ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into as of the 20th day of August, 1998
by and between OHIO WIRELESS COMMUNICATIONS, L.L.C., a Delaware limited
liability company ("Seller"), certain Interest Holders of Seller (the "Interest
Holders"), and XXXXXX CELLULAR OF SANDUSKY, INC., an Oklahoma corporation
("Purchaser").
R E C I T A L S
WHEREAS, Seller is the owner of that certain license (the "FCC
Authorization") granted by the Federal Communications Commission (the "FCC") to
provide non-wireline cellular telecommunications service in RSA 2 (the "RSA")
#586 in Sandusky, Ohio (the "Cellular System");
WHEREAS, Seller owns all rights to develop, construct, own and operate the
Cellular System in the RSA (the "Business");
WHEREAS, the Interest Holders own all of the economic interests in Seller,
either as Members or as holders of only economic interests; and
WHEREAS, Purchaser desires to purchase from Seller, and Seller and the
Interest Holders desire to sell to Purchaser, substantially all of the assets of
Seller relating to the Business, including assets acquired by Seller after the
date hereof until the Primary Closing Date, all subject to the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements herein set forth and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto hereby
agree as follows:
ARTICLE I
PURCHASE AND SALE
Except as otherwise provided and subject to the terms and conditions set
forth in this Agreement, Seller agrees to sell, convey, assign, transfer and
deliver to Purchaser, and Purchaser agrees to purchase from Seller at the
Primary Closing, all of Seller's right, title and interest in and to the Assets
(as defined in Section 2.01 hereof), free and clear of all security interests,
liens, pledges, charges, rights of third parties and encumbrances of every kind
(collectively, "Liens") other than Permitted Liens. As used herein, the term
"Permitted Liens" means (i) any Lien for taxes and assessments not yet past due,
(ii) any Liens represented by easements, rights of way, restrictions,
installations or public utilities, title imperfections and restrictions,
reservations in land patents, zoning ordinances or other similar Liens which do
not and will not individually or in the aggregate, materially interfere with the
use by Seller or Purchaser of the property subject thereto or affected thereby,
(iii) as to leaseholds, interests of the lessors thereof and Liens affecting the
interests of such lessors and (iv) any Lien set forth on SCHEDULE 1 attached
hereto.
ARTICLE II
DESCRIPTION OF ASSETS; EXCLUDED ASSETS
SECTION 2.01. ASSETS. The assets to be conveyed to Purchaser shall
include all real and personal tangible and intangible assets, properties and
business owned or used by Seller of whatever description, which relate in any
way to the ownership, use or operation of the Business, including all property
and rights acquired or obtained by Seller from the date hereof through the date
of the Primary Closing other than the assets excluded pursuant to Section 2.02
hereof (collectively, the "Assets"). Such Assets shall be free and clear of all
Liens other than Permitted Liens. Such Assets shall include, without
limitation:
(a) All licenses (including the FCC Authorization), leases,
agreements, permits, authorizations, consents and other contracts, revenue
sharing and like agreements, agreements for the reception or transmission of
signals by microwave, easements, appurtenances, rights-of-way and
construction permits; all right, title and interest, if any, in and to all
streets, roads and public places, open or proposed; all agreements between
Seller and suppliers, cellular telephone service companies and subscribers
(including subscriber deposits), and all other similar rights and agreements
(including so-called roaming agreements), which in any way may relate to or
concern the operation by Seller of the Business, all as more particularly
described on SCHEDULE 2.01(a) attached hereto;
(b) All files of correspondence, lists, records and reports
concerning (i) customers and prospective customers of the Business and (ii) all
dealings with Federal, state and local regulatory agencies with respect to the
Business, including, but not limited to, all reports filed by or on behalf of
Seller with the FCC;
(c) All towers, tower equipment, antennas, switching and cell site
equipment and buildings, construction in progress, microwave equipment, testing
equipment, motor vehicles, office equipment, furniture and fixtures, supplies,
inventory and other physical assets, if any, used in or relating to the
Business, and all modifications, additions, restorations or replacements of the
whole or any part thereof;
(d) All interests in real property used in or relating to the
Business;
(e) All right, title and interest to engineering records, files,
data, drawings, blueprints, schematics, maps, reports, lists and plans and
processes intended for use in connection with the Business;
(f) All right, title and interest to intangible personal property
used in or relating to the Business, including all rights, patents and
copyrights used by Seller, and all of the rights of Seller associated therewith
(including any and all applications, registrations, extensions and renewals
thereof), and such rights, patents and copyrights as are described on
SCHEDULE 2.01(f) attached hereto; and
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(g) Any of the tangible and intangible property of Seller which is
acquired after the date hereof but prior to the Primary Closing and which will
be set forth on SCHEDULE 2.01(g), as such Schedule shall be amended and
supplemented from time to time through the Primary Closing.
