buyer or under any Buyer Benefit Plan.
(f) BAPCO shall retain the obligation to provide health care
continuation (COBRA) coverage under section 4980B of the Code to Retained
Employees, to each BAPCO Eligible who does not receive an offer to become a
Transferred Employee (provided that the failure by Buyer to make such an offer
does not constitute a breach of Buyer's obligations under this Agreement) and to
BAPCO Eligibles who decline an offer to become a Transferred Employee. Buyer
shall comply with COBRA and provide health care continuation coverage to
Transferred Employees in accordance with applicable law. The obligation of BAPCO
and Buyer respectively to offer health care continuation (COBRA) coverage is
conditioned upon the occurrence of a qualifying event with respect to the
relevant employee (or dependent).
(g) BAPCO shall be entitled to retain copies of the personnel files
of the Transferred Employees.
6.2 Customer Non-Solicitation. Except as permitted under the Reseller
Agreement, BAPCO agrees that during the period commencing on the Closing Date
and ending eighteen months thereafter, it will not, and it will cause Cellco not
to, directly solicit Business from any of the customers whose accounts are
transferred to Buyer at the Closing; a list of such customers shall be delivered
by BAPCO to Buyer at the Closing and initialed by BAPCO and Buyer. For purposes
of this Section 6.2, "Business" means the business of selling or leasing one-way
pagers and providing one-way paging services to customers, and "direct
solicitation" does not include any general advertising or maintenance of retail
points of presence. In addition, Sellers agree, on behalf of themselves and
their Affiliates, not to use such customer list to target such customers for
solicitation of Business, but this sentence shall not restrict Sellers' or their
Affiliates' freedom to solicit Business from such customers without the use of
such customer list.
6.3 Expenses. Each Party shall pay its own expenses relating to the
preparation of this Agreement, the carrying out of the provisions of this
Agreement and the consummation of the transactions contemplated hereby,
including without limitation the fees and expenses of their respective counsel,
accountants and financial advisers, except as stated in this Section 6.3, in
Section 6.7 or in the Indemnity Escrow Agreement or the Deposit Escrow
Agreement. Any filing fees payable to the FCC in connection with obtaining the
FCC's consent to the proposed assignment of the FCC Licenses to Buyer shall be
borne 50% by Buyer and 50% by the OTCs.
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Asset Purchase Agreement
Any filing fees payable to the PUCs in connection with the OTCs' transfer of the
OTC Assets to Buyer, withdrawal of service offerings or cancellation of tariffs
hereunder shall be borne 50% by Buyer and 50% by the OTCs (it being understood
and agreed that Buyer shall be responsible for any fees or other amounts payable
in connection with its obtaining the requisite authority to commence the
provision of paging and radio telephone communication service).
6.4 Public Announcements. No Party shall issue a press release, make
publicly available any document or make any public statement concerning this
Agreement, the terms hereof or the transactions contemplated hereby without
obtaining the prior written consent of the other Parties, which consent shall
not be unreasonably withheld or delayed, except to the extent that such Party,
or a publicly held parent company of such Party, is required to issue such a
press release, to make available such a document or to make such a public
statement under the rules of a stock exchange on which such Party's or such
Party's ultimate parent company's securities are listed, or pursuant to any
applicable law or regulation, in which case such Party shall provide prompt
notice of the disclosure to the other Party and shall only issue, make available
or state such information to the extent so required.
6.5 Notices to Customers; No Rights to Xxxx Atlantic Xxxx. Buyer agrees to
send all of the customers of the Paging Business a notice (or notices) within 30
days following the Closing Date, the form and substance of which shall have been
previously approved in writing by BAPCO (which approval may not be unreasonably
withheld), explaining that (a) Buyer has acquired the Paging Business, (b) their
paging service is no longer being provided by BAPCO or any of its Affiliates and
(c) either or both of the following: (i) they may return their pagers to Buyer
for relabeling with Buyer's name at Buyer's expense or (ii) enclosed is a
temporary label with Buyer's name for them to place on their pagers over the
Xxxx Atlantic name. Buyer shall remove the Xxxx Atlantic xxxx and logo from all
pagers in inventory by the date which is 60 days following the Closing Date and
shall use commercially reasonable efforts to remove the Xxxx Atlantic xxxx and
logo from all Leased Pagers. Buyer shall permit BAPCO to audit the Pagers in
inventory to confirm Buyer's compliance with this Section. Within 60 days
following the Closing, BAPCO may send a notice approved by Buyer, which approval
shall not be unreasonably withheld, to any or all of the pager suppliers of the
Paging Business, advising them that (i) Buyer has acquired the Paging Business,
(ii) all of their contracts and purchase orders with BAPCO have been assigned to
and assumed by Buyer, (iii) they may no longer use the Xxxx Atlantic xxxx or
logo on pagers, and (iv) they must promptly destroy any specifications and other
materials provided by Xxxx Atlantic regarding such xxxx and logo and certify the
same to BAPCO in writing or promptly return them to BAPCO. Buyer acknowledges
and agrees that neither this Agreement nor the sale of the Purchased Assets
grants Buyer any right, title or interest whatsoever in or to the Xxxx Atlantic
xxxx.
