ASSET ACQUISITION AGREEMENT
dated as of
January 24, 2001
by and among
UNRESTRICTED SUBSIDIARY FUNDING COMPANY
and
ARCH WIRELESS, INC.,
PAGENET SMR SUB, INC.,
AWI SPECTRUM CO. HOLDINGS, INC.
and
AWI SPECTRUM CO., LLC
TABLE OF CONTENTS
Page
ARTICLE 1 TRANSFER OF PURCHASED ASSETS; LOANS; PURCHASE AND
SALE OF THE PURCHASED ASSETS; PURCHASE PRICE..................2
Section 1.01 Transfer of Purchased Assets.............................2
Section 1.02 Loans and Opinions.......................................2
Section 1.03 Purchase and Sale of Purchased Assets....................3
Section 1.04 No Liens; Assumption of Liabilities......................3
Section 1.05 Purchase Price...........................................3
Section 1.06 License Delivery.........................................4
Section 1.07 Closing..................................................5
Section 1.08 Partial Closing..........................................5
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF ARCH, PAGENET
SMR, SPV HOLDINGS AND SPV.....................................6
Section 2.01 Corporate Organization...................................6
Section 2.02 Corporate Authorization..................................7
Section 2.03 Compliance with Laws.....................................8
Section 2.04 No Conflict..............................................9
Section 2.05 Litigation...............................................9
Section 2.06 Real Estate..............................................9
Section 2.07 Purchased Assets.........................................9
Section 2.08 Financial Statements....................................10
Section 2.09 Liabilities.............................................10
Section 2.10 Taxes...................................................10
Section 2.11 Contracts...............................................10
Section 2.12 Brokers.................................................11
Section 2.13 Employee Benefit Matters................................11
Section 2.14 Customers...............................................12
Section 2.15 Regulatory Matters......................................12
Section 2.16 Transfers of Purchased Assets to SPV....................15
Section 2.17 Bankruptcy..............................................15
Section 2.18 Approvals...............................................16
Section 2.19 Conveyance Documents....................................16
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TABLE OF CONTENTS
(Continued)
Section 2.20 No Misstatements or Omissions...........................16
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF NEXTEL.....................16
Section 3.01 Corporate Organization; Authorization...................16
Section 3.02 No Conflict.............................................17
Section 3.03 Litigation..............................................17
Section 3.04 Compliance with Laws....................................17
Section 3.05 Brokers.................................................17
ARTICLE 4 COVENANTS OF ARCH, PAGENET SMR, SPV HOLDINGS AND SPV.........18
Section 4.01 Conduct of Business.....................................18
Section 4.02 Inspection..............................................18
Section 4.03 Restraint on Solicitations..............................19
Section 4.04 Update Information......................................19
Section 4.05 Further Assurances......................................20
Section 4.06 Tax Returns.............................................20
Section 4.07 Management Agreements...................................20
Section 4.08 License Infrastructure Construction.....................21
Section 4.09 Transition Services.....................................22
Section 4.10 Use of Proceeds.........................................22
Section 4.11 Other Business..........................................23
Section 4.12 Compliance with SPV Limited Liability Company Agreement.23
Section 4.13 Payment of Undelivered License Amount...................23
Section 4.14 Limitations on Actions with Respect to Series F Preferred
Stock...................................................24
ARTICLE 5 JOINT COVENANTS..............................................24
Section 5.01 Confidentiality.........................................24
Section 5.02 Substitute of Subsidiary................................24
Section 5.03 Antitrust Filing........................................24
Section 5.04 Support of Transactions.................................24
Section 5.05 Indemnification.........................................25
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TABLE OF CONTENTS
(Continued)
Section 5.06 FCC Approval............................................27
Section 5.07 Marketing Alliance Agreement............................28
Section 5.08 Exclusive Remedies......................................28
ARTICLE 6 FUNDING......................................................28
Section 6.01 Documents to be Delivered by Arch, PageNet SMR, SPV
Holdings or SPV.........................................28
Section 6.02 Documents to be Delivered by Nextel.....................30
ARTICLE 7 CLOSING......................................................31
Section 7.01 Documents to be Delivered by Arch, PageNet SMR, SPV
Holdings or SPV.........................................31
Section 7.02 Documents to be Delivered by Nextel.....................32
ARTICLE 8 CONDITIONS TO FUNDING OBLIGATIONS............................33
Section 8.01 Conditions to Obligations of Nextel, Arch, PageNet SMR,
SPV Holdings and SPV with Respect to Funding............33
Section 8.02 Conditions to Obligations of Nextel with Respect to
Funding.................................................33
Section 8.03 Conditions to the Obligations of Arch, PageNet SMR,
SPV Holdings and SPV with Respect to the Funding........34
ARTICLE 9 CONDITIONS TO CLOSING OBLIGATIONS............................35
Section 9.01 Conditions to Closing Obligations of Nextel, Arch, PageNet
SMR, SPV Holdings and SPV...............................35
Section 9.02 Conditions to Closing Obligations of Nextel.............35
Section 9.03 Conditions to the Closing Obligations of Arch, PageNet
SMR, SPV Holdings and SPV...............................36
ARTICLE 10 TERMINATION/EFFECTIVENESS....................................37
Section 10.01 Termination.............................................37
Section 10.02 Effect..................................................38
ARTICLE 11 MISCELLANEOUS................................................39
Section 11.01 Waiver..................................................39
Section 11.02 Notices.................................................39
Section 11.03 Assignment..............................................41
Section 11.04 Rights of Third Parties.................................41
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TABLE OF CONTENTS
(Continued)
Section 11.05 Reliance................................................41
Section 11.06 Expenses................................................41
Section 11.07 Construction............................................42
Section 11.08 Captions; Counterparts..................................42
Section 11.09 Entire Agreement........................................42
Section 11.10 Amendments..............................................42
Section 11.11 Publicity...............................................42
iv
Table of Definitions
Agreement, 1 MTA Construction Deadline, 4
Arch, 1 NCI, 1
Arch Group, 8 Nextel, 1
Arch Management Agreement, 13 PageNet SMR, 1
Assignment and Assumption Agreements, 32 Permitted Liens, 10
Assumed Liabilities, 3 Person, 5
Assumed Management Agreement, 21 Preferred Stock Purchase Agreement, 1
Bank Consents, 2 Proposal, 19
Bankruptcy, 16 Purchase Price, 4
Certificate of Designations, 30 Purchased Assets, 3
Closing, 5, 6 Registration Rights Agreement, 29
Closing Date, 5, 6 Restricted License, 5
Code, 12 Secured Loan, 1
Communications Act, 3 Secured Note, 2
Consents, 16 Security Agreement, 2
Contracts, 11 Series C Consent, 2
Costs, 25 Series F Preferred Stock, 1
Credit Agreement, 23 Series F Preferred Stock Assignment
Delivered, 4 Agreement, 31
Disclosure Schedule, 1 Signing Date, 1
Employee Plan, 12 SMR, 13
Excluded Liabilities, 3 SMR License, 13
FCC, 1 SMR System, 13
FCC License, 13 SMR Xxxxx, 00
Final Order, 5 SPV, 1
Funding Date, 2 SPV Holdings, 1
GAAP, 10 STA, 14
Guaranty, 3 Subsequent Closing, 6
XXX Xxx, 00 Tax Clearances, 37
Initial Closing, 6 Terminating Nextel Breach, 38
IRS, 4 Third-Party Claim, 26
Knowledge, 42 Third-Party Claim, 26
Licenses, 1 Third-Party Management Agreement, 13
Liens, 3 Transaction Documents, 30
Loans, 2 Undelivered License Amount, 6
Management Agreements, 3 Unsecured Loan, 2
Minimum License Condition, 5 Unsecured Note, 2
Widely Dispersed MTAs, 21
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EXHIBITS
Exhibit A Preferred Stock Purchase Agreement
Exhibit B Unsecured Note
Exhibit C Bank Consents
Exhibit D Series C Consent
Exhibit E SPV Xxxx of Sale and General Assignment
Exhibit F Secured Note
Exhibit G Security Agreement
Exhibit H Guaranty
Exhibit I Opinion of Xxxxxxxxx Xxxxxx Xxxxxx, LLP, counsel to Arch, PageNet
SMR, SPV Holdings and SPV to be Rendered on Funding Date Relating
to FCC Matters
Exhibit J Opinion of Morris, Nichols, Arsht & Tunnel, counsel to Arch,
PageNet SMR, SPV Holdings and SPV to be Rendered on Funding Date
Relating to Authority to File Matters
Exhibit K Opinion of Morris, Nichols, Arsht & Tunnel, counsel to Arch,
PageNet SMR, SPV Holdings and SPV to be Rendered on Funding Date
Relating to SPV Limited Liability Company Matters
Exhibit L Opinion of Xxxx and Xxxx LLP, counsel to Arch, PageNet SMR, SPV
Holdings and SPV to be Rendered on Funding Date Relating to True
Sale Matters
Exhibit M Opinion of Xxxx and Xxxx LLP, counsel to Arch, PageNet SMR, SPV
Holdings and SPV to be Rendered on Funding Date Relating to
Non-Consolidation Matters
Exhibit N Opinion of Xxxx and Xxxx LLP, counsel to Arch, PageNet SMR, SPV
Holdings and SPV to be Rendered on Funding Date Relating to
Corporate Matters
Exhibit O Registration Rights Agreement
Exhibit P Asset Purchase Agreement by and between PageNet SMR and SPV
Exhibit Q PageNet SMR Xxxx of Sale and General Assignment
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Exhibit R Certificate of Designations
Exhibit S Series F Preferred Stock Assignment and Assumption Agreement
Exhibit T Opinion of Xxxxxxxxx Xxxxxx Xxxxxx, LLP, counsel to Arch, PageNet
SMR, SPV Holdings and SPV to be Rendered on Closing Relating to
FCC Matters
vii
ASSET ACQUISITION AGREEMENT
This Asset Acquisition Agreement ("Agreement") is dated as of January 24,
2001 (the "Signing Date") and is by and among UNRESTRICTED SUBSIDIARY FUNDING
COMPANY ("Nextel") a Delaware corporation, and an indirect, wholly owned
subsidiary of Nextel Communications, Inc. ("NCI"), and ARCH WIRELESS, INC., a
Delaware corporation ("Arch"), PAGENET SMR SUB, INC., a Delaware corporation and
a direct, wholly owned subsidiary of Arch ("PageNet SMR"), AWI SPECTRUM CO.
HOLDINGS, INC., a Delaware corporation and a direct, wholly owned subsidiary of
Arch ("SPV Holdings"), and AWI SPECTRUM CO., LLC, a Delaware limited liability
company and a direct, wholly owned subsidiary of SPV Holdings ("SPV").
PREAMBLE
A. PageNet SMR owns SMR Licenses (as defined herein) issued by the Federal
Communications Commission ("FCC") to construct and operate SMR Systems (as
defined herein) on 800 MHz frequencies and 900 MHz frequencies, which SMR
Licenses are listed on Section 1.03 of the Disclosure Schedule to this Agreement
(the "Disclosure Schedule"; the SMR Licenses listed on Section 1.03 of the
Disclosure Schedule being herein referred to as the "Licenses").
B. SPV desires to acquire the Purchased Assets (as defined herein) from
PageNet SMR on the Funding Date (as defined herein), and PageNet SMR desires to
transfer the Purchased Assets to SPV, for a cash purchase price of One Hundred
Seventy-Five Million Dollars ($175,000,000).
C. Following its acquisition of the Purchased Assets, SPV desires to sell
to Nextel, and Nextel desires to purchase from SPV, on the Closing Date or the
dates of the Initial Closing (as defined herein) and Subsequent Closings (as
defined herein), the Purchased Assets.
D. Nextel, Arch, PageNet SMR, SPV Holdings and SPV desire to enter into
this Agreement to effect the purchase and sale of the Purchased Assets free and
clear of all liens and encumbrances pursuant to the terms set forth herein.
E. Subject to the terms and conditions in this Agreement, Nextel is
agreeing to lend SPV One Hundred Seventy-Five Million Dollars ($175,000,000)
(the "Secured Loan") on the Funding Date, which Secured Loan will be secured by
a lien on all of the assets of SPV and will be guaranteed by SPV Holdings, which
guarantee will be secured by a pledge of all of the issued and outstanding
membership interests in SPV. Interest on such Secured Loan may, under certain
circumstances, be paid in shares of Series F Cumulative Redeemable Preferred
Stock, par value of $0.01 per share, of Arch ("Series F Preferred Stock") to be
sold to SPV by Arch pursuant to an agreement in the form attached hereto as
Exhibit A (the "Preferred Stock Purchase Agreement").
F. Subject to the terms and conditions in this Agreement, Nextel is
agreeing to lend SPV Seventy-Five Million Dollars ($75,000,000) (the "Unsecured
Loan," and together with the Secured Loan, the "Loans") on the Funding Date,
which Unsecured Loan may be exchanged for shares of Series F Preferred Stock
pursuant to the terms of the note relating to the Unsecured Loan in the form
attached hereto as Exhibit B (the "Unsecured Note"), which shares of Series F
Preferred Stock SPV shall purchase pursuant to the Preferred Stock Purchase
Agreement.
G. Arch and its affiliates are seeking the Consent (as defined herein) and
waivers and release of the security interests in the form attached hereto as
Exhibit C from the requisite number of its lenders under its existing secured
credit facilities to the transactions contemplated by this Agreement and the
Loans, and to certain financial covenants, to the extent any such lender consent
is required (the "Bank Consents").
H. Arch and its affiliates are seeking to obtain the Consent in the form
attached hereto as Exhibit D from the holders of Arch's Series C Preferred
Stock, $.01 par value per share (the "Series C Consent"), to the transactions
contemplated by this Agreement, the Loans, and the Preferred Stock Purchase
Agreement.
AGREEMENT
In consideration of the mutual agreements hereinafter contained, Nextel and
Arch, PageNet SMR, SPV Holdings and SPV agree as follows:
ARTICLE 1 TRANSFER OF PURCHASED ASSETS; LOANS; PURCHASE AND SALE OF THE
PURCHASED ASSETS; PURCHASE PRICE
SECTION 1.01 TRANSFER OF PURCHASED ASSETS. Subject to satisfaction of the
conditions set forth in Article 8, on the seventh calendar day following Arch's
receipt of the Bank Consents and the Series C Consent and satisfaction of all
conditions specified in Article 8 and simultaneously with the funding of the
Loans as provided in Section 1.02, PageNet SMR shall transfer and assign to SPV,
and SPV shall acquire from PageNet SMR, all of the Purchased Assets free and
clear of all Liens (as defined herein) except for Permitted Liens (as defined
herein), and the Assumed Management Agreements (as defined herein), if any, for
cash consideration of One Hundred Seventy Five Million Dollars ($175,000,000).
Such transfer shall be evidenced by a Xxxx of Sale and General Assignment in the
form of Exhibit E hereto. Such delivery shall take place at the offices of
Xxxxx, Day, Xxxxxx & Xxxxx, 00 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000-0000.
SECTION 1.02 LOANS AND OPINIONS. Subject to satisfaction of the conditions
set forth in Article 8, on the seventh calendar day following Arch's receipt of
the Bank Consents and the Series C Consents and simultaneous with the transfer
of the Purchased Assets to SPV, Nextel shall fund the Loans (the "Funding
Date"), SPV shall deliver the Unsecured Note and a promissory note representing
the Secured Loan (the "Secured Note") in the form of Exhibit F hereto, and the
SMR Spectrum Security Agreement in the form of Exhibit G hereto (the "Security
Agreement"), SPV Holdings shall deliver the Guaranty and Pledge Agreement in the
form of Exhibit H hereto (the "Guaranty"), and Arch, PageNet SMR, SPV Holdings
2
and SPV shall cause the opinions in the forms attached as Exhibit I, Exhibit J,
Exhibit K, Exhibit L, Exhibit M and Exhibit N hereto to be delivered. Such
deliveries shall take place at the offices of Xxxxx, Day, Xxxxxx & Xxxxx, 00
Xxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000-0000.