SECTION 2.02. EXCLUDED ASSETS. (a) The letter agreement dated June 25,
1992 by and among the Partnership, CCI RSA, Inc. and NewPar (the "AirTouch
Agreement") and the properties and assets described in Section 2.02(b) of this
Agreement which relate to the Business shall be retained by Seller and shall not
be sold, assigned or transferred to Purchaser (the "Excluded Assets").
(b) Anything in this Agreement to the contrary notwithstanding,
the Assets sold to Purchaser pursuant to the terms of this Agreement shall not
include Seller's limited liability company records, books of account, cash, bank
deposits and cash equivalents of Seller at the time of the Primary Closing.
SECTION 2.03. PURCHASER'S ACKNOWLEDGMENT. Purchaser acknowledges that at
the time of the execution of this Agreement, Seller's only assets are the FCC
Authorization and its rights under the AirTouch Agreement, and that Seller shall
not be obligated to acquire any additional assets.
ARTICLE III
ASSUMPTION OF LIABILITIES
As of the Primary Closing, Purchaser shall assume and agree to perform and
discharge the following as they become due for all periods from and after the
date of the Primary Closing, to the extent not previously performed or
discharged: (i) all obligations of Seller which accrue and are to be performed
from and after the Primary Closing under those permits, authorizations,
licenses, leases, rights of way, easements and other agreements related to the
Business listed on SCHEDULES 2.01(a) and 2.01(g); and (ii) all other obligations
of Seller entered into during the period from the date hereof to the Primary
Closing by Seller and identified to and consented by Purchaser and specifically
assumed by Purchaser at the Primary Closing (all of such permits,
authorizations, licenses, leases, rights of way, easements and other agreements
referred to in items (i) and (ii) being referred to hereinafter as the "Assumed
Liabilities"). Purchaser shall not be liable for any liabilities, debts,
contracts, agreements, including without limitation any contracts or agreements
set forth in Section 2.02, or other obligations of Seller of any nature
whatsoever other than the Assumed Liabilities, and it is expressly understood
that Purchaser shall not assume, and shall not be liable for any of Seller's
expenses or obligations relating to or accruing by reason of the proceedings
relating to the FCC Authorization in FCC Docket 91-142 (the "Risk Sharing
Proceeding"), including any obligations relating to any settlement thereof (such
other liabilities, debts, contracts, agreements or other obligations of Seller
other than the Assumed Liabilities being referred to as the "Non-Assumed
Liabilities").
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ARTICLE IV
INSTRUMENTS OF TRANSFER AND ASSUMPTION
SECTION 4.01. TRANSFER DOCUMENTS. At the Primary Closing, Seller will
deliver to Purchaser (a) a Xxxx of Sale in substantially the form attached
hereto as EXHIBIT A (the "Xxxx of Sale"), (b) all such other good and sufficient
instruments of sale, transfer and conveyance, in such form and including such
matters as Purchaser shall reasonably request, as shall be effective to vest in
Purchaser all of Seller's right and title to, and interest in, the Assets; and
(c) all contracts and commitments, instruments, books and records (except as
otherwise provided in Section 2.02 hereof) and other data relating to the
Assets, business and operations of Seller.
SECTION 4.02. ASSUMPTION DOCUMENTS. At the Primary Closing, Purchaser and
Seller will execute and deliver an Assumption Agreement in substantially the
form attached hereto as EXHIBIT B (the "Assumption Agreement") in order to
effect the assumption of the Assumed Liabilities by Purchaser.
ARTICLE V
PURCHASE PRICE; ALLOCATION
SECTION 5.01. PURCHASE PRICE. The total purchase price for the Assets
shall be Thirty-Nine Million Three Hundred Thousand Dollars ($39,300,000).
SECTION 5.02. DEPOSIT. Purchaser has paid into escrow with PNC Bank,
National Association (the "Escrow Agent") $500,000, and on the date hereof will
deposit an additional amount so that the total amount in escrow is Three Million
Nine Hundred Thirty Thousand Dollars ($3,930,000) (the "Deposit"). The Deposit
is being held and invested and will be disbursed pursuant to the terms of the
Deposit Escrow Agreement, a copy of which is attached hereto as EXHIBIT C (the
"Deposit Escrow Agreement"). If the Primary Closing occurs, (i) the earnings on
the Deposit shall be paid to Purchaser in accordance with the Deposit Escrow
Agreement, and (ii) the Deposit shall be retained in the escrow account, such
amount to be administered in accordance with the Purchase Escrow Agreement (as
defined below). If Seller terminates this Agreement in accordance with the
provisions of Section 16.01(e) or (f) prior to the Primary Closing and at the
time of such termination Seller is not then in material breach of any of its
representations, warranties, covenants or agreements set forth in this
Agreement, then Seller shall be entitled to the Deposit as liquidated damages
(the "Liquidated Damages Amount"), which Liquidated Damages Amount the parties
agree is a fair and reasonable measure of the damages that Seller would sustain
as a result of such termination. Notwithstanding anything else set forth in
this Section 5.02, Seller's sole and exclusive recourse in the event Seller
terminates this Agreement in accordance with the provisions of Section 16.01(e)
or (f) prior to the Primary Closing shall be to receive the Deposit. If for any
other reason the Primary Closing does not occur, then the Deposit and all
earnings thereon shall be paid to Purchaser. All payments by the Escrow Agent
shall be made in accordance with the procedures and other provisions set forth
in the Deposit Escrow Agreement.