6.6 Maintenance of Books and Records; Cooperation. Each of BAPCO and Buyer
shall preserve until the seventh anniversary of the Closing Date all records
possessed or to be possessed by such Party relating to any of the assets,
liabilities or business of the Paging Business prior to the Closing Date ("Prior
Information"). After the Closing Date, where there is a legitimate purpose, each
of BAPCO and Buyer (the "Requestee") shall provide the other party (the
"Requestor") and its representatives with access, upon prior reasonable written
request specifying the need therefor, during regular business hours, to (i) the
Requestee's officers and
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Asset Purchase Agreement
employees and (ii) the Requestee's books of account and records (including,
without limiting the generality of the foregoing, records maintained in
electronic form which are accessible via the computer equipment to be sold to
Buyer hereunder and/or the software to be licensed to Buyer under the CSI
License or the BAPCO Modification License), and the Requestor and its
representatives shall have the right to make copies of such books and records;
provided, however, that the foregoing access rights shall be limited to
obtaining and discussing Prior Information, and shall not be exercisable in such
a manner as to interfere unreasonably with the normal operations and business of
the Requestee; and further provided that, as to so much of such information as
constitutes trade secrets or confidential business information of the Requestee,
the Requestor and its representatives will use due care to not disclose such
information except (i) as required by Law, (ii) with the prior written consent
of the Requestee, which consent shall not be unreasonably withheld, or (iii)
where such information becomes available to the public generally, or becomes
generally known to competitors of the Requestee, through sources other than the
Requestor or any Person to whom Requestor has disclosed such information. Such
records may nevertheless be destroyed by a party if such party sends to the
other party written notice of its intent to destroy records, specifying with
particularity the contents of the records to be destroyed. Such records may then
be destroyed after the 60th day after such notice is given unless the other
party objects to the destruction in which case the party seeking to destroy the
records shall deliver such records to the objecting party (and, in the case of
records which are accessible via computer software, shall provide the objecting
party with the use of such software for the purpose of effecting such access).
In addition, Buyer agrees to cooperate with Sellers to the extent reasonably
necessary in connection with the defense of any litigation brought by third
parties with respect to Retained Liabilities (including, without limitation,
making Buyer's personnel available).
6.7 Audited Financial Statements. BAPCO shall furnish Buyer, at Buyer's
expense (including, without limitation, prompt reimbursement of any reasonable
out-of-pocket costs (not to exceed $2,000) of BAPCO or Cellco), with audited
financial statements as at December 31, 1997, and for the twelve month period
ended on such date, which financials will be certified by Coopers & Xxxxxxx,
Sellers' independent certified public accountant, whose reports shall be
included therein.
6.8 Bulk Sales Compliance. Buyer waives compliance by Sellers with the
provisions of any applicable bulk transfer laws and/or bulk sales tax acts
(including, without limitation, any notice provisions thereunder) (the "Bulk
Acts").
6.9 FBI Contract. Following the Closing, at the request of the Federal
Bureau of Investigation, Buyer shall extend the Paging Service Pricing Agreement
with the Federal Bureau of Investigation in the State of West Virginia for a
period of three years (i.e., until its anniversary in 2001), but only to the
extent said Agreement is identical to the form set forth in Schedule 6.9.
6.10 Provision of Telecommunications Transmission Services. Subject to the
other provisions of this Section 6.10 and in accordance with applicable Law, the
OTCs agree that, effective on the Closing Date and continuing thereafter, they
will provide to Buyer the telecommunications transmission services set forth on
Schedule 3.1.3(b), as such Schedule shall be updated in accordance with Section
3.1.3(b). The OTCs further agree that on and for a period of 30 days following
the Closing Date, they will take all reasonable measures to avoid any
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Asset Purchase Agreement
interruption or degradation of such telecommunications transmission services as
a result of the consummation of this transaction. Between the date hereof and
the Closing Date, BAPCO agrees to cooperate as reasonable with Buyer in its
efforts to establish relationships with the independent local exchange carriers
and interexchange carriers listed on Schedule 3.2.3 to avoid interruption or
degradation of the telecommunication transmission services such carriers provide
as a result of the consummation of this transaction. The services used to
interconnect the OTC local telephone networks to the Buyer's paging network for
delivery of local traffic from the OTCs' end users to Buyer shall be provided to
Buyer by the OTCs at no charge pending the negotiation of interconnection
agreements, each of which shall be negotiated by Buyer and the applicable OTC in
good faith and submitted to the applicable PUC for approval, and each of which
shall likewise obligate the OTC to provide such local interconnection services
at no charge. The services used to (a) interconnect the OTC networks to the
Buyer's paging network for non-local traffic, (b) connect Buyer's paging
terminals to its paging transmitters, (c) connect such transmitters to
monitoring locations for the performance of status monitoring, control and
troubleshooting functions and (d) program numbers into such paging terminals and
perform remote monitoring, adjustments, and troubleshooting with respect to such
paging terminals, shall be provided at the rates set forth in the applicable
state and/or interstate tariffs. Until such time (which must be within six
months following the Closing Date) when Buyer provides an OTC with a traffic
study using a methodology mutually agreed by the Buyer and such OTC of the
non-local portion of interconnection traffic in the applicable jurisdiction, the
OTCs and Buyer agree that the non-local portion of such traffic shall be deemed
to be 20%. Should such a traffic study demonstrate that the non-local portion of
such traffic is less than 20%, such OTC shall provide Buyer with a refund equal
to the difference between the amounts actually paid by Buyer for the non-local
portion of such traffic less the amounts which would have been due from Buyer
had such lower percentage been applied during such period. Thereafter, on an
annual basis, Buyer shall submit an updated traffic study to each such OTC and
such OTC and Buyer shall determine in good faith whether to adjust the
percentage for the non-local portion of such traffic; in the event Buyer fails
to submit such a study, the non-local portion of such traffic shall be deemed to
be 20%. Schedule 3.1.3(b) sets forth the monthly charges for each such service
((a) through (d) above) pursuant to the applicable tariff(s) as of May 28, 1998,
and includes detail regarding applicable rates and mileage (or other appropriate
measurement of length) for distance-sensitive pricing; such charges shall be
updated by the OTCs no more than 15 days prior to the Closing Date. Following
the Closing, the maximum aggregate amount the OTCs shall charge Buyer for the
telecommunication transmission services set forth on Schedule 3.1.3(b), as
updated prior to the Closing, shall be $110,000 per month, subject to change as
a result of any changes (i) following the Closing to the Buyer's paging network
configuration, the Equipment or the locations of the Equipment, (ii) in traffic
patterns or (iii) in the applicable tariffs. Notwithstanding the foregoing,
Buyer reserves the right following Closing to obtain interconnection and other
services from the OTCs or other carriers pursuant to the Communications Act of
1934, as amended, relevant state statutes and the rules and policies of the FCC
and relevant PUCs.