SECTION 1.03 PURCHASE AND SALE OF PURCHASED ASSETS. At the Closing (as
defined herein), SPV (or, in the case of Assumed Management Agreements, the
member of the Arch Group (as defined herein) party thereto) will sell, transfer
and assign to Nextel or its designee, as the case may be, and Nextel, or its
designee, as the case may be, will acquire from SPV (or, in the case of Assumed
Management Agreements, the member of the Arch Group party thereto), on the terms
and conditions in this Agreement, (a) the Licenses as set forth in Section 1.03
of the Disclosure Schedule, (b) any and all records (copies and/or originals
where necessary) of SPV or PageNet SMR (other than SPV's or PageNet SMR's
corporate records) relating to the foregoing (all of which, together with the
Licenses, are collectively referred to herein as the "Purchased Assets") and (c)
the Assumed Management Agreements, if any.
SECTION 1.04 NO LIENS; ASSUMPTION OF LIABILITIES.
(a) The Purchased Assets shall be sold free and clear of any and all
liens, equities, claims, prior assignments, mortgages, charges, security
interests, pledges, conditional sales contracts, collateral security
arrangements and other title retention arrangements, restrictions or
encumbrances of any kind or nature ("Liens") except for (a) Assumed Liabilities
(as defined herein), (b) restrictions that are generally applicable to SMR
Licenses (as defined herein) pursuant to the Communications Act of 1934, as
amended, and the rules, regulations and policies of the FCC (together, the
"Communications Act") and (c) the Assumed Management Agreements, if any.
(b) Neither Nextel nor any of its affiliates shall, by execution and
delivery of this Agreement or otherwise, assume or otherwise be responsible for
any liability or obligation of any nature of Arch, PageNet SMR, SPV Holdings or
SPV or any other member of the Arch Group, related to or arising from any of
Arch's, PageNet SMR's, SPV Holdings' or SPV's assets, operations, businesses or
activities, if any, including, but not limited to, the Management Agreements set
forth on Section 1.04(b) of the Disclosure Schedule (the "Management
Agreements"), or claims for any liability or obligation, whether matured or
unmatured, liquidated or unliquidated, fixed or contingent, known or unknown,
arising from occurrences prior to, at or after the Closing Date (as defined
herein) (collectively, the "Excluded Liabilities"); provided, that Nextel shall
assume, and the Excluded Liabilities shall not include, executory liabilities
related the Assumed Management Agreements, if any, and liabilities arising from
the ownership or operation of the Purchased Assets following the date of the
Closing on which such Purchased Assets are sold to Nextel (collectively, the
"Assumed Liabilities").
SECTION 1.05 PURCHASE PRICE.
(a) AMOUNT OF PURCHASE PRICE. Subject to adjustment in accordance with
Sections 1.06 and 1.08, the purchase price for all of the Purchased Assets is
One Hundred Seventy-Five Million Dollars ($175,000,000) (the "Purchase Price").
As payment for the Purchased Assets, concurrent with the Closing, to the extent
3
the interest and principal under the Secured Loan has not been repaid, Nextel
will set-off against, and SPV will not be required to repay, amounts outstanding
under the Secured Loan first, to the extent of any principal, and provided that
all principal has been repaid, second, to the extent of any outstanding accrued
and unpaid interest, outstanding under the Secured Loan.
(b) PURCHASE PRICE ALLOCATION. The Purchase Price shall be allocated
as set forth on Section 1.05 of the Disclosure Schedule, subject to modification
to reflect changes in the Schedules between the date hereof and the Closing. The
parties agree that the allocation of the Purchase Price shall be controlling for
tax purposes and shall be used in preparing Internal Revenue Service ("IRS")
Form 8594.
(c) TAXES. Arch, PageNet SMR, SPV Holdings and SPV shall be
responsible for and shall pay all applicable state sales or transfer taxes, if
any, arising out of the transactions contemplated by this Agreement. SPV shall
deliver to Nextel a receipt or other evidence of payment of any such amounts to
the applicable taxing authority reasonably satisfactory to Nextel as soon as
practicable after payment thereof by Arch, PageNet SMR, SPV Holdings or SPV, as
the case may be.
SECTION 1.06 LICENSE DELIVERY.
(a) The Purchase Price shall be reduced for each License not Delivered
(as defined herein) by SPV at Closing by the applicable License value set forth
for such License on Section 1.06 of the Disclosure Schedule.
(b) A License shall be "Delivered" by SPV if at the Closing or
Subsequent Closing, as the case may be: (i) the FCC has granted its consent to
the assignment of such License to Nextel or Nextel's designee by Final Order (as
defined herein); (ii) either (A) PageNet SMR has satisfied the construction
benchmarks for such License set forth in 47 CFR Section 90.665(c) of the
Communications Act and the facilities so constructed either (x) remain
operational or (y) if out of operation, have not been out of operation for more
than sixty (60) days and are restored on or before the Closing Date (or
Subsequent Closing (as defined herein) date, as the case may be) pursuant to
Section 4.09, or (B) there are at least nine (9) full calendar months remaining
before the end of the five-year benchmark deadline applicable to such License
under 47 CFR Section 90.665(c), giving effect to any general or license-specific
extension of such deadline ordered by the FCC and applicable to such License
(the "MTA Construction Deadline"); (iii) such License is not subject to (A) any
agreement to be sold to a third party, or (B) any option or right of first
refusal in favor of any third party; (iv) except for the Assumed Management
Agreements, if any, there is no contract right of any third party or FCC order
otherwise encumbering or limiting the use of such License; (v) except for under
the Assumed Management Agreements, if any, no consideration is due to any
individual, partnership, corporation, association, joint stock company, trust,
joint venture, limited liability company or similar entity or any governmental
entity ("Person") in connection with such License; and (viii) such License is
not subject to or otherwise included within any proceeding commenced or assessed
by a third party or any regulatory agency, including, without limitation, the
4
FCC, that is reasonably likely to result in a take-back, termination, adverse
modification, cancellation or nonrenewal of such License.
(c) For purposes of this Agreement, "Final Order" means an action by
the FCC granting its consent and approval to the assignment of the Licenses,
with respect to which no action, request for stay, or timely petition for
rehearing, reconsideration or appeal is pending, and as to which the time for
filing any request, petition or appeal has expired and with respect to which the
time for agency action taken on its own motion has expired; or in the event of
the timely filing of such request, petition or appeal, an action which shall
have been reaffirmed or upheld and with respect to which the time for seeking
further administrative or judicial review shall have expired without the filing
of any such action for further review.
SECTION 1.07 CLOSING. Except as otherwise described in Section 1.08 of this
Agreement, as used in this Agreement, the "Closing" shall mean the time at which
SPV consummates the sale, assignment, transfer and delivery of the Purchased
Assets to Nextel as provided herein by the execution and delivery by SPV of the
documents and instruments referred to in Section 7.01 against delivery by Nextel
of the documents and payments provided in Section 7.02. In the absence of a
prior termination of this Agreement in accordance with Article 10, the Closing
shall take place at the offices of Xxxxx, Day, Xxxxxx & Xxxxx, 00 Xxxxxxxxx
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000-0000 (a) ten (10) days following the day on
which the last of the conditions to Closing set forth in Article 9 are satisfied
or (b) at such other time and place and on such other day as shall be mutually
agreed upon in writing by the parties hereto (the "Closing Date"). Legal title,
equitable title and risk of loss with respect to the Purchased Assets shall not
pass to Nextel until the Purchased Assets are transferred at the Closing or
Subsequent Closing, as the case may be, which transfer, once it has occurred,
shall be deemed effective for tax, accounting and other computational purposes
as of 11:59 P.M. (Eastern Time) on the Closing Date or such Subsequent Closing,
as the case may be.
SECTION 1.08 PARTIAL CLOSING.
(a) In the event (i) SPV is able to Deliver Licenses with an aggregate
value, in accordance with the License valuations set forth on Section 1.06 of
the Disclosure Schedule, of at least One Hundred Ten Million Dollars
($110,000,000) (i.e, 62.9% of One Hundred Seventy-Five Million Dollars
($175,000,000)), which Licenses shall include not less than all but one of the
Licenses in each of the following MTA markets: Los Angeles/San Diego, New York,
Dallas-Fort Worth, Houston, Chicago, Miami-Fort Lauderdale, San
Francisco-Oakland, and Detroit (the "Minimum License Condition"), but fewer than
all of the Licenses and (ii) each of the other conditions set forth in Article 9
has been satisfied or waived, then, the parties shall consummate the sale to
Nextel of the Delivered Licenses and, with respect to any Licenses which do not
qualify as Delivered (each a "Restricted License"), consummate the sale to
Nextel of such Restricted License within ten (10) business days after such time
as SPV is able to Deliver such License. In the event of one or more partial
closings in accordance with this Section 1.08, the term "Closing" or "Initial
Closing" shall be deemed to be the initial partial closing and the term "Closing
Date" shall be the date and time at which the Initial Closing shall occur. Each
closing after the Initial Closing is referred to herein as a "Subsequent
5
Closing." The portion of the Purchase Price payable at the Initial Closing
through the retirement of principal and interest due under the Secured Loan as
contemplated by Section 1.05 of this Agreement shall be an amount equal to One
Hundred Seventy-Five Million Dollars ($175,000,000) less the applicable License
value set forth on Section 1.06 of the Disclosure Schedule for each Restricted
License. The portion of the Purchase Price payable at each Subsequent Closing
through the retirement of principal and interest due under the Secured Loan as
contemplated by Section 1.05 of this Agreement for the purchase and sale of a
Restricted License shall be an amount equal to the License value set forth on
Section 1.06 of the Disclosure Schedule for such Restricted License.
(b) In the event that a Restricted License cannot be Delivered, at
Nextel's option, Nextel may require Arch (to the extent Nextel requires the
Undelivered License Amount (as defined herein) to be paid in shares of Series F
Preferred Stock) and SPV to, and, in such event, Arch shall, and Arch and SPV
Holdings shall cause SPV to, pay to Nextel (to the extent provided for in
Section 4.13(b)) an amount that is equal to the License value set forth on
Section 1.06 of the Disclosure Schedule for such Restricted License (the
"Undelivered License Amount") in accordance with Section 4.13 of this Agreement.
In the event that Nextel requires the payment of the Undelivered License Amount
as contemplated in this Section 1.08(b) and in Section 4.13, to the extent the
interest and principal under the Secured Loan have not been repaid, Nextel will
set-off against, and SPV will not be required to repay, such amount outstanding
under the Secured Loan equal to the Undelivered License Amount that has been
paid to Nextel first, to the extent of any principal, and provided that all
principal has been repaid, second, to the extent of any accrued and unpaid
interest, outstanding under the Secured Loan. Notwithstanding anything in this
Section 1.08(b) to the contrary, if (i) Nextel does not elect to be paid the
Undelivered License Amount as contemplated by this Section 1.08(b) and Section
4.13 or (ii) a Restricted License is not Delivered solely because of the failure
to obtain any required Consent from the FCC or under the HSR Act (as defined
herein), neither Arch nor SPV shall be required to pay Nextel the Undelivered
License Amount as required under this Section 1.08(b) and Section 4.13 of this
Note; provided, however, Nextel shall remain entitled to such recourse to which
it is entitled to under the Secured Note with respect repayment of the Secured
Loan.
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF ARCH, PAGENET SMR, SPV HOLDINGS
AND SPV.
Except as set forth in the Disclosure Schedule simultaneously delivered to
Nextel (it being understood that (1) nothing set forth in any numbered section
of the Disclosure Schedule shall be deemed set forth in any other numbered
section of the Disclosure Schedule unless expressly noted therein (by
cross-reference or otherwise) and (2) no disclosure contained in the Disclosure
Schedule as an exception to a particular section of this Agreement shall be
deemed an exception to any other section of this Agreement unless expressly
noted therein (by cross-reference or otherwise)), Arch, PageNet SMR, SPV
Holdings and SPV, jointly and severally, make the following representations and
warranties to Nextel.
6
SECTION 2.01 CORPORATE ORGANIZATION.
(a) Each of Arch, PageNet SMR and SPV Holdings has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the State of Delaware and has the corporate power and authority to own
or lease its properties and to conduct its business as it has been and is now
being conducted. The copies of the Certificates of Incorporation of each of
Arch, PageNet SMR and SPV Holdings, certified by the Secretary of State of the
State of Delaware, and the By-laws of each of Arch, PageNet SMR or SPV Holdings
certified by their respective corporate secretaries, previously made available
by Arch to Nextel, are true, correct and complete. SPV has been duly formed and
is validly existing and in good standing as a limited liability company under
the laws of the State of Delaware and has the limited liability company power
and authority to own or lease its properties and to conduct its business as it
has been and is now being conducted. The copy of the Certificate of Formation of
SPV, certified by the Secretary of State of Delaware, and Limited Liability
Company Agreement of SPV, certified by the Secretary of SPV, previously made
available by Arch to Nextel, are true, correct and complete.
(b) SPV does not have any direct or indirect subsidiaries, nor does it
own, directly or indirectly, any partnership, equity, profit or similar
ownership interest in any Person. Other than SPV, SPV Holdings does not have any
direct or indirect subsidiaries, nor does it own, directly or indirectly, any
partnership, equity, profit or similar ownership interest in any Person.
(c) Each of Arch, PageNet SMR and SPV Holdings is duly licensed or
qualified and in good standing as a foreign corporation in all jurisdictions
identified on Section 2.01(c) of the Disclosure Schedule and such jurisdictions
are the only ones in which its ownership of property or the character of its
activities is such as to require it to be so licensed or qualified, except where
such failures to qualify which individually and collectively would not have an
adverse effect upon (i) the Purchased Assets or (ii) the ability of Arch,
PageNet SMR, SPV Holdings or SPV to consummate the transactions contemplated by
this Agreement. SPV is duly licensed or qualified and in good standing as a
foreign limited liability company in all jurisdictions on Section 2.01(c) of the
Disclosure Schedule and such jurisdictions are the only ones in which its
ownership of property or the character of its activities is such as to require
it to be so licensed or qualified, except where such failures to qualify which
individually and collectively would not have an adverse effect upon (i) the
Purchased Assets or (ii) the ability of Arch, PageNet SMR, SPV Holdings or SPV
to consummate the transactions contemplated by this Agreement.
(d) Arch owns all of the issued and outstanding capital stock and any
other equity interest or voting right in PageNet SMR. Arch owns all of the
issued and outstanding capital stock and any other equity interest or voting
right in SPV Holdings. SPV Holdings is the sole member of SPV.
(e) At all times since the formation of SPV, SPV has been in
compliance with, conducted its operations in accordance with, and has not acted
in any manner that is inconsistent with, the Certificate of Formation or Limited
7
Liability Company Agreement of SPV, as well as each of the covenants and
agreements that SPV has agreed to comply with following the date of this
Agreement under Section 4.01.
SECTION 2.02 CORPORATE AUTHORIZATION. Each of Arch, PageNet SMR and SPV
Holdings has all necessary corporate power and authority, and SPV has all
necessary limited liability company power and authority, to enter into this
Agreement and to perform all of the obligations to be performed by it hereunder.
The execution, delivery and performance of this Agreement by Arch, PageNet SMR
and SPV Holdings has been duly authorized by their respective Boards of
Directors; the execution, delivery and performance of this Agreement by PageNet
SMR and SPV Holdings has been duly authorized by their respective stockholders;
and the execution, delivery and performance of this Agreement by SPV has been
duly authorized by its Board of Directors and sole member. Upon the execution
and delivery hereof by the parties hereto, this Agreement will constitute the
valid and legally binding obligations of Arch, PageNet SMR, SPV Holdings and
SPV, enforceable against each of Arch, PageNet SMR, SPV Holdings and SPV in
accordance with its terms, except as enforceability thereof may be limited by
applicable bankruptcy, reorganization, insolvency or other similar laws
affecting creditors' rights generally, or by equitable principles of general
applicability with respect to the availability of equitable remedies.