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SECTION 5.03. PAYMENT OF PURCHASE PRICE. On the Primary Closing Date and
subject to the terms and conditions set forth in this Agreement, in reliance on
the representations, warranties, covenants and agreements of the parties
contained herein and in consideration of the sale of the Assets, Purchaser will
pay the Purchase Price LESS the Deposit into an account (the "Purchase Escrow
Account") maintained by the Escrow Agent, and such amount will be held, invested
and disbursed pursuant to the terms of the Purchase Escrow Agreement
substantially in the form of EXHIBIT D attached hereto (the "Purchase Escrow
Agreement"). On the Primary Closing Date, the Deposit will be transferred to
the Purchase Escrow Account, whereupon the Deposit Escrow Agreement shall
terminate. At Final Closing, an amount equal to the Purchase Price less the sum
of (i) amounts paid to Purchaser from the Purchase Escrow Account in respect of
indemnification pursuant to Section 14.01 hereof and (ii) amounts held in
respect of any pending but unpaid claims for indemnification pursuant to Section
14.01 hereof (such amounts in clause (ii) being referred to as the "Indemnity
Escrow Amount") shall be paid to Seller from the Purchase Escrow Account. The
Indemnity Escrow Amount shall be held and released in accordance with the terms
of the Purchase Escrow Agreement. In addition, an amount equal to the earnings,
if any, which have accrued on the amount in the Purchase Escrow Account from the
Final Order Date (provided Seller is not then in material breach of any of its
representations, warranties, covenants or agreements set forth in this
Agreement) shall be paid to Seller at the Final Closing. All remaining amounts
in the Purchase Escrow Account shall be released to Purchaser in accordance with
the terms of the Purchase Escrow Agreement. Notwithstanding the foregoing, at
Final Closing Seller and Purchaser may instruct the Escrow Agent to release a
specified amount as a settlement of FCC litigation to which Seller is a party,
in accordance with the terms of the Purchase Escrow Agreement. Except as
provided in Section 16.02(b), in the event this Agreement is terminated after
the Primary Closing for any reason under Article XVI of this Agreement, all
amounts in the Purchase Escrow Account shall be released to Purchaser in
accordance with the terms of the Purchase Escrow Agreement.
SECTION 5.04. ALLOCATION OF PURCHASE PRICE. No later than five (5) days
before the Primary Closing, Purchaser and Seller in good faith shall determine
an allocation of the Purchase Price in accordance with the respective fair
market values of the Assets being purchased. Purchaser and Seller each further
agree to file their income tax returns and their other tax returns reflecting
the allocation as determined in this Section 5.04. If no agreement on an
allocation of the Purchase Price is reached within thirty (30) days after the
Primary Closing, such allocation shall be determined by a nationally recognized
appraisal firm mutually agreeable to Seller and Purchaser and the costs of such
appraisal shall be borne equally by Seller and Purchaser.
ARTICLE VI
CLOSING
SECTION 6.01. PRIMARY CLOSING. Subject to the terms and conditions
hereof, the Primary Closing (the "Primary Closing") shall take place at the
offices of Xxxxxxx & Xxxxxx, Xxx XxxxXxxxxx Xxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx
00000 on August 26, 1998 (the "Primary Closing Date").
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SECTION 6.02. FINAL CLOSING. Subject to the terms and conditions hereof,
the Final Closing (the "Final Closing") shall take place at the offices of
Xxxxxxx & Xxxxxx, Xxx XxxxXxxxxx Xxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000 on a date
designated by Purchaser that is within ten (10) business days after the later to
occur of each of the following (the date of the later occurrence being referred
to herein as the "Final Order Date"): (a) the date on which the FCC's approval
of the assignment of the FCC Authorization from Seller to Purchaser has become a
Final Order; and (b) the date on which the FCC's order in the Risk Sharing
Proceeding granting the FCC Authorization to Seller has become a Final Order
(the "Final Closing Date"). For the purposes of this Agreement, the term "Final
Order" shall mean action by the FCC as to which (i) no request for stay by the
FCC of the action is pending, no such stay is in effect, and, if any deadline
for filing any such request is designated by statute or regulation, such
deadline has passed; (ii) no petition for rehearing or reconsideration of the
action is pending before the FCC and the time for filing any such petition has
passed; (iii) the FCC does not have the action under reconsideration on its own
motion and the time for such reconsideration has passed; and (iv) no appeal to a
court, or request for stay by a court, of the FCC's action is pending or in
effect, and, if any deadline for filing any such appeal or request is designated
by statute or rule, it has passed.