6.11 Removal of Equipment from Central Offices. Buyer agrees to remove all
of the transmitters and associated equipment listed on Schedule 3.1.3 and
located inside paging sites identified on Schedule 6.11(a) as being OTC central
offices ("CO" identifies a site as such) ("Transmitters") to cabinets outside
such premises during the five year period immediately following the Closing
Date, in accordance with the following schedule: The first relocation shall
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Asset Purchase Agreement
be completed within 90 days following the Closing Date, and the Transmitters at
the remaining sites shall be relocated in equal amounts during each six month
period during the five year period immediately following the Closing Date (i.e.,
such Transmitters shall be removed from seven or eight sites during each such
six month period). The locations of the Transmitters are listed on Schedule
6.11(a). Buyer agrees to relocate all of the paging terminals and associated
equipment listed on the attachments to Schedule 3.1.3(a) and located inside
paging sites identified on Schedule 6.11(a) as being OTC central offices
("Terminals") to other locations during the seven year period immediately
following the Closing Date, in accordance with the following schedule: The first
relocation shall be completed within one year following the Closing Date, the
second and third relocations shall be completed within two years following the
Closing Date, and the remaining thirteen relocations shall be completed equally
over the next five years (i.e., two or three Terminals shall be relocated during
each such year). The locations of the Terminals are listed on Schedule 6.11(a).
Schedule 6.11(b) sets forth the specific Transmitters and Terminals (including
the current location of such Equipment) that Buyer shall relocate during the six
month period immediately following the Closing Date. At the Closing, Buyer shall
deliver to Sellers a schedule in the form of Schedule 6.11(b) for relocating
Transmitters and Terminals during the period commencing six months after the
Closing Date and ending one year after the Closing Date in accordance with this
Section 6.11(b). Thereafter, on each six month anniversary of the Closing Date,
Buyer shall deliver to Sellers a schedule in the form of Schedule 6.11(b) for
relocating Transmitters and Terminals in accordance with this Section during the
six month period commencing six months following the date of delivery of such
schedule, the last such schedule being delivered on the 78 month anniversary of
the Closing Date. All Transmitters and Terminals shall be removed from inside
the OTC central offices by OTC personnel or OTC approved vendors. All costs
associated with removal of Transmitters and Terminals shall be paid by Buyer in
accordance with the terms of the Maintenance Agreement.
6.12 Billing Software. At the Closing, BAPCO shall deliver to Buyer (a)
the object code and machine-readable source code for the CSI billing software
(the "CSI Software"), as modified by BAPCO (the "BAPCO Modifications", together
with the CSI Software, the "Billing Software") and the related documentation and
(b) a copy of the Billing Software on the appropriate physical medium as agreed
in good faith by BAPCO and Buyer; BAPCO shall be entitled to keep one or more
copies of the Billing Software. It is understood and agreed that Buyer's use of
the CSI Software shall be pursuant to the terms of the CSI License to be
assigned by BAPCO to Buyer at the Closing.
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Asset Purchase Agreement
ARTICLE VII
INDEMNIFICATION
7.1 Survival of Representations and Warranties. All representations and
warranties made by the Parties in this Agreement or in any certificate,
schedule, exhibit, or instrument furnished hereunder shall survive the Closing
for a period of eighteen months after the Closing Date (the "Survival Period").
No claim for a breach of any representation or warranty or of any covenant in
Article IV may be brought by any Party unless written notice of the claim shall
have been given pursuant to Section 7.5(a) on or prior to the last day of the
Survival Period.
7.2 Obligation of Sellers to Indemnify. Each Seller hereby agrees to
indemnify Buyer and its directors, officers and employees (collectively the
"Buyer Indemnified Parties") against, and to protect, save and keep harmless the
Buyer Indemnified Parties from, and to assume liability for, payment of all
liabilities, obligations, losses, damages, penalties, claims, actions, suits,
judgments, settlements, taxes, out-of-pocket costs, expenses and disbursements
(including reasonable costs of investigation, and reasonable attorneys',
accountants' and expert witnesses' fees) of whatever kind and nature, whether or
not arising out of third-party claims or losses incurred or sustained in the
absence of third-party claims (collectively "Losses"), that may be imposed on or
incurred by the Buyer Indemnified Parties as a consequence of or relating to or
arising out of (i) the failure or breach of any representation or warranty by
such Seller contained in this Agreement or in any certificate or instrument
delivered hereunder, (ii) any failure or breach by such Seller of any covenant
or agreement made by such Seller in this Agreement or in any certificate or
instrument delivered hereunder, (iii) the Retained Liabilities, (iv) an
assignment by such Seller of a Contract pursuant to subsection 1.7(a)(i) hereof,
(v) such Seller's failure to comply with any Bulk Act or (vi) the termination of
a Site Lease to which such Seller is a party on a date that is earlier than the
expiration date set forth in such Site Lease as a result of the termination of a
Master Lease or Prime Lease referred to in such Site Lease, provided that for
each such Site Lease, Losses for purposes of this clause (vi) shall be limited
to the increase in rent, if any, that Buyer reasonably has to pay as a direct
result of such termination during the period commencing on the date of such
termination and ending 30 months following the Closing Date.