SECTION 2.03 COMPLIANCE WITH LAWS.
(i) None of Arch or any of its direct or indirect subsidiaries or
other affiliates (collectively, the "Arch Group") (with respect to the Purchased
Assets), PageNet SMR, SPV Holdings or SPV is in violation (nor is liable or
otherwise currently responsible with respect to prior violations) of any
statute, law or regulation applicable to any of its presently or formerly owned
properties or to the conduct of their current or past businesses, except for any
such violations which individually and collectively would not have an adverse
effect upon (i) the Purchased Assets or (ii) the ability of Arch, PageNet SMR,
SPV Holdings or SPV to consummate the transactions contemplated by this
Agreement;
(ii) none of the processes followed, results obtained, services
provided or products made, modified or installed by any member of the Arch Group
(with respect to the Purchased Assets), or PageNet SMR, SPV Holdings or SPV (in
the ordinary course of its business or otherwise), violate any statute, law or
regulation applicable thereto, except for any such violations which individually
and collectively would not have an adverse effect upon (i) the Purchased Assets
or (ii) the ability of Arch, PageNet SMR, SPV Holdings or SPV to consummate the
transactions contemplated by this Agreement;
(iii) none of the businesses of any member of the Arch Group (with
respect to the Purchased Assets), or PageNet SMR, SPV Holdings or SPV or the
processes, results, services or products performed, sold or otherwise made
available by any member of the Arch Group (with respect to the Purchased
Assets), or PageNet SMR, SPV Holdings or SPV violates any applicable law or
regulation relating to air, water or noise pollution or employee health and
safety or the production, storage, labeling, transportation or disposition of
solid waste or hazardous or toxic substances, except for any such violations
8
which individually and collectively would not have an adverse effect upon the
(i) the Purchased Assets or (ii) the ability of Arch, PageNet SMR, SPV Holdings
or SPV to consummate the transactions contemplated by this Agreement.
(iv) Each member of the Arch Group (with respect to the Purchased
Assets), PageNet SMR, SPV Holdings and SPV have timely obtained all licenses and
permits and timely filed all reports required to be filed under any such
applicable laws or regulations, except for any such failures which individually
and collectively would not have an adverse effect upon (i) the Purchased Assets
or (ii) the ability of Arch, PageNet SMR, SPV Holdings or SPV to consummate the
transactions contemplated by this Agreement.
SECTION 2.04 NO CONFLICT. The execution and delivery of this Agreement by
each of Arch, PageNet SMR, SPV Holdings and SPV and the consummation of the
transactions contemplated hereby do not, and will not, constitute an event
which, after notice or lapse of time or both would:
(a) violate any provision of, or result in the breach of, or
accelerate or permit the acceleration of the performance required by: (i) the
terms of, any applicable law, rule or regulation of any governmental body; (ii)
the Certificates of Incorporation or By-Laws of Arch, PageNet SMR or SPV
Holdings or the Certificate of Formation or Limited Liability Company Agreement
of SPV; (iii) any indenture, material agreement, or other material instrument to
which any member of the Arch Group is a party or by which any member of the Arch
Group may be bound; or (iv) any order, judgment or decree applicable to any of
them; or
(b) terminate or result in the termination of any indenture, material
agreement or other material instrument, or result in the creation of any Lien
upon any of the Purchased Assets or the membership interests in the SPV under
any agreement to which it is a party.
SECTION 2.05 LITIGATION. There are no actions, suits, proceedings, claims
or investigations formally instituted and pending or, to the Knowledge (as
defined herein) of Arch, PageNet SMR, SPV Holdings or SPV, threatened against or
specifically affecting any member of the Arch Group or involving any of their
properties or assets, at law or in equity, or before or by any federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentally, domestic or foreign, or any arbitration panel or alternative
dispute resolution body which would in any manner adversely affect PageNet SMR,
SPV Holdings or SPV or have an adverse effect upon (i) the Purchased Assets or
(ii) the ability of Arch, PageNet SMR, SPV Holdings or SPV to consummate the
transactions contemplated by this Agreement. No member of the Arch Group (with
respect to or affecting the Purchased Assets), PageNet SMR, SPV Holdings nor SPV
is subject to or in default under any outstanding order, writ, injunction or
decree that could adversely affect (i) the Purchased Assets or (ii) the ability
of Arch, PageNet SMR, SPV Holdings or SPV to consummate the transactions
contemplated by this Agreement.
SECTION 2.06 REAL ESTATE. None of PageNet SMR, SPV Holdings or SPV owns any
real estate, has any rights or options to purchase real estate, or leases, or is
otherwise a party to any lease of, real estate.
9
SECTION 2.07 PURCHASED ASSETS. Upon the transfer contemplated by Section
1.01 and on and after the Funding Date, SPV will have good and marketable title
to, and will validly and lawfully hold, all of the Purchased Assets. Except for
restrictions that are generally applicable to SMR Licenses pursuant to the
Communications Act, and Liens pursuant to the Loans and the Security Agreement
(collectively, "Permitted Liens"), and except with respect to Assumed Management
Agreements, if any, none of the Purchased Assets will be subject to any Lien on
or after the Closing Date. There is no outstanding claim and no legal basis for
any claim by the FCC against any of Arch, PageNet SMR, SPV Holdings or SPV for
failure to pay amounts due to the FCC in connection with any FCC auction. As of
the date hereof, other than the Licenses, no member of the Arch Group owns,
operates or uses any SMR Licenses.
SECTION 2.08 FINANCIAL STATEMENTS. Set forth in Section 2.08 of the
Disclosure Schedule is a balance sheet of each of PageNet SMR, SPV Holdings and
SPV as of the date hereof, each of which has been prepared in accordance with
generally accepted accounting principles consistently applied ("GAAP") (except
for the absence of footnotes) and present fairly in all material respects the
financial position of PageNet SMR, SPV Holdings and SPV at the dates stated
thereon.
SECTION 2.09 LIABILITIES. None of PageNet SMR, SPV Holdings or SPV has any
liability or obligation, secured or unsecured (whether accrued, absolute,
contingent or otherwise), except for (a) those liabilities or obligations
arising directly out of the Loans, the Security Agreement and the Guaranty, (b)
those liabilities and obligations shown on PageNet SMR's balance sheet, SPV
Holdings' balance sheet and SPV's balance sheet, respectively, set forth in
Section 2.08 of the Disclosure Schedule and (c) those liabilities or obligations
incurred by PageNet SMR, SPV Holdings or SPV in the ordinary course of business
after such date, but only to the extent such liabilities are incurred consistent
with the SPV's Limited Liability Company Agreement, the Security Agreement, the
Loans and Section 4.01 of this Agreement.
SECTION 2.10 TAXES. All federal, state and other tax returns and reports
required to be filed in connection with the Purchased Assets or the business of
PageNet SMR, SPV Holdings or SPV have been duly filed by a member of the Arch
Group, PageNet SMR, SPV Holdings or SPV, and all taxes and other assessments and
levies (including all interest and penalties), including, without limitation,
income, franchise, real estate, sales, gross receipts, use and
telecommunications excise and service taxes and employee withholding taxes, owed
in connection with the Purchased Assets or the operation of the business of
PageNet SMR, SPV Holdings or SPV, have been paid by a member of the Arch Group,
PageNet SMR, SPV Holdings or SPV. No member of the Arch Group has waived any
statute of limitations with respect to any tax or other assessments or levy
applicable to PageNet SMR, SPV Holdings or SPV or the Purchased Assets and all
such taxes and other assessments and levies which a member of the Arch Group,
PageNet SMR, SPV Holdings or SPV is required by law to withhold or to collect
have been duly withheld and collected and have been paid over to the proper
United States, state or local governmental entity or municipality or subdivision
thereof or any authority, department, agency, court or instrumentality thereof
or segregated and set aside for such payment and, if so segregated and set
aside, shall be so paid by a member of the Arch Group, PageNet SMR, SPV Holdings
or SPV, as required by law. Neither the IRS nor any other taxing authority has
10
asserted in writing or, to the best of Arch's, PageNet SMR's, SPV Holdings' and
SPV's Knowledge, is threatening to assert against a member of the Arch Group,
PageNet SMR, SPV Holdings or SPV any deficiency or claim for additional taxes or
interest thereon or penalties in connection therewith, which deficiency or claim
has not been paid and satisfied in full.
SECTION 2.11 CONTRACTS.
(a) Except pursuant to the terms of the Licenses, the Transaction
Documents (as defined below), or the Management Agreements, neither PageNet SMR,
SPV Holdings nor SPV is a party to, or bound by, nor are the Purchased Assets
subject to, any agreement, contract or arrangement (collectively, the
"Contracts"), including without limitation, any:
(i) agreement or other arrangement involving payments or receipts;
(ii) lease or management agreement relating to the use or operation
of a License or an SMR License;
(iii) indenture, agreement, note, mortgage, guaranty or other
writing which evidences or relates to any loan of money to, or indebtedness for
money borrowed by any member of the Arch Group;
(iv) license agreement or other contract or agreement relating to
patents, trademarks, trade names, techniques or copyrights or applications for
any thereof, inventions, trade secrets or other proprietary know-how or
technical assistance; or
(v) any agreement relating to any direct or indirect acquisition of
SMR Licenses, whether written or oral.
(b) None of the operations pursuant to any of the Management
Agreements of any facilities authorized by any of the Licenses violate the
Communications Act in any manner that would have an adverse effect on any of the
Licenses or the transactions contemplated hereunder or the Transaction
Documents. Except for the Management Agreements, as to which this representation
is made to the Knowledge of Arch, PageNet SMR, SPV Holdings and SPV, (i) none of
the members of the Arch Group, or any other party thereto, is in default under
the terms of any Contracts described in Subsections 2.11(a), and (ii) no event
has occurred, which, with the passage of time or giving of notice, would
constitute such a default of a member of the Arch Group or any such other party.
SECTION 2.12 BROKERS. Except for fees paid to Bear Xxxxxxx & Co., which
shall be paid by and are the sole responsibility of Arch, no member of the Arch
Group has directly or indirectly dealt with anyone acting in the capacity of a
finder or broker and none of them has incurred nor will they incur any
obligation for any finder's or broker's fee or commission in connection with
this Agreement or the transactions contemplated hereby.
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SECTION 2.13 EMPLOYEE BENEFIT MATTERS.
(a) None of PageNet SMR, SPV Holdings or SPV has or has had any
employees or any agreements with any Person that has acted as a consultant or
independent contractor for or on behalf of PageNet SMR, SPV Holdings or SPV.
(b) None of PageNet SMR, SPV Holdings or SPV has ever had any
obligation to contribute to any "multiemployer plan" (as defined in Section
3(37) of the Employee Retirement Income Security Act of 1974, as amended). None
of PageNet SMR, SPV Holdings or SPV maintains, contributes to, or has any
liability under or with respect to any plan or arrangement, whether or not
terminated, which provides or provided medical, health, life insurance or other
welfare-type benefits for retired (either current or future) or terminated
employees (except for limited continued medical benefit coverage required to be
provided under Section 4980B of the Internal Revenue Code (the "Code") or as
required under applicable state law).
(c) None of PageNet SMR, SPV Holdings or SPV maintains, contributes to
or has any liability under or with respect to any plan or arrangement providing
benefits to current or former employees, directors, consultants or independent
contractors including any bonus plan, plan for deferred compensation, employee
health or other welfare benefit plan or other arrangement, whether or not
terminated (any such plan or arrangement, an "Employee Plan").
(d) For purposes of Section 2.13(b), "PageNet SMR", "SPV Holdings" and
"SPV" include all organizations that now are or have been, within the past six
(6) years, considered with PageNet SMR, SPV Holdings or PageNet SMR to be a
single employer pursuant to Section 414 of the Code.
SECTION 2.14 CUSTOMERS. Except for customers using SMR Systems operating
under one of the Assumed Management Agreements, if any, and except for customers
using SMR Systems under any of the Management Agreements that are not Assumed
Management Agreements, all of whose rights to use such SMR Systems will be
terminated not later than the date that the related Management Agreement is
terminated and in all events before any such License is transferred to Nextel,
there are no existing direct or indirect customers of the business of PageNet
SMR, SPV Holdings and SPV as of the date hereof. There is no customer of the
business of PageNet SMR, SPV Holdings or SPV who would be entitled to free or
reduced cost service below PageNet SMR's, SPV Holdings' or SPV's standard rate
for such service or who barter for such service. No such free or reduced cost
service shall be required to be maintained by Nextel after the Closing.
SECTION 2.15 REGULATORY MATTERS.
(a) DEFINITIONS. For purposes of this Agreement, the following terms
shall have the indicated meanings:
"Arch Management Agreement" shall mean any management or other
agreement (other than a loading agreement) pursuant to which any member of the
12
Arch Group agrees to manage or to perform other services (other than loading)
with respect to SMR Licenses held by another Person in exchange for either the
right to receive a portion of the revenues derived from such SMR Licenses or the
right to purchase such SMR Licenses or any loading agreement pursuant to which
it is loading SMR Licenses held by another Person in exchange for either the
right to receive a portion of the revenues derived from such SMR Licenses in
excess of 25% of the aggregate revenues derived from such SMR Licenses or the
right to purchase such SMR Licenses.
"FCC License" shall mean any paging, mobile telephone, SMR or
other license, permit, consent, certificate of compliance, franchise, approval
or authorization of any type granted or issued by the FCC, including, without
limitation, any of the foregoing authorizing the acquisition, construction or
operation of an SMR System, radio paging system or other radio communications
system.
"SMR" shall mean a specialized mobile radio.
"SMR License" shall mean an FCC License authorizing the
construction, ownership and operation of an SMR System in the 900 MHz or 800 MHz
band issued pursuant to 47 CFR Part 90 of the Rules and Regulations of the FCC.
"SMR System" shall mean an SMR system licensed under 47 CFR Part
90 of the Rules and Regulations of the FCC.
"SMR Units" shall mean the number of mobile and control stations
(within the meaning of 47 CFR Part 90 of the Rules and Regulations of the FCC)
subscribing to SMR Systems licensed to or managed by PageNet SMR excluding,
however, any such units which are subject to a Third-Party Management Agreement
(as defined herein) if the respective third party has a right to purchase the
SMR Licenses which are subject to such Third-Party Management Agreement.
"Third-Party Management Agreement" shall mean any management or
other agreement pursuant to which a Person is managing SMR Licenses held by
PageNet SMR, SPV Holdings or SPV, or any loading agreement pursuant to which a
Person is loading SMR Licenses held by PageNet SMR, SPV Holdings or SPV.
(b) LICENSE INFORMATION. Section 1.03 of the Disclosure Schedule sets
forth a true and complete list of the following information for each of the
Licenses issued to or operated by PageNet SMR, SPV Holdings or SPV:
(i) the name of the licensee, the call sign, the transmitter
location (by DFA or MTA market designation, as applicable) and the frequency or
frequencies authorized;
(ii) the number of channels authorized and the number of channels
constructed;
13
(iii) except for those Licenses identified as MTA SMR Licenses,
whether the License is for a conventional or trunked SMR System, the applicable
loading date, whether the License is subject to a finders preference, and
whether the License is operating under Special Temporary Operating Authority
("STA") and the applicable STA expiration date; and
(iv) whether such Licenses are subject to rights of first refusal,
options, management agreements and other such rights or obligations, including,
without limitation, entitlements to acquire additional ownership interests,
which may affect the ownership interests of SPV.
(c) CONDITION OF SYSTEMS. None of the facilities operated pursuant to
the Licenses is operated in violation of the Communications Act in a manner that
would reasonably be expected to adversely affect the Licenses, the transactions
contemplated in this Agreement or obtaining the Consents of the FCC.