ARTICLE VII
SELLER'S REPRESENTATIONS
Seller hereby represents, warrants, covenants and agrees that:
SECTION 7.01. ORGANIZATION; QUALIFICATION; INTEREST HOLDERS. Seller is a
limited liability company duly organized, validly existing and in good standing
under the laws of the State of Delaware and is duly qualified to do business in
the State of Ohio. A true and complete copy of Seller's Certificate of
Formation and Limited Liability Company Operating Agreement, each as amended to
date, is attached as SCHEDULE 7.01(a) hereto. Seller has all power and
authority to own and operate its properties and to carry on its business as now
being conducted or proposed to be conducted by Seller and to carry out the
transactions contemplated by this Agreement. Seller has the power and authority
to execute and deliver and, subject to obtaining the FCC's approval to assign
the FCC Authorization to Purchaser, perform its obligations under this Agreement
and to undertake the transactions contemplated hereby. A true and accurate list
of the name and addresses of the Interest Holders of Seller is set forth on
SCHEDULE 7.01(b) attached hereto (the "Interest Holders").
SECTION 7.02. CONSENTS, AUTHORIZATION, EXECUTION AND DELIVERY OF
AGREEMENT. All necessary consents and approvals have been obtained by Seller
for the execution and delivery of this Agreement. The execution, delivery and
performance of this Agreement by Seller and the transfer of the Assets to
Purchaser have been duly and validly authorized and approved by all necessary
limited liability company action of Seller's Interest Holders. This Agreement
is a valid and binding obligation of Seller and the Interest Holders,
enforceable against them in accordance with its terms.
SECTION 7.03. TITLE TO ASSETS; LIABILITIES, CONDITION OF ASSETS. Except
as set forth on SCHEDULE 7.03 attached hereto, Seller has full power, right and
authority to sell and convey the
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Assets to Purchaser. Seller has, and at the Primary Closing will transfer
and convey to Purchaser, good and marketable title to the Assets, free and
clear of all Liens other than Permitted Liens. All Liens on the Assets in
effect on the date hereof are listed on SCHEDULE 7.03 hereto and all such
Liens, other than Permitted Liens, will be discharged at the Primary Closing.
Seller does not have any liabilities which would be required to be disclosed
on a balance sheet prepared in accordance with GAAP. The Assets, together
with the assets owned or used by AirTouch Communications, Inc. in connection
with its provision of cellular services in the RSA, constitute all of the
assets used or useful by Seller in connection with the operation of the
Business. No Interest Holder owns, leases or has any rights in any property,
license or other assets related to the Business.
SECTION 7.04. REAL PROPERTY - OWNED. Seller does not own any real
property or interests in real property in fee simple.
SECTION 7.05. REAL AND PERSONAL PROPERTY - LEASED. Seller does not lease
any real or personal property.
SECTION 7.06. EXISTING CONTRACTS. Set forth on SCHEDULE 7.06 attached
hereto are all agreements, contracts commitments, options, Liens, licenses,
mortgages and other security interests, promises and understandings (written or
oral) to which Seller is a party or by which any of the Assets and/or the
operation of the Business are bound (the "Existing Contracts"). No Interest
Holder or any person or entity (other than Seller) controlled or affiliated with
any Interest Holder has any contractual relationship relating to the ownership
of the Assets or operation of the Business, except as set forth on
SCHEDULE 7.06. Seller has heretofore delivered to Purchaser true and correct
copies of the Existing Contracts. Seller has no knowledge of any breach or
anticipated breach by the other parties to any Existing Contracts. The Existing
Contracts are in full force and effect and Seller is in compliance with the
terms of such Existing Contracts. Except for the Existing Contracts, Seller has
not entered into any other agreements relating to the ownership of the Assets
and the operation of the Business, including, but not limited to, rights-of-way,
rights of entry, licenses, easements, leases (real property or equipment), or
guaranty agreements. Seller is not aware of any claims by third parties that
Seller is required to enter into such other agreements to enable it to continue
owning the Assets and operating the Business as it is presently being operated.
SECTION 7.07. GOVERNMENTAL LICENSES. Seller holds all necessary licenses
including without limitation the FCC Authorization, consents, permits, approvals
and authorizations of public or governmental bodies including, without
limitation, the FCC and the state, counties and municipalities served by the
Business, which are required in connection with the ownership of the Assets and
which are required for the provision of cellular services in the RSA in
connection with applicable FCC regulations (collectively referred to as the
"Authorizations"). All Authorizations are in full force and effect. Seller has
complied with the terms of the Authorizations and there are no pending
modifications, amendments or revocations of the Authorizations which would
adversely affect the ownership of the Assets or the operation of the Business.
All fees of Seller due and payable to governmental authorities pursuant to the
Authorizations have been paid and no event has occurred which, with or without
the giving of
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notice or lapse of time or both, would constitute grounds for revocation or
modification of the Authorizations. All reports required of Seller to be
filed in connection with the Authorizations have been timely filed and are
accurate and complete. Seller has not engaged in any course of conduct that
could reasonably be expected to impair the ability of Seller to be the holder
of the Authorizations or is aware of any reason why the Authorizations might
not be renewed in the ordinary course, why any of the Authorizations might be
revoked, or why any pending applications or notifications might not be
approved. True and correct copies of the Authorizations, and all amendments
thereto to the date hereof, have been delivered by Seller to Purchaser and
are identified on SCHEDULE 7.07 attached hereto. The ownership of the Assets
and the operation of the Business by Seller is not subject to regulation or
supervision by any applicable state public utilities commission or other
similar state governmental instrumentality (a "PUC").