7.3 Obligation of Buyer to Indemnify. Buyer hereby agrees to indemnify the
Sellers, their Affiliates, and the Sellers' and their Affiliates' respective
directors, officers and employees (collectively the "Seller Indemnified
Parties"), and to protect, save and keep harmless the Seller Indemnified Parties
from, any Losses that may be imposed on or incurred by the Seller Indemnified
Parties as a consequence of or relating to or arising out of (i) the failure or
breach of any representation or warranty by Buyer contained in this Agreement or
in any certificate or instrument delivered hereunder, (ii) any failure or breach
by Buyer of any covenant or agreement made by Buyer in this Agreement or in any
certificate or instrument delivered hereunder, (iii) any Assumed Liability, (iv)
any claim made by any Transferred Employee as a result of the failure of Buyer
to comply with Section 6.1 hereof or as a result of any other act or omission of
Buyer or its Affiliates after the Closing; or (v) the conduct of the Paging
Business by Buyer, its Affiliates, successors or assignees after the Closing.
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Asset Purchase Agreement
7.4 Indemnification Matters. The Party required to pay any amount in
respect of Losses under Section 7.2 or 7.3 (the "Indemnifying Party") shall pay
interest on any cash expenditures by the Buyer Indemnified Parties or the Seller
Indemnified Parties, as the case may be (the "Indemnified Party") to which the
Indemnified Party shall become entitled under Section 7.2 or 7.3 at a rate equal
to the published prime rate of the Chase Manhattan Bank, N.A. in effect from
time to time during the relevant period (the "Defined Rate") from the date the
Indemnified Party paid the Losses which are the subject of the indemnity claim
until the date of payment to the Indemnified Party. Buyer and the Sellers agree
that payments by any Seller under Section 7.2 shall be treated as an adjustment
to the Purchase Price.
7.5 Indemnification Procedures.
(a) Notice of Asserted Liability. In the event that any Indemnified
Party desires to make a claim against any Indemnifying Party in connection with
any Loss for which it may seek indemnification hereunder (an "Asserted
Liability"), the Indemnified Party shall give notice (a "Claims Notice") to the
Indemnifying Party of the Asserted Liability and of its claims of
indemnification with respect thereto. Failure to give such Claims Notice shall
not relieve the Indemnifying Party of its obligations under this Article VII
except to the extent, if at all, that the Indemnifying Party shall have been
prejudiced thereby. The Claims Notice shall describe the Asserted Liability in
reasonable detail and shall indicate the amount (estimated, if necessary, and to
the extent feasible) of the Losses that have been or may be suffered by an
Indemnified Party in connection with such Asserted Liability.
(b) Defense of Asserted Liability. If the facts giving rise to the
Asserted Liability shall involve any actual or threatened claim or demand by any
third party against any Indemnified Party (a "Third Party Claim"), the
Indemnifying Party shall be entitled, but shall not be required, to participate
(at its own expense) in the defense thereof, or the Indemnifying Party may elect
to take charge of and control the defense of such Third Party Claim, provided
that the Indemnifying Party shall pursue the defense of such claim in good faith
by appropriate actions or proceedings promptly taken or instituted and
diligently pursued, and further provided that the Indemnifying Party shall not
have the right to take charge of and control such defense if the named parties
to such action or proceeding include both the Indemnifying Party and the
Indemnified Party and the Indemnified Party has been advised by counsel that
there may be one or more legal defenses available to such Indemnified Party that
are different from or additional to those available to the Indemnifying Party;
the Indemnifying Party must notify the Indemnified Party of such an election
within fifteen days after receipt of a Claims Notice. If the Indemnifying Party
elects to assume the defense of any Third Party Claim in accordance with the
immediately preceding sentence, then the Indemnified Party shall be entitled to
participate (at its own expense) in said defense; if the Indemnifying Party does
not so elect to assume the defense, the Indemnifying Party shall reimburse the
Indemnified Party for all reasonable fees, costs and expenses incurred by the
Indemnified Party in connection with a Third Party Claim indemnifiable under
Section 7.2 or 7.3, as the case may be, as such reasonable fees, costs and
expenses are incurred by the Indemnified Party.
(c) Cooperation. Each Party shall cooperate and shall cause its
officers and employees to cooperate in the defense or prosecution of any claim
for which indemnification is
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Asset Purchase Agreement
sought hereunder and furnish such records, information and testimony and attend
such conferences, discovery proceedings, hearings, trials, and appeals as may be
reasonably requested in connection therewith.
(d) Settlements. No Indemnifying Party will be subject to any
liability for any settlement made without its written consent (but such consent
shall not be unreasonably withheld or delayed); provided, however, in the event
that an Indemnifying Party fails to timely reimburse an Indemnified Party
pursuant to Section 7.5(b), such Indemnified Party shall have the right to
settle a Third Party Claim without the consent of the Indemnifying Party. If an
Indemnified Party refuses to consent to a bona fide offer of settlement which
provides solely for a monetary payment which the Indemnifying Party wishes to
accept, the Indemnified Party may continue to pursue such matter, free of any
participation by the Indemnifying Party, at the sole expense of the Indemnified
Party. In such event, the obligation of the Indemnifying Party shall be limited
to the amount of the offer of settlement which the Indemnified Party refused to
accept plus the costs and expenses (including interest thereon as provided by
Section 7.4) of the Indemnified Party prior to the date the Indemnifying Party
notified the Indemnified Party of the offer of settlement.
7.6 No Consequential or Punitive Damages. Notwithstanding anything in this
Agreement to the contrary, in no event shall any Party be liable for indirect,
special, consequential or punitive damages to another Party arising out of a
breach of this Agreement, even if advised at the time of breach of the
possibility of such damages.