(d) FEES; LICENSE COMPLIANCE. A member of the Arch Group, with respect
to periods prior to the date of formation of SPV, and SPV has paid all
franchise, license or other fees and charges which have become due in respect of
the ownership, operation or use of the Licenses and SPV has made appropriate
provision as is required by GAAP, consistently applied, for any such fees and
charges which have accrued, except where the failure to make such payments would
not have an adverse effect upon the (i) Purchased Assets or (ii) ability of
Arch, PageNet SMR, SPV Holdings or SPV to consummate the transactions
contemplated by this Agreement. A member of the Arch Group, with respect to
periods prior to the date of formation of SPV, and SPV have duly secured all
necessary permits, licenses, consents and authorizations from, and has filed all
required registrations, applications, reports and other documents with, the FCC,
except where the failure to secure or file would not have an adverse effect upon
the (i) Purchased Assets or (ii) ability of Arch, PageNet SMR, SPV Holdings or
SPV to consummate the transactions contemplated by this Agreement. As of the
Signing Date, PageNet SMR, and as of the Funding Date and Closing Date and each
Subsequent Closing, SPV holds the Licenses (except to the extent such Licenses
are conveyed to Nextel pursuant to this Agreement) and all of the Licenses are
valid and in full force and effect without conditions except for such conditions
as are stated on any such License or as are generally applicable to holders of
900 MHz or 800 MHz licenses. Except for FCC rules, policies or waivers of
general applicability to all licensees of SMR Licenses, none of PageNet SMR, SPV
Holdings or SPV is subject to any agreement, FCC waiver or otherwise applicable
regulations encumbering or limiting the use of any License. No event has
occurred and is continuing which would reasonably be expected to (i) result in
the revocation, termination or adverse modification of any of the Licenses, or
(ii) adversely affect any rights of PageNet SMR, SPV Holdings or SPV thereunder.
Arch, PageNet SMR and SPV have no reason to believe and no Knowledge that any of
the Licenses will not be renewed in the ordinary course. PageNet SMR, SPV
Holdings and SPV have sufficient time, materials, equipment, contract rights and
other required resources to complete, in a timely fashion and in full,
construction of all the SMR Systems associated with the Licenses in compliance
with all applicable technical standards and construction requirements and
deadlines. Neither the ownership nor the operation by PageNet SMR, SPV Holdings
and SPV of such SMR Systems fail to comply with the Communications Act in a
manner that would reasonably be expected to adversely affect the Licenses, the
14
transactions contemplated in this Agreement or obtaining the Consents of the
FCC.
(e) MANAGEMENT AGREEMENTS. No member of the Arch Group is a party to
or bound by, with respect to any License, any Arch Management Agreement (and
associated option agreements, if any). SPV is not a party to or bound by any
Third Party Management Agreements. No member of the Arch Group is a party to or
bound by any Third Party Management Agreement other than the Management
Agreements set forth on Section 1.04(b) of the Disclosure Schedule. Section
1.04(b) of the Disclosure Schedule identifies each of the Management Agreements
and identifies, to the best of the Arch Group's Knowledge, the parties and the
term of each such Management Agreement and the Licenses and spectrum affected
thereby. With respect to each Management Agreement, Arch, PageNet SMR, SPV
Holdings or SPV has the right to, and with respect to each Management Agreement
that is not an Assumed Management Agreement, shall, cancel, buy-out or otherwise
terminate each such Management Agreement such that none of such Management
Agreements will have any adverse effect upon the ability of Arch, PageNet SMR,
SPV Holdings or SPV to consummate the transactions contemplated by this
Agreement or by the other Transaction Documents and will not impose any
obligation, liability, restriction or other encumbrance whatsoever upon Nextel
or, on or after the Closing related to any License, any of the Licenses subject
to such Closing.
SECTION 2.16 TRANSFERS OF PURCHASED ASSETS TO SPV. (i) The transfer of the
Purchased Assets from PageNet SMR to SPV will be consummated by PageNet SMR with
no contemplation of insolvency and with no intent to hinder, delay or defraud
any of its present or future creditors; (ii) the consideration to be received by
PageNet SMR in exchange for the Purchased Assets is fair consideration, and
PageNet SMR will receive a reasonably equivalent value in exchange for the
Purchased Assets; (iii) neither on, before or immediately after such transfer,
nor as a result of such transfers related thereto, will PageNet SMR:
(a) not be solvent or be insolvent such that the sum of its debts is
greater than all of its property, at a fair valuation;
(b) be engaged in, or about to engage in, business or a transaction
for which any property remaining with PageNet SMR will be an unreasonably small
capital or the remaining assets of PageNet SMR will be unreasonably small in
relation to its respective business or the transaction; and
(c) have intended to incur, or believed it would incur, debts that
would be beyond its respective ability to pay as such debts mature or become
due. PageNet SMR's assets and cash flow enable it to meet its present
obligations in the ordinary course of business as they become due; and
(iv) both immediately prior to and immediately following the consummation of the
transfers of the Purchased Assets; (y) the present fair salable value of PageNet
SMR's assets will be in excess of the amount that will be required to pay its
probable liabilities as they then exist and as they become absolute and matured;
and (z) the sum of PageNet SMR's assets was or will be greater than the sum of
its debts, valuing its assets at a fair salable value.
15
SECTION 2.17 BANKRUPTCY. None of Arch, PageNet SMR, SPV Holdings or SPV has
declared, or otherwise taken any action that would result in, its voluntary
Bankruptcy. No involuntary Bankruptcy action or proceeding has been filed or, to
the Knowledge of the Arch Group, is threatened against any of Arch, PageNet SMR,
SPV Holdings or SPV and from and after the date hereof, no event has occurred
and none of Arch, PageNet SMR, SPV Holdings or SPV has taken any action that
would result in its involuntary Bankruptcy. For the purposes of this Agreement,
the term "Bankruptcy" means, with respect to any Person, if such Person (i)
makes an assignment for the benefit of creditors, (ii) files a voluntary
petition in bankruptcy, (iii) is the subject of an involuntary petition in
bankruptcy, irrespective of whether an order for relief has been entered with
respect to such Person, (iv) is adjudged a bankrupt or insolvent, or has entered
against it an order for relief, in any bankruptcy or insolvency proceedings, (v)
files a petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation or similar relief under any statute, law
or regulation, (vi) files an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against it in any
proceeding of this nature, (vii) seeks, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator of the Person or of all or any
substantial part of its properties, or (viii) if one hundred twenty (120) days
after the commencement of any proceeding against the Person seeking
reorganization, arrangement, composition, readjustment, liquidation or similar
relief under any statute, law or regulation, if the proceeding has not been
dismissed, or if within ninety (90) days after the appointment without such
Person's consent or acquiescence of a trustee, receiver or liquidator of such
Person or of all or any substantial part of its properties, the appointment is
not vacated or stayed, or within ninety (90) days after the expiration of any
such stay, the appointment is not vacated.
SECTION 2.18 APPROVALS. Consent from the FCC, the Bank Consents, the Series
C Consent and the expiration or termination of any waiting periods under the HSR
Act (as defined herein) are the only consents, novations, approvals,
authorizations, requirements (including filing and registration requirements),
waivers and agreements prescribed by any law or regulation, or any contract,
agreement, commitment or undertaking ("Consents") that must be obtained or
satisfied by Arch, PageNet SMR, SPV Holdings or SPV to transfer the Purchased
Assets, for the consummation of the transactions contemplated by this Agreement,
or for the continued performance by Arch, PageNet SMR, SPV Holdings or SPV of
their rights and obligations hereunder, except that Arch, PageNet SMR, SPV
Holdings and SPV make no representation as to whether the consent, approval,
authorization or notification of, or any other filing with, any state or local
governmental entity which may assert jurisdiction on any of them or on the
Licenses, would be so required.
SECTION 2.19 CONVEYANCE DOCUMENTS. All deeds, bills of sale, endorsements,
assignments, affidavits and other good and sufficient instruments of sale,
assignment, conveyance and transfer as are required to effectively vest in SPV
good and marketable title in and to, and evidence that SPV validly and lawfully
holds, all of the Purchased Assets, free and clear of any and all Liens, except
Permitted Liens and Assumed Management Agreements, if any, are set forth in
Section 6.01 of this Agreement.
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SECTION 2.20 NO MISSTATEMENTS OR OMISSIONS. None of the information or
documents furnished or to be furnished by Arch, PageNet SMR, SPV Holdings or SPV
to Nextel or to any of Nextel's representatives is or will be false or
misleading as to any material fact or omits or will omit to state a material
fact required to be stated therein or necessary in order to make any of the
statements made therein, in light of the circumstances under which they were
made, not misleading.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF NEXTEL
Nextel represents and warrants to Arch, PageNet SMR and SPV that:
SECTION 3.01 CORPORATE ORGANIZATION; AUTHORIZATION.
(a) Nextel has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware and has the
corporate power and authority to own or lease its properties and to conduct its
business as it is now being conducted.
(b) Nextel has all necessary corporate power and authority to enter
into this Agreement and to perform all of the obligations to be performed by it
hereunder. The execution, delivery and performance of this Agreement by Nextel
has been duly authorized by Nextel, and upon the execution and delivery hereof
by, respectively, Arch, PageNet SMR, SPV Holdings and SPV, this Agreement will
constitute the valid and legally binding obligations of Nextel, enforceable
against it in accordance with its terms, except as enforceability thereof may be
limited by applicable bankruptcy, reorganization, insolvency or other similar
laws affecting creditors' rights generally, or by equitable principles of
general applicability with respect to the availability of equitable remedies.
SECTION 3.02 NO CONFLICT. The execution and delivery of this Agreement by
Nextel and the consummation of the transactions contemplated hereby do not and
will not violate any provision of, or result in the breach of, or accelerate or
permit the acceleration of the performance required by the terms of, any
applicable law, rule or regulation of any governmental body, or the Certificate
of Incorporation or the By-Laws of Nextel or any agreement, indenture or other
instrument to which Nextel is a party or by which Nextel may be bound, or of any
order, judgment or decree applicable to it, or terminate or result in the
termination of any such agreement, indenture or instrument, or result in the
creation of any Lien upon any of the properties or assets of Nextel under any
agreement to which it is a party, or constitute an event which, after notice or
lapse of time or both, would result in any such violation, breach, acceleration,
termination or creation of a Lien.
SECTION 3.03 LITIGATION. There are no actions, suits, proceedings, claims
or investigations formally instituted and pending or, to the Knowledge of
Nextel, threatened against Nextel or any of its subsidiaries or involving any of
their respective properties or assets before any governmental entity that could
reasonably be expected to prevent or delay the consummation of the transactions
contemplated by this Agreement. Nextel is not subject to or in default under any
outstanding order, writ, injunction or decree that could reasonably be expected
to prevent or delay the consummation of the transactions contemplated hereby.
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SECTION 3.04 COMPLIANCE WITH LAWS. Nextel is not in violation (nor is
liable or otherwise currently responsible with respect to prior violations) of
any statute, law or regulation, except for any such violations which
individually and collectively would not have a material adverse effect upon the
ability of Nextel to consummate the transactions contemplated by this Agreement.
Nextel has timely obtained all licenses and permits and timely filed all reports
required to be filed under any such applicable laws or regulations, except for
any such failures which individually and collectively would not have a material
adverse effect upon the ability of Nextel to consummate the transactions
contemplated by this Agreement.
SECTION 3.05 BROKERS. No broker, finder or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Nextel.
ARTICLE 4 COVENANTS OF ARCH, PAGENET SMR, SPV HOLDINGS AND SPV
SECTION 4.01 CONDUCT OF BUSINESS. From the date of this Agreement until the
Closing Date, PageNet SMR, SPV Holdings and SPV shall, Arch shall cause PageNet
SMR and SPV Holdings to, and Arch and SPV Holdings shall cause SPV to, conduct
their respective business as contemplated by the parties to consummate the
transactions contemplated hereby, and, without limiting the generality of the
foregoing, neither PageNet SMR, SPV Holdings nor SPV shall, without the prior
written consent of Nextel, except as contemplated by this Agreement, the Loans,
the Security Agreement and the Guaranty:
(a) dispose or contract to dispose of any SMR channels or FCC
Licenses;
(b) sell, transfer, lease, mortgage, pledge or otherwise encumber,
dispose of or contract to dispose of any Purchased Asset;
(c) modify, amend, cancel or terminate any of the Assumed Management
Agreements;
(d) except for the 800 MHz license to be purchased by PageNet SMR on
the Funding Date, acquire or contract to acquire any SMR channels or FCC
Licenses or any rights to acquire any SMR channels or FCC Licenses or acquire or
contract to acquire, directly or indirectly, any interest in an entity that has
any interest in SMR channels or FCC Licenses;
(e) voluntarily incur any absolute or contingent debt obligation;
(f) deconstruct any presently constructed channel;
(g) enter into any lease or contract for the purchase or sale of real
estate or of any interest therein;
(h) adopt any employee benefit plan or any employment agreement;
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(i) declare or pay any dividends or purchase or redeem any of its
shares, notes or other securities or make any other distribution to stockholders
(except that such restriction shall not apply to PageNet SMR);
(j) employ or hire as a consultant any Person, except as permitted by
SPV's Limited Liability Company Agreement;
(k) form or cause to be formed any subsidiary;
(l) make any commitments for capital improvements, except as permitted
by SPV's Limited Liability Company Agreement; or
(m) agree or commit to do any of the foregoing.
SECTION 4.02 INSPECTION. SPV shall permit representatives of Nextel, during
normal business hours, to examine PageNet SMR's, SPV Holdings' and SPV's
properties, books, contracts, tax returns and other records, and shall furnish
such representatives with all such information concerning such affairs as they
may reasonably request. Arch shall permit representatives of Nextel, during
normal business hours, to examine the Arch Group's (other than the records that
are the subject of the prior sentence) properties, books, contracts, tax returns
and other records that relate to the Purchased Assets, the Management
Agreements, PageNet SMR or SPV Holdings and shall furnish such representatives
with all such information in writing concerning such affairs as they may
reasonably request. Arch, PageNet SMR, SPV Holdings and SPV shall, at Nextel's
reasonable request, seek waivers of provisions of any Contract which provisions
would have the effect of prohibiting Nextel from exercising the rights described
in this Section 4.02. Any information or document provided to Nextel or acquired
by Nextel during an investigation pursuant to this Section 4.02 shall be deemed
confidential information subject in all cases to the terms of the provisions of
Section 5.01.
SECTION 4.03 RESTRAINT ON SOLICITATIONS. From the date of this Agreement
until the Closing Date, none of Arch, PageNet SMR, SPV Holdings or SPV shall,
nor shall any of them permit any of its affiliates to, directly or indirectly,
encourage (including by way of furnishing information), solicit, initiate,
participate in or otherwise be a party to any discussions or negotiations with
any Person concerning any transaction that constitutes, or may reasonably be
expected to lead to, any Proposal (as defined herein). Neither the Board of
Directors or managers of any of Arch, PageNet SMR, SPV Holdings or SPV, nor any
committee thereof, shall (a) withdraw or modify, or propose to withdraw or
modify, in a manner adverse to Nextel, the approval by the Board of Directors or
managers of any of Arch, PageNet SMR, SPV Holdings or SPV of this Agreement or
(b) approve, or propose to approve, any Proposal. Arch, PageNet SMR, SPV
Holdings or SPV, as the case may be, will immediately notify Nextel if any such
inquiries or proposals are received by, any such information is requested from,
or any such negotiations or discussions are sought to be initiated or continued
with, Arch, PageNet SMR, SPV Holdings or SPV. As used in this Agreement,
"Proposal" shall mean any proposal or offer from any Person relating to any
acquisition of the Purchased Assets or a merger, share exchange or other
business combination involving PageNet SMR, SPV Holdings or SPV or a merger,
share exchange or other business combination involving Arch that does not
19
expressly permit, delay or otherwise adversely affect the consummation of the
transactions contemplated by this Agreement or in any way adversely affects
Nextel's rights and remedies under this Agreement or any Transaction Document.