SECTION 7.08. COMPLIANCE WITH LAWS. Except as set forth on SCHEDULE 7.08
attached hereto, Seller is currently complying with, and it and its predecessor,
Alpha Cellular, a general partnership (the "Partnership"), have so complied
with, and Seller is not in default under or in violation of, and neither the
Business nor any of the Assets nor the operation or maintenance thereof,
contravenes in any respect any statute, law (including environmental or
employment laws), ordinance, decree, order, rule or regulation of any
governmental body applicable to the Assets or the Business, including, without
limitation, rules and regulations of the FCC.
SECTION 7.09. NO VIOLATION OF EXISTING AGREEMENTS. The execution,
delivery and performance of this Agreement by Seller and the Interest Holders
will not violate any provisions of law and will not, with or without the giving
of notice or the passage of time, or both, conflict with or result in any breach
of any of the terms or conditions of, or constitute a default under any Existing
Contracts. The execution, delivery and performance of this Agreement by Seller
and the Interest Holders will not result in the creation of any Lien upon the
Assets or the Business.
SECTION 7.10. LITIGATION AND LEGAL PROCEEDINGS. Except as set forth on
SCHEDULE 7.10 attached hereto, there is no outstanding judgment against Seller,
the Partnership or any Interest Holder and there is no litigation, proceeding or
investigation pending, or, to the knowledge of Seller and the Interest Holders,
threatened, against Seller, the Partnership, any Interest Holder or the Business
or the Assets or which questions the validity of any action taken or to be taken
pursuant to or in connection with the provisions of this Agreement. Except as
set forth on SCHEDULE 7.10, there are no proceedings pending to which Seller or
any Interest Holder is a party or, to the knowledge of Seller and the Interest
Holders, threatened, nor any demands by any governmental agency, utility or
other party, to terminate, modify or adversely change the terms and conditions
of Seller's rights with respect to the Authorizations or Existing Contracts
whereby such termination or modification would result in an adverse effect on
the Business or the Assets.
SECTION 7.11. ENVIRONMENTAL COMPLIANCE. Seller has no real property,
whether owned or leased, and has no facilities or equipment, its only assets
being the FCC Authorization and certain rights under the AirTouch Agreement.
SECTION 7.12. LABOR MATTERS. Seller has no employees.
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SECTION 7.13. EMPLOYEE BENEFITS. Seller has no Employee Benefit Plans in
which one or more Interest Holders participate or are eligible to participate as
of the date hereof, and is not a party to any employment contract. The term
"Employee Benefit Plans" means all employee benefit plans as that term is
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"). No Interest Holder or employee of Seller participates or
is eligible to participate in a "defined benefit pension plan" as defined in
Section 3(35) of ERISA, maintained or made available by Seller. Neither Seller
nor any Controlled Group Member maintains or contributes to, or ever maintained
or contributed to, a plan under which any employee of Seller participates or is
eligible to participate subject to Section 412 of the Internal Revenue Code of
1986, as amended (the "Code"). The term "Controlled Group Member" means any
trade or business (whether or not incorporated) which is, or was at any relevant
time, aggregated with Seller pursuant to Section 414(b), (c), (m) or (o) of the
Code. Neither Seller nor any ERISA Affiliate has participated in or made
contributions to any "multiemployer plan" as defined in Section 4001(a)(3) of
ERISA. The term "ERISA Affiliate" means each trade or business (whether or not
incorporated) which is, or was at any relevant time, treated as a single
employer with Seller pursuant to Section 4001(b)(1) of ERISA.
SECTION 7.14. TAX MATTERS. Except as disclosed on SCHEDULE 7.14 attached
hereto, Seller, the Partnership and each of its Interest Holders have timely
filed all federal, state, county and local tax returns required to be filed as
of the date hereof and will file all such returns required to be filed from the
date hereof to the Primary Closing, and have paid and will pay all taxes due and
owing for all such periods. There are no suits, actions, claims,
investigations, inquiries or proceedings pending or, to the knowledge of Seller
and the Interest Holders, threatened against Seller, the Partnership or any
Interest Holder in respect of any taxes, interest, assessments, governmental
charges or penalties, with the exception of the Risk Sharing Proceeding, in
which Seller is a party.
SECTION 7.15. SUBSCRIBERS. As of the date hereof, the Business does not
have any subscribers.
SECTION 7.16. INSURANCE. Attached hereto as SCHEDULE 7.16 is an accurate
and complete list in all material respects of all insurance policies, bonds and
letters of credit which relate in any way to the ownership, use or operation of
the Assets and the Business.