7.7 Limitations on Indemnification. No claim, action or other Asserted
Liability with respect to Losses arising out of a breach of a representation or
warranty of a Seller under this Agreement may be asserted until such time as
claims, actions or other Asserted Liabilities with respect to Losses arising out
of breaches of representations and warranties of Sellers under this Agreement
shall exceed $400,000 in the aggregate (in which case Sellers shall be liable
for all Losses to the extent they are in excess of $400,000). The total
liability of Sellers hereunder for breaches of representations and warranties
shall not exceed the Purchase Price.
7.8 Exclusive Remedy. The indemnification rights of the Parties under this
Article VII for any misrepresentation, breach of warranty or failure to fulfill
any agreement or covenant hereunder on the part of either Party shall be the
Parties' exclusive rights and remedies at law for such misrepresentation, breach
or failure, and are independent of and in addition to any equitable rights or
remedies.
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Asset Purchase Agreement
ARTICLE VIII
TERMINATION
8.1 Termination.
(a) Anything herein to the contrary notwithstanding, this Agreement
shall terminate automatically if the Closing has not occurred by midnight on the
Termination Date, unless extended by the Parties in writing. In addition, this
Agreement may be terminated by written notice of termination at any time before
the Closing Date only as follows:
(i) by mutual written agreement of the Parties;
(ii) by Buyer at any time if the representations and
warranties of Sellers contained herein were materially incorrect when
made, or at any time if a Seller materially breaches any of its
obligations contained herein and such breach is not cured within ten days
after notice from Buyer, or at any time if it becomes evident that any of
the conditions precedent to Closing set forth in Section 5.1 cannot be
met, or if Sellers fail to obtain the requisite approvals referred to in
Section 4.8 on or prior to the date set forth in Section 4.8;
(iii) by Sellers at any time if the representations and
warranties of Buyer contained herein were materially incorrect when made,
or at any time if Buyer materially breaches any of its obligations
contained herein and such breach is not cured within ten days after notice
from Sellers, or at any time if it becomes evident that any of the
conditions precedent to Closing set forth in Section 5.2 cannot be met, or
if Sellers make timely application for, but fail to obtain the requisite
approvals referred to in Section 4.8 on or prior to the date set forth in
Section 4.8; or
(iv) by Sellers at any time if, within seven (7) days after
the satisfaction or waiver of the conditions to the Parties' obligations
to proceed with the Closing set forth in Sections 5.1.2, 5.1.3 and 5.2.6,
Buyer shall be unable to proceed to Closing as a result of failure to have
financing sufficient to fulfill its obligations to pay the Purchase Price
hereunder, provided that failure of Sellers or Cellco, as the case may be,
to deliver all of the documents referred to in Sections 5.1.1, 5.1.4,
5.1.5 and 5.1.6 is not the sole reason for such failure of Buyer to have
such financing.
(b) In the event of termination pursuant to the provisions of this
Section 8.1, this Agreement shall become void and have no effect, without any
liability on the part of any Party or its directors, officers or stockholders in
respect of this Agreement, unless a Party committed a breach of or a default
hereunder or otherwise failed to exercise reasonable commercial efforts to
perform its obligations and to fulfill the conditions to the other Party's
obligations hereunder, in which case the aggrieved Party shall be entitled to
the remedy of specific performance in addition to any other available legal or
equitable remedies.
(c) In the event that this Agreement shall be terminated pursuant to
subsection 8.1(a)(iv) above, BAPCO shall be entitled to keep the Deposit as
liquidated damages. In the
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Asset Purchase Agreement
event that this Agreement shall be terminated for another reason, BAPCO shall
refund the Deposit to Buyer. This Section 8.1(c) shall be in addition to all
other remedies available at law or equity to Sellers.
ARTICLE IX
MISCELLANEOUS
9.1 Proration. State and local property taxes on the Purchased Assets,
rents paid or due under the Site Leases and the Retail and Office Leases,
regulatory fees paid or due in the ordinary course in connection with the Paging
Business or the Purchased Assets (including fees under the universal service
fund and telecommunications relay service), and payments made or due under the
other agreements, arrangements, commitments, contracts, leases, licenses,
instruments and other obligations assigned to Buyer hereunder shall be prorated
as of the Closing Date, and the appropriate amount paid promptly upon demand of
the Party entitled to reimbursement.
9.2 Transfer Taxes. Buyer shall pay all federal, state and local sales,
use, value-added, recording, documentary and other transfer taxes, and any
related penalties, additions to tax and interest, payable as a result of the
purchase, sale or transfer of the Purchased Assets hereunder, whether imposed by
law upon a seller or buyer. Buyer shall pay to the appropriate Seller, if a
Seller is legally responsible for the collection or payment of such taxes, the
amount of such taxes at the Closing or shall deliver appropriate resale
exemption certificates in lieu thereof.
9.3 Broker's and Finder's Fees. Buyer represents and warrants to Sellers
that all negotiations relative to this Agreement have been carried on by Buyer
directly without the retention by Buyer of any Person who may be entitled to any
brokerage or finder's fee or other commission in respect of this Agreement or
the consummation of the transactions contemplated hereby. Sellers represent and
warrant to Buyer that except for Xxxxxxx & Associates L.P., no Person who may be
entitled to any brokerage or finder's fee or other commission in respect of this
Agreement or the consummation of the transactions contemplated hereby has
intervened in the negotiations relative to this Agreement. Sellers shall be
responsible for and shall timely pay any fees and commissions due to Xxxxxxx &
Associates L.P. in connection with the transactions contemplated by this
Agreement, and shall hold Buyer harmless from and against all such fees,
commissions, amounts and claims therefor. The provisions of this Section 9.3 are
not intended for the benefit of, and shall not be enforceable by, Xxxxxxx &
Associates L.P.