SECTION 4.04 UPDATE INFORMATION. Not earlier than ten (10) and not less
than five (5) days before the date scheduled for the Initial Closing and each
Subsequent Closing, Arch, PageNet SMR, SPV Holdings and SPV shall correct and
supplement in writing any information furnished in the Disclosure Schedule that
is incorrect or incomplete (or otherwise expressly contemplated by Article 2 of
this Agreement), and shall promptly furnish such corrected and supplemented
information to Nextel, so that such information shall be correct and complete at
the time such updated information is so provided, provided that such information
to be delivered after the Initial Closing and prior to any Subsequent Closing
shall refer only to the Purchased Assets to which such Subsequent Closing
relates. Thereafter, until such Subsequent Closing, Arch, PageNet SMR, SPV
Holdings and SPV shall notify Nextel in writing of any changes or supplements to
the updated information needed to make such information correct and complete at
all times up to such closing.
SECTION 4.05 FURTHER ASSURANCES. Arch, PageNet SMR, SPV Holdings and SPV
shall use their best efforts to implement the provisions of this Agreement, and
for such purpose, SPV shall, at the request of Nextel, at or after the Closing,
without further consideration, promptly execute and deliver, or cause to be
executed and delivered, to Nextel such deeds, assignments, bills of sale,
consents and other instruments in addition to those required by this Agreement,
in form and substance satisfactory to Nextel, and take all such other actions
appropriate to the circumstances, as Nextel may reasonably deem necessary or
desirable to implement any provision of this Agreement or to more effectively
transfer, convey and assign to Nextel or its designee good and marketable title
to, the right to validly and lawfully hold, and to put Nextel or its designee in
actual possession and operating control of, all of the Purchased Assets free and
clear of all Liens, other than Permitted Liens and, with respect to the
Licenses, other than Assumed Management Agreements, if any.
SECTION 4.06 TAX RETURNS. Arch, PageNet SMR, SPV Holdings and SPV will
prepare or cause to be prepared all income, franchise, sales and other tax
returns or reports required by law and promptly make all tax payments which are
required through the Closing Date and the date of each Subsequent Closing with
respect to their respective businesses and the use and operation of the
Purchased Assets purchased at such closing. Each of PageNet SMR, SPV Holdings
and SPV shall cooperate with Nextel's counsel in the submission of tax clearance
requests to the various state taxing authorities to which PageNet SMR, SPV
Holdings or SPV are subject and shall cooperate with such authorities to
facilitate the issuance of all necessary tax clearances required by law, if any.
SECTION 4.07 MANAGEMENT AGREEMENTS. For a period of thirty (30) days
following the Signing Date, Arch, PageNet SMR, SPV Holdings and SPV (i) shall
provide Nextel with such information as Nextel shall reasonably request
concerning the Management Agreements and (ii) shall cooperate with Nextel in
facilitating the assignment to Nextel, contingent upon the assignment of the
affected Licenses, of the rights and obligations of such Arch Group member under
20
such Management Agreement that Nextel, in its sole discretion, elects in writing
to assume. On or before the end of such thirty (30) day period, Nextel shall
identify in writing to Arch each such Management Agreement that Nextel elects to
assume (each, an "Assumed Management Agreement") and Arch shall take all
necessary action to cancel, buy-out or otherwise terminate each of the
Management Agreements that Nextel has not elected to assume (without any cost to
SPV) such that none of such Management Agreements will have any adverse effect
upon the ability of Arch, PageNet SMR, SPV Holdings or SPV to consummate the
transactions contemplated by this Agreement or by the other Transaction
Documents or will impose any obligation, liability, restriction or other
encumbrance whatsoever upon Nextel or, on and after the Closing related to any
of the Licenses, any of such Licenses. Arch, PageNet SMR, SPV Holdings and SPV
shall use their commercially reasonable efforts, without having to make any
expenditures, to cause the Assumed Management Agreements, if any, to be
transferred and assigned to Nextel. None of Arch, PageNet SMR, SPV Holdings or
SPV shall be deemed to have made any warranty or representation with regard to
the validity or enforceability of any Assumed Management Agreement that is
assigned to and assumed by Nextel. To the extent that Nextel or an affiliate of
Nextel operates pursuant to a Management Agreement facilities authorized by any
of the Licenses, Nextel shall take no action, except as may be required by law
or by any member of the Arch Group pursuant to the terms of any Management
Agreement, that would cause any of such Licenses to fail to meet the standards
to be Delivered (as defined in Section 1.06).
SECTION 4.08 LICENSE INFRASTRUCTURE CONSTRUCTION.
(a) From and after the date of this Agreement, the Arch Group agrees
(i) to consult with Nextel and to provide to Nextel, at least every thirty (30)
days, a written status report containing full information regarding the
construction, if any, pursuant to any of the Licenses and (ii) to cooperate with
Nextel to determine what infrastructure constructed or to be constructed by
Nextel in the Minneapolis-St. Xxxx, Omaha, Spokane-Xxxxxxxx, Des Moines, Wichita
and Little Rock MTAs (the "Widely Dispersed MTAs") can be employed to expedite
and complete the construction of the Licenses that authorize service in the
Widely Dispersed MTAs.
(b) PageNet SMR, SPV Holdings and SPV shall use their best efforts to
cause all of the Licenses to meet the conditions required to be Delivered as of
the Closing Date as required under Section 1.06 of this Agreement. If at any
time, the time remaining until the MTA Construction Deadline for any License is
less than nine (9) calendar months, PageNet SMR, SPV Holdings and SPV shall, to
the extent necessary to meet the conditions required for the Licenses to be
Delivered, take all necessary steps and make all commercially reasonable and
necessary preparations to ensure that such License shall be constructed and
operational in accordance with all FCC requirements, and that PageNet SMR, SPV
Holdings and SPV shall have timely made the requisite certification of
construction to the FCC, prior to the MTA Construction Deadline, provided that,
and notwithstanding any more general undertaking provided elsewhere in this
Agreement with respect to construction under a License for one of the Widely
Dispersed MTAs, Arch shall not be required to take any such steps or make any
such preparations to the extent such activity requires Arch to expend
out-of-pocket funds. It is further agreed that, for the seventeen Licenses for
21
the MTAs listed on Section 4.08 of the Disclosure Schedule, Arch, PageNet SMR,
SPV Holdings and SPV shall not be required to take any such steps or make any
such preparations as to those Licenses except to the extent requested in writing
by Nextel, in which event, PageNet SMR, SPV Holdings and SPV shall take all such
necessary steps and make all such commercially reasonable and necessary
preparations so requested by Nextel to ensure that such Licenses shall be
constructed and operational in accordance with all FCC requirements and Nextel
shall promptly reimburse PageNet SMR, SPV Holdings and SPV for all documented
incremental out-of-pocket costs incurred to complete such requested construction
of any or all of the seventeen Licenses for the MTAs listed on Section 4.08 of
the Disclosure Schedule.
(c) Nextel, upon request by SPV, shall take commercially reasonable
steps to cooperate with SPV in SPV's construction of facilities authorized under
MTA SMR Licenses included in the Licenses in connection with SPV's fulfillment
of its obligations hereunder to meet the conditions for the Licenses to be
Delivered, provided that Nextel's agreement to cooperate shall not alter the
obligations of Arch, PageNet SMR, SPV Holdings and SPV hereunder or cause such
obligations to be or become in any respect joint obligations with Nextel.
SECTION 4.09 TRANSITION SERVICES.
(a) The Arch Group shall provide Nextel and its subsidiaries at no
cost with access to base station sites and the use of any and all necessary
infrastructure including, but not limited to, repeaters, antennas, associated
base station equipment and handsets to maintain all the Licenses that have been
constructed as of the closing with respect to such Licenses (including Licenses
previously constructed and required to be restored to operation on or before
such Closing Date or Subsequent Closing date pursuant to Section 1.06(b)) as
both constructed and operational consistent with FCC requirements for a period
of up to nine (9) months after the closing with respect to such License. Any of
the properties, equipment and/or systems provided to Nextel and its subsidiaries
in connection with the transition services contemplated hereby shall be in
material compliance with all standards and rules imposed by any governmental
agency or authority applicable to the operation and ownership of such
properties, equipment and systems.
(b) Nextel and Arch, PageNet SMR, SPV Holdings and SPV agree to use
their commercially reasonable efforts to negotiate and enter into a transition
services agreement within ninety (90) days from the Signing Date, which
transition services agreement shall set forth the terms under which the Arch
Group shall provide the transition services described above in Section 4.09(a)
and shall in any event be sufficient to keep such Licenses constructed under the
Communications Act; provided, however, that the terms of such transition
services agreement shall be consistent with the terms set forth above in Section
4.09(a) and in the event that the parties are unable to negotiate, and do not
execute, such a transition services agreement, the Arch Group's obligations to
provide the transition services described above in Section 4.09(a) shall be
unaffected.
SECTION 4.10 USE OF PROCEEDS.
(a) Arch shall use, or cause PageNet SMR to use, the proceeds of the
Secured Loan solely to repay the indebtedness of Wireless Holdings, Inc. (fka
22
Arch Paging, Inc.) pursuant to that certain Third Amended and Restated Credit
Agreement by and among Wireless Holdings, Inc., the lenders party thereto, and
the Bank of New York, as administrative agent, dated as of March 23, 2000, as
amended through the date hereof (the "Credit Agreement").
(b) SPV shall retain and not dividend Five Million Dollars
($5,000,000) of the proceeds of the Unsecured Loan to fund its day to day
working capital and operating needs (including, without limitation, the payment
obligations under Sections 1.8(b) and 4.13 of this Agreement and any indemnity
obligations owing pursuant to Section 5.05 of this Agreement) and to comply with
the requirements of its Limited Liability Company Agreement. Except for up to
Nine Million Dollars ($9,000,000) in proceeds of the Unsecured Loan which Arch
may use to make the interest payment due on its 10-7/8% Senior Discount Notes
due on September 15, 2001, Arch shall distribute the remaining proceeds from the
Unsecured Loan to its operating subsidiaries for their day to day working
capital and operational needs and to conduct their respective businesses in the
ordinary course of business provided that Arch and its affiliates comply with
the terms and conditions of the (a) Third Amended and Restated Credit Agreement,
dated as of March 23, 2000, among Arch Wireless Holdings, Inc. (fka Arch Paging,
Inc.), the lenders party thereto, and The Bank of New York, as administrative
agent, as amended, (b) Third Amended and Restated Parent Guaranty, dated as of
November 10, 2000, between Arch and The Bank of New York, as collateral agent,
and (c) Parent Guaranty (PageNet), dated as of November 10, 2000, between Arch
and The Bank of New York, as collateral agent, each as amended through the date
hereof and as such agreements exist on the date hereof and as such agreements
will be further amended as contemplated under the Bank Consents. Upon repayment
in full of the Loans, Nextel consents that any part of such Five Million Dollar
($5,000,000) retained amount that remains undisbursed may be distributed to SPV
Holdings and thereafter to Arch or its subsidiaries, subject to SPV and SPV
Holdings complying with the terms of the Limited Liability Company agreement of
SPV.
SECTION 4.11 OTHER BUSINESS. For a period of not less than three-hundred
sixty-six (366) days following satisfaction of all of the obligations under the
Loans, SPV shall not, and each of Arch and SPV Holdings shall cause SPV to not,
engage in any business other than the business purposes set forth in SPV's
Limited Liability Company Agreement as in effect on the date hereof.
SECTION 4.12 COMPLIANCE WITH SPV LIMITED LIABILITY COMPANY AGREEMENT. For a
period of not less than three-hundred sixty-six (366) days following
satisfaction of all of the obligations under the Loans (a) SPV shall, and each
of Arch and SPV Holdings shall cause SPV to, comply with, and not take any
action that is inconsistent with, any of the provisions, terms or obligations of
SPV's Limited Liability Company Agreement and (b) neither Arch nor SPV Holdings
shall take any action against SPV that could impair SPV's ability to comply with
the terms and obligations of SPV as set forth in SPV's Limited Liability Company
Agreement.
SECTION 4.13 PAYMENT OF UNDELIVERED LICENSE AMOUNT. Subject to the
limitations set forth in Section 1.08(b) of this Agreement, in the event that a
Restricted License cannot be Delivered, at Nextel's option, Nextel may require
Arch (to the extent Nextel requires the Undelivered License Amount to be paid in
shares of Series F Preferred Stock) and SPV to, and, in such event, Arch and SPV
23
Holdings shall cause SPV to, pay to Nextel an amount that is equal to the
Undelivered License Amount. In the event that Nextel requires the payment of the
Undelivered License Amount as contemplated in this Section 4.13 and in Section
1.08(b), SPV and/or Arch, as applicable, shall pay the Undelivered License
Amount to Nextel by, at Nextel's option, (1) using any remaining portion of the
Five Million Dollars ($5,000,000) required to be retained by SPV pursuant to the
terms of the Unsecured Note and/or (2) issuing a number of shares of Series F
Preferred Stock having an aggregate initial liquidation preference (subject to
adjustment in the event of stock dividends, stock splits and other
recapitalization events) equal to such Restricted License value. Notwithstanding
anything in this Section 1.08(b) to the contrary, the parties agree that in the
event that the failure to Deliver a Restricted License also gives Nextel a right
to indemnification from Arch, PageNet SMR, SPV Holdings or SPV under Section
5.05 of this Agreement, Nextel shall be entitled to receive the greater of the
Undelivered License Amount and the Costs (as defined herein) to which it is
entitled under Section 5.05 of this Agreement arising from the failure to
Deliver a Restricted License; provided, however, that in no event shall Nextel
be entitled to receive both the Undelivered License Amount and the indemnifiable
Costs to which it is entitled under Section 5.05 of this Agreement for the
failure to deliver a Restricted License.
SECTION 4.14 LIMITATIONS ON ACTIONS WITH RESPECT TO SERIES F PREFERRED
STOCK. Until such time as Nextel, or a designee of Nextel, is transferred all of
the shares of Series F Preferred Stock to which it is entitled as contemplated
by this Agreement, the Secured Note, the Unsecured Note, the Preferred Stock
Purchase Agreement and the Series F Preferred Stock Assignment and Assumption
Agreement (as defined herein), (1) Arch shall not take any of the actions set
forth in Section 4(b) of the Certificate of Designations without the prior
written consent of Nextel and (2), with respect to any other action or matter
under the Certificate of Designations that must be approved or voted upon by the
holders of the Series F Preferred Stock, or to which any of the holders of the
Series F Preferred Stock have a right to approve or vote upon, none of Arch, SPV
Holdings, or SPV shall exercise, or cause to be exercised, such approval or
voting right without the prior written consent of Nextel.
ARTICLE 5 JOINT COVENANTS
SECTION 5.01 CONFIDENTIALITY. Except (i) for any governmental filing
required in order to complete the transactions contemplated herein; and (ii) as
Nextel, Arch, PageNet SMR and SPV may agree or consent in writing, all
information received by Arch, PageNet SMR, SPV Holdings, SPV and Nextel and
their respective representatives pursuant to the terms of this Agreement shall
be subject to the terms of the Confidentiality Agreement dated December 15, 2000
between NCI and Arch; provided, however, Arch, PageNet SMR, SPV Holdings and SPV
shall also be required to maintain confidential all information of such entities
related to the Purchased Assets with respect to which NCI has a confidentiality
obligation; and provided, further, notwithstanding any other provision of such
Confidentiality Agreement to the contrary, Nextel may disclose any information
disclosed by Arch, PageNet SMR, SPV Holdings or SPV relating to the Purchased
Assets or the transactions contemplated by this Agreement, so long as such
disclosure occurs after the Closing.
24
SECTION 5.02 SUBSTITUTE OF SUBSIDIARY. Nextel has the option to substitute
any wholly owned direct or indirect subsidiary of NCI for itself in connection
with this Agreement, provided that such substitution does not adversely affect
the interests of Arch, PageNet SMR or SPV and such substitution shall not
release Nextel of its obligations hereunder unless NCI elects to replace Nextel
in fulfilling Nextel's obligations hereunder. If Nextel makes such an election,
each reference to Nextel herein shall be deemed to refer to the new subsidiary
of NCI.