SECTION 7.17. BROKERS. Except as set forth on SCHEDULE 7.17 attached
hereto, Seller and the Interest Holders have not engaged any agent, broker or
other person acting pursuant to the express or implied authority of Seller which
is or may be entitled to a commission or broker or finder's fee in connection
with the transactions contemplated by this Agreement or otherwise with respect
to the sale of the Assets or the Business.
SECTION 7.18. XXXX-XXXXX-XXXXXX. Seller does not meet the "size of person
test" for an acquired person under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act, since Seller's ultimate parent entity and all entities that its ultimate
parent entity controls do not meet the financial thresholds set forth in 16
C.F.R. Part 801.
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SECTION 7.19. DISCLOSURE OF MATERIAL INFORMATION. No representation or
warranty by Seller or the Interest Holders hereunder or in the exhibits hereto,
the Xxxx of Sale, the Assumption Agreement, or in any closing certificate
delivered to Purchaser pursuant to Article X or XII hereof, contains or will
contain any untrue statement of a material fact or omits or will omit to state a
material fact necessary to make the statements contained therein not misleading.
ARTICLE VIII
PURCHASER'S REPRESENTATIONS
Purchaser hereby represents, warrants, covenants and agrees that:
SECTION 8.01. ORGANIZATION; QUALIFICATION. Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Oklahoma. Purchaser has all power and authority to (i) own and operate
its properties, (ii) carry on its business as it is now being conducted, and
(iii) carry out the transactions contemplated by this Agreement and to own and
operate the Assets and the Business, subject to obtaining all necessary consents
required for the transfer by Seller of the Assets.
SECTION 8.02. CONSENTS; AUTHORIZATION; EXECUTION AND DELIVERY OF
AGREEMENT. The execution and delivery of this Agreement by Purchaser has been
duly and validly authorized and approved by all necessary corporate action.
Purchaser has full power and authority to execute and deliver and perform its
obligations under this Agreement. This Agreement is a valid and binding
obligation of Purchaser, enforceable against it in accordance with its terms.
SECTION 8.03. LITIGATION AND LEGAL PROCEEDINGS. There is no outstanding
judgment against Purchaser and there is no litigation, proceeding or
investigation pending, or, to Purchaser's knowledge, threatened, against
Purchaser or its assets which individually or in the aggregate would, if
adversely determined, result in a material adverse change in the business
condition (financial or otherwise), properties, prospects or assets of Purchaser
or which questions the validity of any action taken or to be taken pursuant to
or in connection with the provisions of this Agreement or the consummation of
the transactions contemplated hereby by Purchaser.
SECTION 8.04. BROKERS. With the exception of First Union Capital Markets,
to which Purchaser shall pay a brokerage fee, Purchaser has not engaged any
agent, broker or other person acting pursuant to the express or implied
authority of Purchaser which is or may be entitled to a commission or broker or
finder's fee in connection with the transactions contemplated by this Agreement
or otherwise with respect to the sale of the Assets or the Business.
SECTION 8.05. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by Purchaser of this Agreement require no action by or in respect
of, or filing with, any governmental body, agency or official other than the
filings with and approval of the FCC necessary to consummate the transactions
contemplated hereby.
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SECTION 8.06. NON-CONTRAVENTION. Purchaser is not a party to or bound
by any contract prohibiting the consummation of the transactions contemplated
hereby nor any contract or contracts that either separately or in the
aggregate materially and adversely affect Purchaser's ability to consummate
the transactions contemplated by this Agreement.
SECTION 8.07. ACCURACY OF STATEMENTS. No representation or warranty by
Purchaser hereunder or in the exhibits hereto, the Xxxx of Sale, the
Assumption Agreement, or in any closing certificate delivered to Seller
pursuant to Article XI hereof, contains or will contain any untrue statement
of a material fact, or omits or will omit to state any material fact
necessary to make the statements contained herein or therein, in light of the
circumstances in which such statements were made, not misleading.
SECTION 8.08. FINANCING; QUALIFICATIONS. Purchaser has, or will have
prior to the Primary Closing, sufficient cash, available lines of credit or
other sources of immediately available funds to enable it to purchase the
Assets. Purchaser has no knowledge of any fact that would, under existing
law, disqualify Purchaser as an assignee of the FCC Authorization.
SECTION 8.09. ENVIRONMENTAL COMPLIANCE. Purchaser currently has no
real property, whether owned or leased, and has no facilities or equipment
located in the RSA.
ARTICLE IX
SELLER'S AND PURCHASER'S AFFIRMATIVE COVENANTS
SECTION 9.01 ACCESS. Seller shall give Purchaser and its counsel,
accountants and other representatives access during normal business hours to
inspect all of the properties, books and records of Seller as they pertain to
the Assets and the Business, wherever located, and furnish Purchaser with
such available and existing documentation concerning the Assets and the
Business as Purchaser may reasonably request.