9.4 Arbitration.
(a) In the event that there shall be a dispute among the Parties
arising out of or relating to this Agreement, including, without limitation, the
indemnities provided in Article VII, or the breach thereof, the Parties agree
that such dispute shall be resolved by final and binding arbitration before one
arbitrator if such dispute involves an amount less than $150,000 and if such
dispute involves an amount equal to or in excess of $150,000 then before a panel
of three arbitrators, in either case, in New York, New York administered by the
American Arbitration Association ("AAA"), in accordance with AAA's commercial
rules of practice then in effect or
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Asset Purchase Agreement
such other procedures as the Parties may agree to prior to the Closing. Any
award issued as a result of such arbitration shall be final and binding between
the parties thereto, and shall be enforceable by any court having jurisdiction
over the party against whom enforcement is sought. The arbitrator shall have the
authority in his or her discretion to award to the prevailing party the fees and
expenses of such arbitration (including reasonable attorneys' fees) or any
action to enforce an arbitration award.
(b) Solely for purposes of an action to enforce an arbitration award
under this Section 9.4, the Parties each hereby consent to the jurisdiction of
the Supreme Court of the State of New York and the service of process therein.
9.5 Notices. Unless otherwise provided herein, any notice, request,
instruction or other document to be given hereunder by a Party to the other
Party shall be in writing and shall be deemed to have been given upon receipt if
delivered by hand or sent by certified or registered mail postage prepaid, or
the next business day if sent by a prepaid overnight courier service, and in
each case at the respective addresses set forth below or such other address as
such Party may have fixed by notice:
If to Sellers, addressed to:
Xxxx Atlantic Paging, Inc.
(and certain other Xxxx Atlantic companies)
c/x Xxxx Atlantic Corporation
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx,
Executive Director, Investments
with a copy to:
Xxxx Atlantic Network Services, Inc.
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Senior Attorney
If to Buyer, addressed to:
BAP Acquisition Corp.
00 Xxxxxx Xxxx Xxxxx
Xxxxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
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Asset Purchase Agreement
with a copy to:
Xxxxxxxx Xxxxx Xxxxxxxx Xxxx & Ballon LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
9.6 Successors and Assigns. This Agreement, and the Parties' respective
rights and obligations hereunder, may not be assigned, by transfer, change of
control, merger or otherwise, by any Party, other than by operation of law. This
Agreement shall be binding upon and shall inure to the benefit of the Parties
and their respective heirs, executors, administrators, successors and permitted
assigns.
9.7 Severability. In the event any provision of this Agreement is found to
be invalid, illegal or unenforceable by a court of competent jurisdiction, the
remaining provisions of this Agreement shall nevertheless be binding upon the
Parties with the same effect as though the invalid, illegal or unenforceable
part had been severed and deleted.
9.8 Entire Agreement. This Agreement, including the Exhibits and Schedules
hereto which form a part hereof, the Deposit Escrow Agreement, the other
documents referred to herein that are being delivered by the Parties at the
Closing (the "Ancillary Documents") and the Non-Disclosure Agreement dated as of
October 29, 1997 between Cellco Partnership and Buyer (the "Non-Disclosure
Agreement") contain the entire understanding of the Parties with respect to the
subject matter contained herein and therein. This Agreement, the Deposit Escrow
Agreement and the Ancillary Documents supersede all prior agreements and
understandings, whether written or oral, between the Parties with respect to
such subject matter except for the Non-Disclosure Agreement.
9.9 Amendments and Waivers. This Agreement may not be amended or modified
except by written instrument duly executed by each of the Parties. No term or
provision of this Agreement may be waived without the written consent of the
Party entitled to the benefit thereof by a written instrument duly executed by
such Party.
9.10 Third Party Beneficiaries. Nothing in this Agreement shall confer any
rights, remedies or other benefits to any Person other than the Parties and
their respective successors and assigns permitted under Section 9.6.
9.11 Governing Law. The interpretation and construction of this Agreement,
and all matters relating hereto, shall be governed by the laws of the State of
New York without reference to its conflict of laws provisions.
9.12 Headings, Gender and Defined Terms. All article and section headings
contained in this Agreement are for convenience of reference only, do not form a
part of this Agreement and shall not affect in any way the meaning or
interpretation of this Agreement. Any reference herein to any article, section,
exhibit or schedule is a reference to such article or section of, or exhibit or
schedule to, this Agreement unless otherwise specified. Words used herein,
regardless of the
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Asset Purchase Agreement
number and gender specifically used, shall be deemed and construed to include
any other number, singular or plural, and any other gender, masculine, feminine,
or neuter, as the context requires. The definition of each term listed in
Exhibit L may be found in the Section set forth next to such term. The following
terms shall have the following meanings when used in this Agreement:
a. "Affiliate" of any Person means any Person that directly or
indirectly, through one or more intermediaries, controls, or is controlled
by, or is under common control with, such other Person. For purposes of
the foregoing sentence, the term "control" means the direct or indirect
possession of the power to direct or cause the direction of the management
and policies of a Person, whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise.
Without limiting the foregoing, any Person that owns, directly or
indirectly, fifty percent (50%) or more of the securities or partnership
or other ownership interests of another Person having ordinary voting
power for the election of directors or other similar members of the
governing body of such Person (other than as a limited partner) is deemed
to "control" such Person.
b. "Liens" means all mortgages, liens, pledges, security interests,
charges, claims, restrictions and other encumbrances and defects of title
of any nature whatsoever.
c. "Permitted Liens" means Liens for taxes not yet due and payable;
automatic Liens of landlords on personal property located on leased
premises for rents not yet due and payable; Liens of carriers,
warehousemen, mechanics and materialmen for charges for services by such
persons not yet due and payable, and other Liens imposed by law incurred
in the ordinary course of business for sums not yet delinquent; Liens on
personal property arising from filing UCC financing statements relating
solely to leases for such personal property where a Seller is the lessee;
and the other Liens listed on Schedule 9.12.
d. "Person" means an individual, firm, corporation, partnership,
limited liability company, trust, governmental authority or body,
association, unincorporated organization or any other entity.