SECTION 5.03 ANTITRUST FILING. In connection with the transactions
contemplated by this Agreement, Arch, PageNet SMR, SPV Holdings, SPV and Nextel
(and, to the extent required, each of their affiliates) shall promptly (and in
any event within seven (7) calendar days hereof) file or cause to be filed any
reports, documents, filings or other data required to be filed by them,
respectively, pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
0000 (xxx "XXX Xxx") and the rules and regulations promulgated thereunder, and
each shall use its commercially reasonable efforts to respond as promptly as
practicable to all inquiries received for additional information or
documentation. Arch and Nextel shall each be responsible for fifty percent (50%)
of the filing fees to be paid in connection with the filing of notifications
under the HSR Act.
SECTION 5.04 SUPPORT OF TRANSACTIONS. Nextel, Arch, PageNet SMR, SPV
Holdings, SPV and their respective affiliates shall each (a) use his or its
commercially reasonable efforts to assemble, prepare and file any information
(and, as needed, to supplement such information) as may be reasonably necessary
to obtain as promptly as practicable all governmental and regulatory Consents
under Articles 8 and 9 required to consummate the transactions contemplated by
this Agreement; (b) exert his or its commercially reasonable efforts to obtain
all material Consents of third parties that Nextel, Arch, PageNet SMR, SPV
Holdings, SPV or their respective affiliates are responsible for obtaining in
order to consummate the transactions contemplated by this Agreement; (c) take
such other action as may reasonably be necessary or as another party may
reasonably request to satisfy the conditions of Articles 8 and 9 or otherwise to
comply with this Agreement; and (d) provide the other parties, and such other
party's employees, officers, accountants, lawyers, financial advisors and other
representatives with access to its personnel, properties, business and records
under all reasonable circumstances.
SECTION 5.05 INDEMNIFICATION.
(a) Each of Arch, PageNet SMR, SPV Holdings and SPV covenants and
agrees, jointly and severally, to indemnify and save harmless Nextel and its
affiliates (including, without limitation, NCI) from and against any and all
claims, liabilities, costs, damages and expenses ("Costs") incurred by any of
such Persons caused by (i) any breach of the representations and warranties of
Arch, PageNet SMR, SPV Holdings or SPV contained in this Agreement; (ii) any
failure to observe or perform any covenant or other agreement, on the part of
Arch, PageNet SMR, SPV Holdings, SPV or their affiliates contained in this
Agreement, provided that the failure to Deliver any License, in and of itself,
shall not be deemed to be a failure to observe or perform any covenant or
agreement hereunder; (iii) any of the Excluded Liabilities (including, without
limitation, liabilities associated with Management Agreements that are not
Assumed Management Agreements and any and all liabilities (including successor
25
liabilities), or obligations that are not otherwise Assumed Liabilities relating
to periods prior to the closing of the purchase and sale of Purchased Assets
resulting from Arch Group's operation, ownership, use or sale of such Purchased
Assets); (iv) any claim or finders fee or brokerage or other commission arising
by reason of any services alleged to have been rendered to or at the insistence
of any member of the Arch Group with respect to this Agreement or any of the
transactions contemplated hereby; (v) any and all actions, suits, proceedings,
claims, demands, assessments, judgments, costs and expenses, including, without
limitation, attorneys' fees and court costs and expenses incident to any of the
foregoing or incurred in investigating or attempting to avoid the same or to
oppose the imposition thereof, or in enforcing this indemnity; and (vi) any
failure to comply with the laws of any jurisdiction relating to bulk transfers
that may be applicable in connection with the transfer of the Purchased Assets
to Nextel or its designee. Subject to Section 5.05(d) hereof, Nextel shall, at
its discretion, have the right to determine from which entity (i.e., Arch,
PageNet SMR, SPV Holdings and/or SPV), that Nextel or any other indemnified
party under this Section 5.05(a) is entitled to seek indemnification from under
this Section 5.05(a) and each of Arch, PageNet SMR and SPV Holdings hereby waive
any right of subrogation, contribution or other claim that such entity may have
against SPV and Arch and PageNet SMR hereby waive any right of subrogation,
contribution or other claim that Arch or PageNet SMR may have against SPV
Holdings with respect to any Costs or other obligations for which it is
responsible for under this Section 5.05(a).
(b) Nextel covenants and agrees to indemnify and save harmless SPV and
its affiliates (including, without limitation, Arch, PageNet SMR and SPV
Holdings) from and against any and all Costs incurred by any such Persons caused
by (i) any breach of the representations and warranties of Nextel contained in
this Agreement; (ii) any failure to observe or perform any covenants or other
agreement on the part of Nextel contained in this Agreement; (iii) any executory
obligations under any Assumed Management Agreement relating to the period
subsequent to the date of the closing at which such Assumed Management Agreement
is assigned to, and assumed by, Nextel; (iv) Nextel's operation, ownership, use
or sale of Purchased Assets during the period subsequent to the date of the
closing at which such Purchased Assets are acquired by Nextel; (iv) any claim or
finder's fee or brokerage or other commission arising by reason of any services
alleged to have been rendered to or at the insistence of Nextel with respect to
this Agreement or any of the transactions contemplated hereby; and (v) any and
all actions, suits, proceedings, claims, demands, assessments, judgments, costs
and expenses, including, without limitation, attorneys' fees and court costs and
expenses incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof.
(c) The obligations of any indemnifying party under this Section 5.05
with respect to Costs resulting from the assertion of liability by third parties
(each, as the case may be, a "Third-Party Claim"), will be subject to the
following terms and conditions:
(i) Any party against which any Third-Party Claim is asserted will
give the party or parties required to provide indemnity hereunder written notice
of any such Third-Party Claim promptly after learning of such Third-Party Claim,
and any indemnifying party may at its option undertake the defense thereof by
representatives of its own choosing. Failure to give prompt notice of a
Third-Party Claim hereunder shall not affect any indemnifying party's
26
obligations under this Section 5.05, except to the extent any such indemnifying
party is materially prejudiced by such failure to give prompt notice. If all or
any indemnifying party or parties, within thirty (30) days after notice of any
such Third-Party Claim, or such shorter period as is reasonably required, fails
to assume the defense of such Third-Party Claim, the indemnified party shall
have the sole right thereafter to undertake the defense, compromise or
settlement of such Third-Party Claim on behalf of and for the account and risk,
and at the expense, of the indemnifying party or parties, as the case may be;
and
(ii) Anything in this Section 5.05 to the contrary notwithstanding,
the indemnifying party or parties shall not enter into any settlement or
compromise of any action, suit or proceeding or consent to the entry of any
judgment (A) which does not include as an unconditional term thereof the
delivery by the claimant to the indemnified party of a written release from all
liability in respect of such action, suit or proceeding, or (B) for other than
monetary damages without the prior written consent of the indemnified party,
which consent shall not be unreasonably withheld.
(d) Nextel agrees that any indemnification obligation of Arch, PageNet
SMR, SPV Holdings or SPV that results from facts, circumstances, breaches or
violations that preclude any License from being a Delivered License under this
Agreement (other than a Third Party Claim) shall be equal to the applicable
License value as determined pursuant to Section 1.06 (for these purposes
treating such License as a Restricted License), plus the Costs of defending a
Third-Party Claim if such claim shall form the basis for seeking such
indemnification. Nextel further agrees that any indemnification obligation of
Arch, PageNet SMR, SPV Holdings or SPV with respect to this Section 5.05, other
than those arising out of fraud or willful and voluntary breaches of the
Agreement, shall be satisfied solely and exclusively, at Nextel's option, (a)
with any remaining portion of the Five Million Dollars ($5,000,000) required to
be retained by SPV pursuant to the terms of the Unsecured Note and (b) by the
issuance of a number of shares of Series F Preferred Stock by Arch equal to the
quotient obtained by dividing (x) the amount of such indemnification obligation
by (y) the $100 initial liquidation price of the Series F Preferred Stock
(subject to adjustment in the event of stock dividends, stock splits and other
recapitalization events); provided that no fractional shares of Series F
Preferred Stock shall be issued and instead Arch shall pay cash in lieu of such
fractions, determined based on the $100 initial liquidation price of the Series
F Preferred Stock, for such fractional shares.
(e) Arch, PageNet SMR, SPV Holdings and SPV agree that notwithstanding
the foregoing, no entity other than SPV shall have a right to seek any
indemnification against Nextel until all of the principal, interest and other
amounts owing under the Loans have been satisfied in full and in no event may
any indemnification be sought by SPV from Nextel beyond SPV's right to set off
against the Loans until all of the principal, interest and other amounts owing
under the Loans have been satisfied in full. Once all of the principal, interest
and other amounts owing under the Loans have been satisfied in full, Arch,
PageNet SMR, SPV Holdings and SPV further agree that any indemnification
obligation of Nextel with respect to this Section 5.05 shall be satisfied solely
and exclusively, as follows: First, with up to Five Million Dollars ($5,000,000)
in cash and Second, to the extent permitted by applicable securities laws, by
Nextel transferring to the indemnified party such number of shares of Series F
27
Preferred Stock, if any, that it has obtained under the terms of this Agreement,
the Secured Note or the Unsecured Note equal to the quotient obtained by
dividing (x) the amount of such indemnification obligation by (y) the $100
initial liquidation price of the Series F Preferred Stock (subject to adjustment
in the event of stock dividends, stock splits and other recapitalization
events).
(f) The right to bring a claim for breach of the representations and
warranties set forth in this Agreement shall survive for a period of eighteen
(18) months following the date of the last Subsequent Closing, except for
Arch's, PageNet SMR's, SPV Holdings' and SPV's representations and warranties
contained in Sections 2.10 and 2.13, each of which shall survive until six (6)
months after the expiration of the relevant statute of limitations, or any
extensions thereof. The right to bring a claim for breach of any covenant or
agreement in this Agreement will survive the Closing in accordance with its
terms.
SECTION 5.06 FCC APPROVAL. Each party covenants and agrees to use diligent
and commercially reasonable efforts to obtain, as promptly as possible, the
consent of the FCC to the assignment of the Licenses to Nextel and/or its
designee(s). SPV shall cause to be prepared and provided to Nextel not more than
seven (7) days following the Signing Date, and on or before the later of (A)
January 31, 2001 and (B) two (2) business days after the delivery to Nextel by
SPV or FCC counsel for SPV, of completed and signed FCC forms and any other
documents and applications that are necessary or advisable to obtain FCC consent
to the assignment of the Licenses to Nextel or one or more designees of Nextel,
Nextel shall complete its portion of such forms and return them and any required
documents and applications to SPV. SPV shall, not less than two (2) business
days following the Funding Date, file or shall cause to be filed, executed
copies of such forms and other documents and applications with the FCC. Each
party shall (i) promptly deliver to the others any notice or inquiry received by
it from the FCC with respect to any of the Licenses, (ii) cooperate with the
other party in formulating a response to any such notice or inquiry and (iii)
promptly file with the FCC a response to such notice or inquiry that is
reasonably acceptable to each party. Arch and Nextel shall each be responsible
for fifty percent (50%) of the FCC filing fees associated with filing of
applications for the assignment of the Purchased Assets from SPV to Nextel
and/or Nextel's designees. Each member of the Arch Group shall not make any
filing, and shall withdraw, or cause to be withdrawn, any of their respective
filings, with the FCC that make any objection or opposition to positions taken
by or on behalf of Nextel or any of its affiliates to the extent that any such
filings would reasonably be expected to adversely affect the Licenses or the
transactions contemplated hereunder, the Transaction Documents or any Consents
from the FCC.
SECTION 5.07 MARKETING ALLIANCE AGREEMENT. Nextel and Arch shall use their
commercially reasonable efforts to enter into a marketing agreement on or before
the Closing Date that will be mutually acceptable to both Nextel and Arch.
SECTION 5.08 EXCLUSIVE REMEDIES. Nextel, Arch, PageNet SMR, SPV Holdings
and SPV acknowledge that, in view of the uniqueness of the transactions
contemplated by this Agreement, a material breach or material failure to comply
with the terms and obligations of Sections 1.01, 1.02, 1.03, 1.04, 1.06, 1.08,
4.01, 4.02, 4.03, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14,
5.01, 5.03 and 5.04 and 5.06 of this Agreement would cause irreparable harm to
28
the parties for which there would not be an adequate remedy at law for money
damages. Therefore, Nextel, Arch, PageNet SMR, SPV Holdings and SPV agree that
the parties are entitled to seek specific performance and/or injunctive relief
without the posting of bond or other security in addition to any other remedy to
which it may be entitled hereunder or at law or in equity, in any court of
competent jurisdiction for any breach or noncompliance of such sections of this
Agreement. Other than such equitable relief with respect to the breach or
noncompliance of the sections of this Agreement described above, and except for
the rights of Nextel, Arch or any of their respective affiliates under the
Transaction Documents (as defined herein), the rights to indemnification under
this Article 5 shall be the exclusive remedy under this Agreement for each of
Nextel, Arch, PageNet SMR, SPV Holdings and SPV with respect to any claim for
relief or any other remedy, including, without limitation for Costs, and none of
Nextel, Arch, PageNet SMR, SPV Holdings or SPV nor any of their respective
affiliates or any Persons claiming by or through them shall be entitled to
pursue, and each hereby expressly waives as of the Closing, any and all other
rights that may be otherwise available to them in respect of any such claim.
ARTICLE 6 FUNDING
SECTION 6.01 DOCUMENTS TO BE DELIVERED BY ARCH, PAGENET SMR, SPV HOLDINGS
OR SPV.
On or prior to the Funding Date, Arch, PageNet SMR, SPV Holdings or SPV
shall deliver to Nextel:
(a) Copies of (i) the resolutions of the Boards of Directors of Arch,
and resolutions of the Boards of Directors and stockholders of PageNet SMR and
SPV Holdings and the resolutions of the sole member and directors of SPV,
authorizing and approving this Agreement and all other transactions and
agreements contemplated hereby; (ii) Arch's, PageNet SMR's and SPV Holdings'
Certificate of Incorporation and SPV's Certificate of Formation; and (iii)
Arch's, PageNet SMR's and SPV Holdings' By-Laws, and SPV's Limited Liability
Company Agreement, all certified by its respective Secretary or Assistant
Secretary, or with respect to SPV's Certificate of Formation and Limited
Liability Company Agreement, by SPV's Secretary, to be true, correct, complete
and in full force and effect and unmodified as of the Funding Date;
(b) Opinions, dated as of the Funding Date, of counsel to Arch,
PageNet SMR, SPV Holdings and SPV, in the forms attached as Exhibit I, Exhibit
J, Exhibit K, Exhibit L, Exhibit M and Exhibit N hereto;
(c) Copies of all Consents, including, without limitation, the Bank
Consents and the Series C Consent, required for the transfer or assignment to
Nextel of each Purchased Asset to be acquired at the Closing, but excluding any
Consents required by the FCC, under the HSR Act or under the Assumed Management
Agreements;
(d) Executed UCC Financing Statements, in forms reasonably
satisfactory to Nextel, to evidence release of all security interests in the
Purchased Assets;
29
(e) The Secured Note, the Unsecured Note, the Security Agreement, the
Guaranty, the Preferred Stock Purchase Agreement, the Bank Agency Agreement to
be entered into in connection with the Security Agreement, the Collateral
Assignment of Sums Due under Preferred Stock Purchase Agreement to be entered
into in connection with the Security Agreement, and the Registration Rights
Agreement to be entered into in connection with the Preferred Stock Purchase
Agreement ("Registration Rights Agreement") in the form attached as Exhibit O
hereto (collectively, the "Transaction Documents") executed by each of Arch,
PageNet SMR, SPV Holdings and SPV to the extent that it is a party thereto;
(f) Executed UCC-1 Financing Statements, in forms reasonably
satisfactory to Nextel, to perfect Nextel's security interest in the membership
interests in SPV as security under the Guaranty, the certificate representing
750,000 shares of Series F Preferred Stock purchased under the Preferred Stock
Purchase Agreement, together with executed UCC-1 Financing Statements, in forms
reasonably satisfactory to Nextel, to perfect Nextel's security interest in the
Series F Preferred Stock as security under the Security Agreement, and such
other items necessary to perfect Nextel's interest under the Guaranty and the
Security Agreement;
(g) The certificates required by Section 8.02(b);
(h) Evidence of the assignment of the Licenses by PageNet SMR to SPV,
which shall be deemed satisfied by delivery of a copy of the executed Asset
Purchase Agreement by and between PageNet SMR and SPV in the form attached as
Exhibit P hereto together with a Xxxx of Sale and General Assignment in the form
attached as Exhibit Q hereto, each certified by the secretary of PageNet SMR as
assignor, and copies of the completed qualifying post-consummation notification
or notifications of a "non-substantial (pro forma) transfer or assignment" for
the assignment of the Licenses to SPV not requiring advance approval under the
standards of Section 1.948(c)(1) of the Communications Act, 47 CFR ss.