SECTION 9.02. CONDUCT OF BUSINESS. From the date hereof until the
Primary Closing Seller shall:
(a) Use its best efforts to preserve intact the Assets and the
Business, including, but not limited to, complying in all material respects
with applicable Federal, state and local laws, rules and regulations and
pertinent provisions of all Existing Contracts and Authorizations;
(b) Not sell, transfer, convey or otherwise dispose of the Assets
without the prior written consent of Purchaser or pledge or otherwise
encumber any of the Assets without the prior written consent of Purchaser;
(c) Not make any distribution of any Assets to any of its Interest
Holders or any affiliate of any of its Interest Holders;
(d) Not hire any employees;
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(e) Maintain its books and records in accordance with prior practice;
(f) Provide to the Purchaser, concurrently with filing thereof,
copies of all reports to and other filings with the FCC and any other
governmental agency;
(g) Not permit the FCC Authorization to expire or to be
surrendered or voluntarily modified in a matter adverse to the Business, or
take any action which would reasonably be expected to cause the FCC or any
other governmental authority to institute proceedings for the suspension,
revocation or limitation of rights under the FCC Authorization; or fail to
prosecute with due diligence any pending applications to any governmental
authority;
(h) Notify Purchaser in writing promptly after learning of the
institution or threat of any material action against Seller in any court, or
any action against Seller before the FCC or any other governmental agency,
and notify Purchaser in writing promptly upon receipt of any administrative
or court order relating to the Assets or the Business; and
(i) pay or cause to be paid or provide for all taxes of or
relating to Seller, the Assets and the employees required to be paid to city,
county, state, Federal and other governmental units up to the Primary Closing
Date.
SECTION 9.03. GOVERNMENTAL APPROVALS. (a) Purchaser will fully
cooperate with Seller and do all things that are commercially reasonable to
assist Seller to obtain all consents and approvals necessary for the transfer
or assignment to Purchaser of the Authorizations (including without
limitation, the FCC Authorization), including the furnishing of financial and
other information specifically with respect to Purchaser reasonably required
by the person whose consent or approval is being sought. Seller shall
provide adequate prior written notice to Purchaser of any meeting with
governmental authorities the purpose of which is to seek a consent or
approval to the transactions contemplated hereby, and Purchaser shall use all
reasonable efforts to furnish a representative to attend meetings with
appropriate government authorities for the purpose of obtaining such consents
or approvals. Seller hereby agrees to file the necessary Form 490 with the
FCC transferring or assigning control of the FCC Authorization to Purchaser
and diligently pursue the processing of the assignment of the FCC
Authorization to Purchaser and to file for all other necessary regulatory
approvals for the consummation of the transactions contemplated by this
Agreement within five business days of the date of execution of this
Agreement to the extent any such filings have not been made prior to the date
of execution of this Agreement.
(b) Purchaser and Seller shall share equally all fees relating to
filings made pursuant to this Section 9.03.
SECTION 9.04. THIRD PARTY CONSENTS; CLOSING CONDITIONS. (a) Each of
Purchaser and Seller covenants and agrees that each of them will reasonably
cooperate with each other, and Purchaser will do all things reasonably
necessary to assist Seller to obtain all consents and approvals necessary for
the transfer or assignment to Purchaser of the Assets, including the
furnishing of financial and other information specifically with respect to
Purchaser or Seller, as
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the case may be, reasonably required by the person whose consent or approval
is being sought. Notwithstanding the foregoing, to the extent that any of
the Assets to be sold, assigned, transferred or conveyed to Purchaser, or any
claim, right or benefit arising thereunder or resulting therefrom
(individually, an "Interest" and collectively, the "Interests"), is not
capable of being sold, assigned, transferred or conveyed without the
approval, consent or waiver of the issuer thereof or the other party thereto,
or any third person (including a government or governmental unit), and such
approval, consent or waiver has not been obtained, or if such sale,
assignment, transfer or conveyance or attempted assignment, transfer or
conveyance would constitute a breach thereof, and such approval, consent or
waiver has not been obtained, this Agreement shall not constitute a sale,
assignment, transfer or conveyance thereof, or an attempted assignment,
transfer or conveyance thereof; provided Seller shall use its best efforts to
provide Purchaser the benefits of any such Interest as provided in Section
19.01(b). Each of Purchaser and Seller shall use all reasonable efforts to
consummate the transactions contemplated hereby.
(b) Purchaser and Seller hereby covenant and agree to use all
reasonable efforts to satisfy, or assist the other party in satisfying,
the closing conditions applicable to Purchaser in Article XI hereof and
Seller in Article X hereof prior to the Primary Closing Date.
SECTION 9.05. NO SHOPPING. Seller and the Interest Holders and any of
their respective affiliates, advisors or representatives shall not, during
the term of this Agreement, directly or indirectly, solicit, encourage or
initiate any contact with, negotiate with, or provide any information to,
endorse or enter into any agreement with respect to, or take any other action
to facilitate any person or group, other than Purchaser and its
representatives, concerning any inquiries or the making of any proposals
concerning any merger, sale of all or substantially all of the assets,
acquisition of Seller's membership or other economic interests, or any
similar transaction involving Seller.