9.13 Schedules and Exhibits. All Exhibits and Schedules referred to herein
are intended to be and hereby are specifically made a part of this Agreement.
9.14 Counterparts. This Agreement may be executed and delivered
originally, by facsimile or electronic signature and in two or more
counterparts, each of which shall constitute an original, but all of which taken
together shall constitute one and the same instrument.
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Asset Purchase Agreement
IN WITNESS WHEREOF, and intending to be legally bound, the Parties have
duly executed this Agreement as of the date first written above.
XXXX ATLANTIC PAGING, INC. BAP ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxxxx
------------------------------ ----------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxxxx
Title: President Title: President
XXXX ATLANTIC - DELAWARE, INC. XXXX ATLANTIC - PENNSYLVANIA, INC.
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxx X. Xxxx
------------------------------ ----------------------------------
Name: Xxxxx X. Xxxx Name: Xxxxx X. Xxxx
Title: Controller Title: Controller and Chief
Financial Officer
XXXX ATLANTIC - MARYLAND, INC. XXXX ATLANTIC - VIRGINIA, INC.
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxx X. Xxxx
------------------------------ ----------------------------------
Name: Xxxxx X. Xxxx Name: Xxxxx X. Xxxx
Title: Controller Title: Controller
XXXX ATLANTIC - NEW JERSEY, INC. XXXX ATLANTIC - WASHINGTON, D.C., INC.
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxx X. Xxxx
------------------------------ ----------------------------------
Name: Xxxxx X. Xxxx Name: Xxxxx X. Xxxx
Title: Chief Financial Officer Title: Controller
XXXX ATLANTIC - WEST VIRGINIA, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------
Name: Xxxxx X. Xxxx
Title: Principal Financial
Officer and
Controller
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Asset Purchase Agreement
Exhibits
Exhibit A - Form of Indemnity Escrow Agreement
Exhibit B - Form of Promissory Note
Exhibit C - Form of Official Services Agreement
Exhibit D - Form of Real Estate License Agreement
Exhibit E - Form of Maintenance Agreement
Exhibit F - Form of Software Modification License
Exhibit G - Form of Reseller Agreement
Exhibit H - Form of Professional Services Agreement
Exhibit I - Form of Cellco Guarantee
Exhibit J - Form of Legal Opinion of Sellers' Counsel
Exhibit K - Form of Legal Opinion of Buyer's Counsel
Exhibit L - Table of Defined Terms
Exhibit M - Form of CSI Consent
Exhibit N - Form of Billing Services Agreement
Schedules
Schedule 1.1.1(a) FCC Licenses
Schedule 1.1.1(b) Service Contracts
Schedule 1.1.1(c) Site Leases
Schedule 1.1.2(d) Computer Hardware
Schedule 1.1.3 Excluded Assets
Schedule 1.2.5 Purchase Price Allocation
Schedule 3.1.3(a) Equipment
Schedule 3.1.3(b) Telecommunications Transmission Services
Schedule 3.1.5 Litigation
Schedule 3.1.7 Seller Approvals, Notices and Consents
Schedule 3.1.8 Seller Restrictive Documents; Non-Contravention
Schedule 3.1.9 Sites Subject to Master Leases
Schedule 3.2.3 Defined Contracts
Schedule 3.2.5 Customer Contracts
Schedule 3.2.6 BAPCO Employees
Schedule 3.2.7 BAPCO Benefit Plans
Schedule 3.2.8 Pagers
Schedule 3.2.9 Retail and Office Leases
Schedule 3.2.10(a) Financial Statements
Schedule 3.2.10(b) No Material Adverse Effect Exceptions
Schedule 3.2.13 Telephone Number Inventory
Schedule 6.1(a) Retained Employees
Schedule 6.1(b) BAPCO Eligibles
Schedule 6.9 Form of FBI Contract
Schedule 6.11(a) Removal of Equipment from Central Offices
Schedule 6.11(b) Buyer Six Month Equipment Removal Schedule
Schedule 9.12 Permitted Liens
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Asset Purchase Agreement
Exhibit L
to Purchase Agreement
TABLE OF DEFINED TERMS
-------------------------------------------------
Defined Term Section
------------ -------
-------------------------------------------------
AAA 9.4(a)
-------------------------------------------------
Accounting Firm 1.2.3(b)
-------------------------------------------------
Affiliate 9.12
-------------------------------------------------
Agreement Introduction
-------------------------------------------------
Ancillary Documents 9.8
-------------------------------------------------
Asserted Liability 7.5(a)
-------------------------------------------------
Assignment Documents 2.2(a)
-------------------------------------------------
Assumed Liabilities 1.3
-------------------------------------------------
Assumption Agreement 2.2(b)
-------------------------------------------------
BA-DC Introduction
-------------------------------------------------
BA-DE Introduction
-------------------------------------------------
BA-MD Introduction
-------------------------------------------------
BA-NJ Introduction
-------------------------------------------------
BA-DC Introduction
-------------------------------------------------
BA-PA Introduction
-------------------------------------------------
BAPCO Introduction
-------------------------------------------------
BAPCO Assets 1.1.2
-------------------------------------------------
BAPCO Benefit Plans 3.2.7(a)
-------------------------------------------------
BAPCO Eligibles 6.1(a)
-------------------------------------------------
BAPCO Modifications 6.12
-------------------------------------------------
BAPCO Modification License 5.1.4
-------------------------------------------------
BAPCO Paging Business Recitals
-------------------------------------------------
BAPCO Reseller Agreement 1.8(a)
-------------------------------------------------
BA-VA Introduction
-------------------------------------------------
BA-WV Introduction
-------------------------------------------------
Balance Sheet 3.2.10
-------------------------------------------------
Balance Sheet Date 3.2.10
-------------------------------------------------
Beeper Company Contract 1.1.1(d)
-------------------------------------------------
Billing Services Agreement 5.1.4
-------------------------------------------------
Billing Software 6.12
-------------------------------------------------
Books and Records 1.1.2(g)
-------------------------------------------------
Bulk Acts 6.10
-------------------------------------------------
Buyer Introduction
-------------------------------------------------
Buyer Benefit Plans 6.1(a)