1.948(c)(1), together with a complete copy of all such notifications (including
any FCC Form 603 filings) and any amendments or supplements thereto required to
be submitted in connection therewith;
(i) Completed and signed FCC forms and any other documents and
applications as required to be delivered under Section 5.06 of this Agreement
that are necessary or advisable to obtain FCC consent to the assignment of the
Licenses to Nextel or one or more designees of Nextel;
(j) The Certificate of Designations, Preferences and Relative,
Participating, Optional or Other Special Rights of the Series F Preferred Stock
in the form of Exhibit R (the "Certificate of Designations"), certified by the
Secretary of State of the State of Delaware, dated not more than one (1) day
prior to the Funding Date;
(k) Long-form good standing certificates for each of Arch, PageNet SMR
and SPV Holdings from Delaware and for PageNet SMR and SPV Holdings from the
states in which each of PageNet SMR and SPV Holdings is qualified to do business
as a foreign corporation and long-form good standing certificates for SPV from
Delaware and the states in which SPV is qualified to do business as a foreign
limited liability company, dated not more than ten (10) days prior to Funding
Date; and
30
(l) Short-form good standing certificates for each of Arch, PageNet
SMR and SPV Holdings from Delaware and for PageNet SMR and SPV Holdings from the
states in which each of PageNet SMR and SPV Holdings is qualified to do business
as a foreign corporation and short-form good standing certificates for SPV from
Delaware and the states in which SPV is qualified to do business as a foreign
limited liability company, dated not more than one (1) day prior to Funding
Date.
SECTION 6.02 DOCUMENTS TO BE DELIVERED BY NEXTEL. On the Funding Date
Nextel shall deliver to SPV:
(a) A copy of (i) the resolutions of the Board of Directors of Nextel
authorizing and approving this Agreement and all other transactions and
agreements contemplated hereby; (ii) Nextel's Certificate of Incorporation; and
(iii) Nextel's By-Laws, all certified by its Secretary or an Assistant Secretary
to be true, correct, complete and in full force and effect and unmodified as of
the Funding Date;
(b) The Transaction Documents to which USFC is a party;
(c) The certificates required by Section 8.03(b);
(d) Seventy-Five Million Dollars ($75,000,000) shall have been paid to
SPV under the Unsecured Loan; and
(e) One Hundred Seventy-Five Million Dollars ($175,000,000) shall have
been paid to SPV under the Secured Note.
ARTICLE 7 CLOSING
SECTION 7.01 DOCUMENTS TO BE DELIVERED BY ARCH, PAGENET SMR, SPV HOLDINGS
OR SPV.
At the Closing and at any Subsequent Closing, as the case may be, Arch,
PageNet SMR, SPV Holdings or SPV shall deliver to Nextel:
(a) Copies of (i) the resolutions of the Boards of Directors of Arch,
and resolutions of the Boards of Directors and stockholders of PageNet SMR and
SPV Holdings and the resolutions of the sole member and directors of SPV,
authorizing and approving this Agreement and all other transactions and
agreements contemplated hereby; (ii) Arch's, PageNet SMR's and SPV Holdings'
Certificate of Incorporation and SPV's Certificate of Formation; and (iii)
Arch's, PageNet SMR's and SPV Holdings' By-Laws, and SPV's Limited Liability
Company Agreement, all certified by its respective Secretary or Assistant
Secretary, or with respect to SPV's Certificate of Formation and Limited
Liability Company Agreement, by SPV's Secretary, to be true, correct, complete
and in full force and effect and unmodified as of such closing;
31
(b) The agreement pursuant to which SPV will assign to Nextel all of
its rights under the Series F Stock Purchase Agreement in the form attached
hereto as Exhibit S (the "Series F Preferred Stock Assignment Agreement")
executed by Arch and SPV to the extent that at such closing shares of Series F
Preferred Stock are being transferred to Nextel as contemplated by the
Transaction Documents, unless delivered at a previous Closing;
(c) A Xxxx of Sale and General Assignment in the form of Exhibit E
hereto transferring the Purchased Assets to be acquired at such closing to
Nextel, free and clear of any and all Liens, except Permitted Liens and Assumed
Management Agreements, if any;
(d) One or more assignment and assumption agreements (the "Assignment
and Assumption Agreements"), executed by Arch, PageNet SMR, SPV Holdings, or
such other assigning party, assigning to Nextel any Assumed Management
Agreements that are assigned to Nextel hereunder at such closing, with copies of
such Assumed Management Agreements, or originals if available, attached thereto;
(e) An opinion, dated as of each such closing, of counsel to Arch,
PageNet SMR, SPV Holdings and SPV, addressed to Nextel, in the form of Exhibit
T;
(f) Bring-down opinions, dated as of such closing, of counsel to Arch,
PageNet SMR, SPV Holdings and SPV reasonably satisfactory to Nextel,
bringing-down (i) if on such closing any of the obligations under the Secured
Loans remain outstanding, the opinions set forth in paragraph 4 of the opinion
set forth in Exhibit N and (ii) if on such closing any of the obligations under
the Unsecured Loans remain outstanding, the opinions set forth in paragraph 4 of
the opinion set forth in Exhibit N.
(g) Copies of all Consents required to the transfer or assignment to
Nextel of each Purchased Asset to be acquired at such closing, including,
without limitation, FCC Final Orders, approvals or expiration of waiting periods
under the HSR Act and consents from third parties to the assignment and
assumption of the Assumed Management Agreements, if any;
(h) The certificates required by Section 9.02(c);
(i) The Certificate of Designations, certified by the Secretary of
State of the State of Delaware, dated not more than one (1) day prior to such
closing;
(j) Long-form good standing certificates for each of Arch, PageNet SMR
and SPV Holdings from Delaware and for PageNet SMR and SPV Holdings from the
states in which each of PageNet SMR and SPV Holdings is qualified to do business
as a foreign corporation and long-form good standing certificates for SPV from
Delaware and the state in each jurisdiction in which SPV is qualified to do
business as a foreign limited liability company, dated not more than ten (10)
days prior to such closing;
(k) Short-form good standing certificates for each of Arch, PageNet,
SMR and SPV Holdings from Delaware and for PageNet SMR and SPV Holdings from the
states in which each of PageNet SMR and SPV Holdings is qualified to do business
32
as a foreign corporation and short-form good standing certificates for SPV from
Delaware and the states in which SPV is qualified to do business as a foreign
limited liability company, dated not more than one (1) day prior to such
closing; and
(l) Such other deeds, bills of sale, endorsements, assignments,
affidavits, and other good and sufficient instruments of sale, assignment,
conveyance and transfer in form and substance reasonably satisfactory to Nextel
and its counsel, as are required to effectively vest in Nextel and/or its
designee good and marketable title in and to, and evidence that Nextel and/or
its designee validly and lawfully holds, all of the Purchased Assets to be
acquired at such closing, free and clear of any and all Liens except Permitted
Liens and Assumed Management Agreements, if any.
SECTION 7.02 DOCUMENTS TO BE DELIVERED BY NEXTEL. At the Closing and at any
Subsequent Closing, as the case may be, Nextel shall deliver to SPV:
(a) A copy of (i) the resolutions of the Board of Directors of Nextel
authorizing and approving this Agreement and all other transactions and
agreements contemplated hereby; (ii) Nextel's Certificate of Incorporation; and
(iii) Nextel's By-Laws, all certified by its Secretary or an Assistant Secretary
to be true, correct, complete and in full force and effect and unmodified as of
the Closing Date;
(b) One (1) or more counterparts of the Assignment and Assumption
Agreement, executed by Nextel and delivered by Arch, PageNet SMR, SPV Holdings
or such other assigning party to Nextel at such closing;
(c) The Series F Preferred Stock Assignment Agreement executed by
Nextel to the extent that at such closing shares of Series F Preferred Stock are
being transferred to Nextel as contemplated by the Transaction Documents;
(d) Executed UCC Financing Statements to evidence release of all
security interests in any shares of Series F Preferred Stock and Purchased
Assets to be transferred to Nextel at such closing;
(e) The certificate required by Section 9.03(b); and
(f) The agreement of Nextel satisfying such portion of the One Hundred
Seventy-Five Million Dollars ($175,000,000) in principal and accrued interest
under the Secured Loan as payment of the Purchase Price for the Purchased Assets
to be acquired at such closing.
ARTICLE 8 CONDITIONS TO FUNDING OBLIGATIONS
SECTION 8.01 CONDITIONS TO OBLIGATIONS OF NEXTEL, ARCH, PAGENET SMR, SPV
HOLDINGS AND SPV WITH RESPECT TO FUNDING. The obligations of Nextel, Arch,
PageNet SMR, SPV Holdings and SPV to fund the Loans and execute and deliver the
Transaction Documents to which it is a party on the Funding Date are subject to
the satisfaction of the following conditions, any one or more of which may be
waived in writing by such parties:
33
(a) Arch, PageNet SMR, SPV Holdings and SPV shall have received the
Bank Consents and the Series C Consent, which shall represent (specifically
excluding FCC Consents and approvals under the HSR Act and any Consents required
to assign the Assumed Management Agreements) all necessary Consents required to
be procured by Nextel, Arch, PageNet SMR, SPV Holdings or SPV in connection with
the transactions contemplated by this Agreement.
(b) There shall not be in force any order or decree, statute, rule or
regulation nor shall there be on file any complaint by a governmental agency
seeking an order or decree, restraining, enjoining or prohibiting the
consummation of the transactions contemplated by this Agreement, and none of
Nextel, Arch, PageNet SMR, SPV Holdings or SPV, shall have received notice from
any governmental agency that it has determined to institute any suit or
proceeding to restrain or enjoin the consummation of the transactions
contemplated by this Agreement or to nullify or render ineffective this
Agreement if consummated, or to take any other action which would result in the
prohibition or material change in this Agreement.
SECTION 8.02 CONDITIONS TO OBLIGATIONS OF NEXTEL WITH RESPECT TO FUNDING.
The obligations of Nextel to fund the Loans and execute and deliver the
Transaction Documents to which it is a party on the Funding Date are subject to
the satisfaction of the following additional conditions, any one or more of
which may be waived in writing by Nextel:
(a) On the Funding Date, each of the representations and warranties of
Arch, PageNet SMR, SPV Holdings and SPV contained in this Agreement and the
Transactional Documents shall be true and correct in all material respects both
on the Signing Date and as of the Funding Date, as if made anew at and as of
that time (except for those that speak only as of a specific date or dates,
which shall be true and correct in all material respects on such date or dates),
and each of the covenants and agreements of Arch, PageNet SMR, SPV Holdings and
SPV to be performed in all material respects as of or prior to the Funding Date
shall have been duly performed, except in each case for changes after the
Signing Date which are contemplated or expressly permitted by this Agreement.
(b) Each of Arch, PageNet SMR, SPV Holdings and SPV shall have
delivered to Nextel a certificate signed by its President, dated the Funding
Date, certifying, that, to the Knowledge of such officer, the conditions
specified in Section 8.01 as they relate to Arch, PageNet SMR, SPV Holdings or
SPV, as the case may be, and in Subsection 8.02(a) have been fulfilled.
(c) At the Funding Date SPV shall hold good and marketable title in
and to, and shall validly and lawfully hold, the Purchased Assets to be acquired
by Nextel and/or its designee, free and clear of all Liens, except Permitted
Liens and the Management Agreements.
(d) Nextel shall have received from SPV all of the deliveries provided
for in Section 6.01.
(e) As of the Funding Date, none of Arch, PageNet SMR, SPV Holdings or
SPV has declared, or otherwise taken any action that would result in, its
voluntary Bankruptcy. As of the Funding Date, no involuntary Bankruptcy action
34
or proceeding has been filed or, to the Knowledge of the Arch Group, is
threatened against any of Arch, PageNet SMR, SPV Holdings or SPV and since the
Signing Date, no event has occurred and none of Arch, PageNet SMR, SPV Holdings
or SPV has taken any action that would result in its involuntary Bankruptcy.
SECTION 8.03 CONDITIONS TO THE OBLIGATIONS OF ARCH, PAGENET SMR, SPV
HOLDINGS AND SPV WITH RESPECT TO THE FUNDING. The obligation of Arch, PageNet
SMR, SPV Holdings and SPV to execute and deliver the Transaction Documents to
which it is a party on the Funding Date is subject to the satisfaction of the
following additional conditions, any one or more of which may be waived in
writing by Arch, PageNet SMR, SPV Holdings or SPV:
(a) On the Funding Date, each of the representations and warranties of
Nextel contained in this Agreement shall be true and correct in all material
respects both on the Signing Date and as of the Funding Date, as if made anew at
and as of that time, and each of the covenants and agreements of Nextel to be
performed as of or prior to the Funding Date shall have been duly performed in
all material respects, except in each case for changes after the Signing Date
which are contemplated or expressly permitted by this Agreement.
(b) Nextel shall have delivered to SPV a certificate signed by an
officer of Nextel, dated the Funding Date, certifying, in form reasonably
satisfactory to SPV and its counsel, to the effect that to the best of the
Knowledge and belief of such officer, the conditions specified in Section 8.01
as they relate to Nextel and in subsection 8.03(a) have been fulfilled.
(c) SPV shall have received from Nextel all of the deliveries provided
for in Section 6.02.
ARTICLE 9 CONDITIONS TO CLOSING OBLIGATIONS
SECTION 9.01 CONDITIONS TO CLOSING OBLIGATIONS OF NEXTEL, ARCH, PAGENET
SMR, SPV HOLDINGS AND SPV. The obligations of Nextel, Arch, PageNet SMR, SPV
Holdings and SPV to consummate, or cause to be consummated, the transactions
contemplated by this Agreement at the Closing or any Subsequent Closing, as the
case may be, are subject to the satisfaction of the following conditions, any
one or more of which may be waived in writing by such parties:
(a) All waiting periods under the HSR Act and the regulations
promulgated thereunder applicable to the transactions contemplated by this
Agreement shall have expired or been terminated.
(b) All necessary Consents of governmental and regulatory authorities
required to be procured by Nextel, Arch, PageNet SMR, SPV Holdings or SPV in
connection with the transactions contemplated by this Agreement (including all
required FCC Consents, which shall be deemed to be obtained for purposes of this
Agreement only when they have become Final Orders), shall have been received.
(c) There shall not be in force any order or decree, statute, rule or
regulation nor shall there be on file any complaint by a governmental agency
35
seeking an order or decree, restraining, enjoining or prohibiting the
consummation of the transactions contemplated by this Agreement, and none of
Nextel, Arch, PageNet SMR, SPV Holdings or SPV, shall have received notice from
any governmental agency that it has determined to institute any suit or
proceeding to restrain or enjoin the consummation of the transactions
contemplated by this Agreement or to nullify or render ineffective this
Agreement if consummated, or to take any other action which would result in the
prohibition or material change in this Agreement.
SECTION 9.02 CONDITIONS TO CLOSING OBLIGATIONS OF NEXTEL. The obligations
of Nextel to consummate, or cause to be consummated, the transactions
contemplated by this Agreement are subject to the satisfaction of the following
additional conditions, any one or more of which may be waived in writing by
Nextel:
(a) (i) At the time of Closing, each of the representations and
warranties of Arch, PageNet SMR, SPV Holdings and SPV contained in this
Agreement shall be true and correct in all material respects on the Signing
Date, the Funding Date and as of the Closing, as if made anew at and as of that
time (except for those that speak only as of a specific date or dates, which
shall be true and correct in all material respects on such date or dates), and
each of the covenants and agreements of Arch, PageNet SMR, SPV Holdings and SPV
to be performed as of or prior to the Closing shall have been duly performed in
all material respects, except in each case for changes after the Signing Date
which are contemplated or expressly permitted by this Agreement; and (ii) at the
time of any Subsequent Closing, each of the representations and warranties of
Arch, PageNet SMR, SPV Holdings and SPV shall be true and correct in all
material respects as if made anew at and as of the time of such Subsequent
Closing, except as to each Subsequent Closing, no representation or warranty
shall be made as to any Purchased Asset sold to Nextel at the Initial Closing or
at any earlier Subsequent Closing.
(b) The Minimum License Condition (as defined in Section 1.08) shall
have been satisfied and, in the event of any Subsequent Closing, the Restricted
Licenses and associated Restricted Licenses to be purchased at such Subsequent
Closing shall have been "Delivered" as defined in Section 1.06(b).
(c) Each of Arch, PageNet SMR, SPV Holdings and SPV shall have
delivered to Nextel a certificate signed by its President, dated the Closing and
any Subsequent Closing, as the case may be, certifying, that, to the Knowledge
of such officer, the conditions specified in Section 9.01 as they relate to
Arch, PageNet SMR, SPV Holdings or SPV, as the case may be, and in Subsection
9.02(a) have been fulfilled.
(d) At the Closing and any Subsequent Closing, as the case may be, the
Purchased Assets to be acquired by Nextel and/or its designee at such closing
shall be free and clear of all Liens, except Permitted Liens and Assumed
Management Agreements, if any.
(e) Each of Arch, PageNet SMR, SPV Holdings and SPV shall have
complied with its obligations under each of the Transaction Documents to which
it is a party in all material respects and each of the Transaction Documents
shall remain in full force and effect.
36
(f) SPV shall have assigned to Nextel all of SPV's rights under the
Preferred Stock Purchase Agreement with respect to such shares of Series F
Preferred Stock, if any, transferred by SPV to Nextel at such closing.
(g) Nextel shall have received from SPV all of the deliveries provided
for in Section 7.01.
(h) Either (x) all applicable tax authorities shall have issued all
state and local tax clearances which are either required by law or otherwise
available and requested by Nextel (the "Tax Clearances"); or (y) the period
prescribed by the applicable state or local tax authorities for the issuance or
effectiveness of such Tax Clearances shall have elapsed from the date the Tax
Clearance requests.
SECTION 9.03 CONDITIONS TO THE CLOSING OBLIGATIONS OF ARCH, PAGENET SMR,
SPV HOLDINGS AND SPV. The obligation of Arch, PageNet SMR, SPV Holdings and SPV
to consummate the transactions contemplated by this Agreement is subject to the
satisfaction of the following additional conditions, any one or more of which
may be waived in writing by Arch, PageNet SMR, SPV Holdings or SPV:
(a) At the time of the Closing and any Subsequent Closing, as the case
may be, each of the representations and warranties of Nextel contained in this
Agreement shall be true and correct in all material respects on the Signing
Date, the Funding Date and as of such closing, as if made anew at and as of that
time, and each of the covenants and agreements of Nextel to be performed in all
material respects as of or prior to such closing shall have been duly performed,
except in each case for changes after the Signing Date which are contemplated or
expressly permitted by this Agreement.
(b) Nextel shall have delivered to SPV a certificate signed by an
officer of Nextel, dated the Closing or any Subsequent Closing, certifying, in
form reasonably satisfactory to SPV and its counsel, to the effect that to the
best of the Knowledge and belief of such officer, the conditions specified in
Section 9.01 as they relate to Nextel and in subsection 9.03(a) have been
fulfilled.
(c) Nextel shall have agreed to assume, to the extent Nextel is so
required, all of the obligations of SPV under the Preferred Stock Purchase
Agreement (other than liabilities relating to periods prior to the transfer of
shares of Series F Preferred Stock thereunder) with respect to such shares of
Series F Preferred Stock, if any, transferred by SPV to Nextel at such closing.
(d) In the event that Nextel has waived the Minimum License Condition
to Closing set forth in Section 9.02 of this Agreement, until the Minimum
License Condition has been satisfied, at the Initial Closing and with respect to
each Subsequent Closing, Nextel may not purchase a number of Licenses with an
aggregate value, as determined in accordance with Section 1.06 of this
Agreement, that is less than Twenty Five Million Dollars ($25,000,000), unless
37
the reason Nextel is unable to acquire Licenses with a value in excess of Twenty
Five Million Dollars ($25,000,000) is because of a breach by Arch, PageNet SMR,
SPV Holdings or SPV, in which case such Twenty Five Million Dollars
($25,000,000) limit shall not apply.
(e) SPV shall have received from Nextel all of the deliveries provided
for in Section 7.02.
(f) The Unsecured Note shall have been exchanged for Series F
Preferred Stock to the extent and in the manner provided for in the Unsecured
Note.
ARTICLE 10 TERMINATION/EFFECTIVENESS
SECTION 10.01 TERMINATION. This Agreement may be terminated and the
transactions contemplated hereby abandoned:
(a) By mutual written consent of the parties authorized by their
respective Boards of Directors, at any time prior to the Closing.
(b) Prior to the Funding Date by prior written notice of either Nextel
or Arch, PageNet SMR, SPV Holdings and SPV in the event that the Bank Consents
have not been delivered on or prior to February 14, 2001.
(c) Prior to the Closing, and with respect to the purchase and sale of
Restricted Licenses, prior to the Subsequent Closing at which such sale is
consummated, by written notice to Arch, PageNet SMR, SPV Holdings or SPV from
Nextel authorized by the Board of Directors of Nextel, if (i) there is a
material breach of any representation, warranty, covenant or agreement on the
part of Arch, PageNet SMR, SPV Holdings or SPV set forth in this Agreement, or
if a representation or warranty of Arch, PageNet SMR, SPV Holdings or SPV shall
be untrue in any material respect, in either case such that the conditions
specified in Sections 8.02(a) or 9.02(a) would not be satisfied at such Closing
or Subsequent Closing (a "Terminating SPV Breach"), except that, if such
Terminating SPV Breach is curable by Arch, PageNet SMR, SPV Holdings or SPV
through the exercise of its commercially reasonable efforts, then, for up to
thirty (30) days but only as long as Arch, PageNet SMR, SPV Holdings or SPV, as
the case may be, continues to exercise such commercially reasonable efforts,
Nextel may not terminate this Agreement under this Section 10.01(c)(i); (ii) any
Consent required for consummation of the transactions contemplated hereby is
denied by or in a final order or other final action issued or taken by the
appropriate governmental or regulatory authority, agency or similar body; or
(iii) consummation of any of the transactions contemplated hereby is enjoined,
prohibited or otherwise restrained by the terms of a final, non-appealable order
or judgment of a court of competent jurisdiction.
(d) Prior to the Funding Date by written notice to Nextel from Arch,
PageNet SMR, SPV Holdings and SPV authorized by their respective Boards of
Directors, if (i) there is a material breach of any representation, warranty,
covenant or agreement on the part of Nextel set forth in this Agreement, or if a
representation or warranty of Nextel shall be untrue in any material respect, in
either case such that the conditions specified in Sections 8.03(a) or 9.03(a)
would not be satisfied at the Funding Date (a "Terminating Nextel Breach"),
38
except that, if such Terminating Nextel Breach is curable by Nextel through the
exercise of its commercially reasonable efforts, then for up to thirty 30 days,
but only as long as Nextel continues to exercise such commercially reasonable
efforts, neither Arch, PageNet SMR, SPV Holdings nor SPV may terminate this
Agreement under this Section 10.01(d)(i); (ii) any Consent required for
consummation of the transactions contemplated hereby is denied by or in a final
order or other final action issued or taken by the appropriate governmental or
regulatory authority, agency or similar body; (iii) consummation of any of the
transactions contemplated hereby is enjoined, prohibited or otherwise restrained
by the terms of a final, non-appealable order or judgment of a court of
competent jurisdiction; or (iv) the failure of Nextel to make the Loans on or
before the 7th calendar day following the receipt of the Bank Consents and the
satisfaction of the other conditions precedent thereto.
(e) By written notice of Nextel, if the Initial Closing has not
occurred on or before January 24, 2002 (July 24, 2002, if the sole reason an
Initial Closing has not occurred is the failure to obtain any required Consent
from the FCC or under the HSR Act, provided that if the FCC has granted its
consent and approval to the assignment of the Licenses and no action, request
for stay, or timely petition for rehearing, reconsideration or approval is
pending, such date shall be extended until the time for filing any relevant
request, petition or appeal or for agency action to be taken on its own motion
has expired), provided, however, that the right to terminate pursuant to this
clause (e) shall not be available to Nextel if Nextel's breach of its
obligations under this Agreement has been the cause of, or has resulted in, the
failure of the Initial Closing to occur prior to such date.
SECTION 10.02 EFFECT. Any termination of this Agreement, however effected,
shall not release Nextel, Arch, PageNet SMR, SPV Holdings or SPV from any
liability or other consequences arising from any breach or violation by any such
party of the terms of this Agreement prior to the effective time of such
termination, nor shall any such termination release any party from its
obligations or duties under this Agreement which, by their terms and/or
expressed intent, may require performance subsequent to any such termination,
and all provisions of this Agreement which set forth such obligations or duties
(including, without limitation, Section 5.01 and, to the extent provided
therein, in Sections 5.03 (as to fees), 5.06 (as to fees) and 11.06) and such
other general or procedural provisions which may be relevant to any attempt to
enforce such obligations or duties, shall survive any such termination of this
Agreement until such obligations or duties shall have been performed or
discharged in full.
ARTICLE 11 MISCELLANEOUS
SECTION 11.01 WAIVER. Any party to this Agreement may, at any time prior to
the Initial Closing or any Subsequent Closing, by action taken by its Board of
Directors, or officers thereunto duly authorized, waive any of the terms or
conditions of this Agreement or agree to an amendment or modification to this
Agreement by an agreement in writing executed in the same manner (but not
necessarily by the same persons) as this Agreement.
Section 11.02 Notices. Except as otherwise specifically provided herein,
all notices, requests, consents, demands, waivers and other communications
39
hereunder and all statements, reports, documents, certificates and papers to be
delivered hereunder: (a) shall be in writing; (b) shall be delivered by hand,
mailed by United States registered or certified first class mail, postage
prepaid, sent by overnight courier (providing for delivery acknowledgement), or
sent by telegraph, telecopy, facsimile or telex; and (c) shall be addressed as
follows:
(a) If to Nextel, to:
Nextel Communications, Inc.
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(b) If to SPV, to:
AWI Spectrum Co., LLC
c/o Arch Wireless, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: J. Xxx Xxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
with copies (which shall not constitute notice) to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxx X. Xxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
40
and
Arch Wireless, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxx, Esq.
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(c) If to Arch, PageNet SMR or SPV Holdings, to:
Arch Wireless, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: J. Xxx Xxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
with copies (which shall not constitute notice) to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxx X. Xxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
and
Arch Wireless, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxx, Esq.
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
or to such other address or addresses as the parties may from time to time
designate in writing.
Any such notice or demand shall be deemed to have been duly given or made and to
have become effective (i) if delivered by hand, overnight courier or facsimile
to a responsible officer of the party to which it is directed, at the time of
the receipt thereof by or on behalf of such officer or the sending of such
facsimile, and (ii) if sent by registered or certified first-class mail, postage
41
prepaid, on the third (3rd) business day following the mailing thereof. The
parties hereby deem all notices sent by telecopy or facsimile original documents
and all signatures on such notices, originals.
SECTION 11.03 ASSIGNMENT. Except as provided in Section 5.02, no party
hereto shall assign this Agreement or any part hereof without the prior written
consent of the other parties. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective permitted successors and assigns.
SECTION 11.04 RIGHTS OF THIRD PARTIES. Nothing expressed or implied in this
Agreement is intended or shall be construed to confer upon or give any Person,
other than the parties hereto, or any subsidiary of Nextel joining this
Agreement under the circumstances described in Section 5.02, any right or
remedies under or by reason of this Agreement.
SECTION 11.05 RELIANCE. Each of the parties to this Agreement shall be
deemed to have relied upon the accuracy of the written representations and
warranties made to it in or pursuant to this Agreement, notwithstanding any
investigations conducted by or on its behalf or notice, Knowledge or belief to
the contrary.
SECTION 11.06 EXPENSES. Subject to Sections 5.03 and 5.06, relating to
certain filing fees to be shared by Arch and Nextel, the parties hereto shall
bear their own expenses incurred in connection with this Agreement and the
transactions herein contemplated whether or not such transactions shall be
consummated, including, without limitation, all fees of its legal counsel and
accountants.
SECTION 11.07 CONSTRUCTION. This Agreement shall be construed and enforced
in accordance with the laws of the State of New York, without application of its
conflict of laws principles. Unless otherwise stated, references to Sections,
Articles or Exhibits refer to the Sections, Articles and Exhibits to this
Agreement. As used in this Agreement, "Knowledge" as used with respect to a
Person (including references to such Person being aware of a particular matter)
shall mean those facts that are known or should reasonably have been known after
due inquiry by the chairman, president, chief executive officer, chief financial
officer, chief accounting officer, chief operating officer, general counsel, or
any other executive officer of such Person.
SECTION 11.08 CAPTIONS; COUNTERPARTS. The captions in this Agreement are
for convenience only and shall not be considered a part of or affect the
construction or interpretation of any provision of this Agreement. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
SECTION 11.09 ENTIRE AGREEMENT. This Agreement (together with the Schedules
to this Agreement and the agreements referenced herein) constitutes the entire
agreement among the parties and supersedes any other agreements, whether written
or oral, that may have been made or entered into by or among Nextel or its
subsidiaries and Arch, PageNet SMR, SPV Holdings or SPV or by any Director or
Directors or officer or officers of such parties relating to the transactions
42
contemplated hereby, or incident hereto. No representations, warranties,
covenants, understandings, agreements, oral or otherwise, relating to the
transactions contemplated by this Agreement exist between the parties except as
expressly set forth in this Agreement and the agreements referenced herein.
SECTION 11.10 AMENDMENTS. This Agreement may be amended or modified in
whole or in part, only by a duly authorized agreement in writing executed in the
same manner as this Agreement and which makes reference to this Agreement.
SECTION 11.11 PUBLICITY. All press releases or other public communications
of any nature whatsoever relating to the transactions contemplated by this
Agreement, and the method of the release for publication thereof, shall be
subject to the prior mutual approval of Nextel and Arch, PageNet SMR, SPV
Holdings or SPV which approval shall not be unreasonably withheld or delayed by
any party; provided, however, that, subject to compliance with Section 5.01,
nothing herein shall prevent any party from publishing such press releases or
other public communications as such party may consider necessary in order to
satisfy such party's legal or contractual obligations.
* * * * *
43
IN WITNESS WHEREOF the parties have hereunto caused this Agreement to be
duly executed as of the date first above written.
UNRESTRICTED SUBSIDIARY FUNDING COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Title: President
------------------------------
ARCH WIRELESS, INC.
By: /s/ C. Xxxxxx Xxxxx, Xx.
------------------------------------
Title: Chairman of the Board and
------------------------------
Chief Executive Officer
------------------------------
PAGENET SMR SUB, INC.
By: /s/ C. Xxxxxx Xxxxx, Xx.
------------------------------------
Title: Chief Executive Officer
------------------------------
AWI SPECTRUM CO. HOLDINGS, INC.
By: /s/ C. Xxxxxx Xxxxx, Xx.
------------------------------------
Title: Chief Executive Officer
------------------------------
AWI SPECTRUM CO., LLC
By: /s/ J. Xxx Xxxxxx
------------------------------------
Title: Treasurer
------------------------------