-------------------------------------------------
Buyer Indemnified Parties 7.2
-------------------------------------------------
Cellco 5.1.4
Asset Purchase Agreement
-------------------------------------------------
Claims Notice 7.5(a)
-------------------------------------------------
Closing 2.1
-------------------------------------------------
Closing Date 2.1
-------------------------------------------------
Code 3.2.7(a)
-------------------------------------------------
Contract 1.7
-------------------------------------------------
CSI 1.1.2(e)
-------------------------------------------------
CSI Amendment 1.1.2(e)
-------------------------------------------------
CSI 1993 License 1.1.2(e)
-------------------------------------------------
CSI License 1.1.2(e)
-------------------------------------------------
CSI Software 6.12
-------------------------------------------------
Defined Contract 3.2.3
-------------------------------------------------
Defined Rate 7.4
-------------------------------------------------
Deposit 1.2.2
-------------------------------------------------
Deposit Escrow Agreement 1.2.2
-------------------------------------------------
Disconnected Pagers 1.1.2(f)
-------------------------------------------------
Equipment 3.1.3
-------------------------------------------------
ERISA 3.2.7(a)
-------------------------------------------------
Estimated Purchase Price 1.2.3(a)
-------------------------------------------------
Excluded Assets 1.1.3
-------------------------------------------------
FCC Recitals
-------------------------------------------------
FCC Licenses 1.1.1(a)
-------------------------------------------------
Fill-in Transmitters 3.1.4
-------------------------------------------------
Fixed Assets 1.1.2(d)
-------------------------------------------------
Guarantee 5.1.4
-------------------------------------------------
Hazardous Material 3.1.10
-------------------------------------------------
H-S-R Act 3.1.12
-------------------------------------------------
Income Statement 3.2.10
-------------------------------------------------
Indemnified Party 7.4
-------------------------------------------------
Indemnifying Party 7.4
-------------------------------------------------
Indemnity Escrow Agreement 1.2.4(b)
-------------------------------------------------
Inventory Accruals 1.3(b)
-------------------------------------------------
Laws 3.1.6
-------------------------------------------------
Leased Pagers 1.1.2(f)
-------------------------------------------------
Liens 9.12
-------------------------------------------------
Loan Agreement 5.1.5
-------------------------------------------------
Loan Documents 3.2.3
-------------------------------------------------
Losses 7.2
-------------------------------------------------
Maintenance Agreement 5.1.4
-------------------------------------------------
Non-Disclosure Agreement 9.8
-------------------------------------------------
Official Services Agreement 5.1.4
-------------------------------------------------
Orders 3.1.5
-------------------------------------------------
OTC Introduction
-------------------------------------------------
OTC Assets 1.1.1
-------------------------------------------------
Owned Facilities 6.6.1
-------------------------------------------------
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Asset Purchase Agreement
-------------------------------------------------
Pager Inventory 1.1.2(f)
-------------------------------------------------
Pagers 1.1.2(f)
-------------------------------------------------
Paging Business Recitals
-------------------------------------------------
Parties Introduction
-------------------------------------------------
Permitted Liens 9.12
-------------------------------------------------
Person 9.12
-------------------------------------------------
Prior Information 6.6
-------------------------------------------------
Proceedings 3.1.5
-------------------------------------------------
Professional Services Agreement 5.1.4
-------------------------------------------------
Promissory Notes 1.2.4(c)
-------------------------------------------------
PUCs 4.1
-------------------------------------------------
Purchased Assets 1.1.2
-------------------------------------------------
Purchase Price 1.2.1
-------------------------------------------------
Real Property 3.1.10
-------------------------------------------------
Real Property License Agreement 5.1.4
-------------------------------------------------
Requestee 6.6
-------------------------------------------------
Requestor 6.6
-------------------------------------------------
Reseller 1.8(a)
-------------------------------------------------
Reseller Agreement 5.1.4
-------------------------------------------------
Retail and Office Leases 3.2.9
-------------------------------------------------
Retained Contracts 1.1.3(j)
-------------------------------------------------
Retained Employees 6.1(a)
-------------------------------------------------
Retained Liabilities 1.4
-------------------------------------------------
Security and Utility Deposit
Adjustment 1.2.1(b)
-------------------------------------------------
Seller Indemnified Parties 7.3
-------------------------------------------------
Sellers Introduction
-------------------------------------------------
Service Contracts 1.1.1(b)
-------------------------------------------------
Site Leases 1.1.1(c)
-------------------------------------------------
Spare Parts 1.1.1(b)
-------------------------------------------------
Survival Period 7.1
-------------------------------------------------
Telephone Number Inventory 3.2.13
-------------------------------------------------
Terminal 6.11
-------------------------------------------------
Termination Date 4.4
-------------------------------------------------
Third Party Claim 7.5(b)
-------------------------------------------------
Trade Adjustment 1.2.1(a)
-------------------------------------------------
Trade Receivables 1.1.2(c)
-------------------------------------------------
Transferred Employees 6.1(a)
-------------------------------------------------
Transmitter 6.11
-------------------------------------------------
Transmitter Facilities 3.1.4
-------------------------------------------------
WV Customer Contracts 1.1.1(e)
-------------------------------------------------