SECTION 9.06. SUPPLEMENTAL DISCLOSURE. Seller shall promptly from time
to time prior to the Primary Closing Date and Final Closing Date supplement
in writing the Schedules hereto with respect to any matter hereafter arising
that, if existing or known as of the date of this Agreement, would have been
required to be set forth or described in the Schedules hereto; provided,
however, that no such supplemental disclosure shall be deemed to cure any
breach of any representation or warranty of Seller made in this Agreement
unless Purchaser waives any such breach in writing to Seller.
SECTION 9.07. LITIGATION MATTERS. Seller and Purchaser agree that any
and all costs of litigation and other proceedings pertaining to the Risk
Sharing Proceeding shall be the responsibility of Seller, and that Seller
shall control the defense of the Risk Sharing Proceeding, subject to
Purchaser's right to assist in the defense. Seller agrees that it will not
settle the Risk Sharing Proceeding without the prior written consent of
Purchaser, such consent not to be unreasonably withheld, provided that
Purchaser's consent to Seller's payment of money to persuade adverse parties
to withdraw from the Risk Sharing Proceeding shall not be required.
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SECTION 9.08. SUBSEQUENT AUCTION OF FCC AUTHORIZATION. Despite
termination of this Agreement pursuant to Section 16.01(d), Purchaser hereby
agrees that if the FCC Authorization is subsequently awarded by the FCC in a
competitive bidding mechanism in which Purchaser meets the eligibility
criteria, Purchaser agrees to use its commercially reasonable efforts to
qualify to bid on the FCC Authorization, and if Purchaser is granted the FCC
Authorization after such competitive bidding process for a price which is
less than the Purchase Price, Purchaser shall pay to Seller the amount which
is 50% of the difference. If Seller meets the eligibility criteria but
Purchaser does not, Seller may bid on the FCC Authorization after disclosing
to the FCC that it intends to assign the FCC Authorization to Purchaser and
securing FCC consent, if necessary, to that course of action; and if Seller
is granted the FCC Authorization in such competitive bidding process, Seller
shall promptly take such steps as are reasonably necessary to allow Seller to
assign such FCC Authorization to Purchaser, including the filing and
prosecution of applications to obtain any required FCC consents to such
assignment. In such event, the purchase price for the FCC Authorization
payable to Sellers shall be the lesser of (i) the Purchase Price and (ii) the
sum of (a) the price at which Seller was awarded the FCC Authorization plus
(b) one half of the difference between such price and the Purchase Price.
SECTION 9.09. MANAGEMENT AGREEMENT. In the event that the FCC's
consent to the transfer of the FCC Authorization from Seller to Purchaser has
been stayed or otherwise suspended prior to the Primary Closing ("FCC Stay"),
Purchaser and Seller shall then commence negotiations on a mutually
acceptable form of Management Agreement to govern the operation of the
Business until the FCC's consent is restored. If Purchaser and Seller are
unable to agree on mutually acceptable terms of the Management Agreement
within 15 business days of the FCC Stay, then either party shall have the
right to terminate this Agreement on five (5) days written notice to the
other party.
ARTICLE X
CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATION TO
CONSUMMATE PRIMARY CLOSING
The obligations of Purchaser under this Agreement with respect to the
purchase and sale of the Assets shall be subject to the fulfillment on or
prior to the Primary Closing of each of the following conditions:
SECTION 10.01. ACCURACY OF REPRESENTATIONS AND WARRANTIES; PERFORMANCE
OF THIS AGREEMENT. All of the representations and warranties by Seller
contained in this Agreement shall be true and correct at and as of the
Primary Closing in all material respects. Seller shall have complied with
and performed in all material respects all of the agreements and covenants
required by this Agreement to be performed or complied with by it on or prior
to the Primary Closing. Purchaser shall have been furnished with a
certificate or certificates of the General Manager of Seller, dated as of the
Primary Closing, certifying to the fulfillment of the foregoing conditions.
SECTION 10.02. INTEREST HOLDER APPROVAL. Seller shall deliver to
Purchaser a copy of the approval signed by all of the Interest Holders of
Seller which authorizes the execution, delivery
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and performance of this Agreement by Seller and all instruments and documents
to be delivered in connection herewith and the transactions contemplated
hereby, duly certified by the General Manager of Seller.
SECTION 10.03. [Intentionally Omitted.]
SECTION 10.04. THIRD PARTY CONSENTS; FCC GRANT. Seller shall have
delivered to Purchaser such instruments, consents and approvals of third
parties (the form and substance of which shall be reasonably satisfactory to
Purchaser) as are necessary to transfer to Purchaser without modification
thereof, as of the Primary Closing, the Assets and the Authorizations. Prior
to the Primary Closing, the FCC shall have granted its consent to the
transfer and assignment of the FCC Authorization to Purchaser without any
conditions which Purchaser determines, in its sole discretion, to be
materially adverse to its ability to operate a cellular system in the RSA,
provided that a consent conditioned on the outcome of the Risk Sharing
Proceeding would not be deemed a materially adverse condition. Anything
herein to the contrary notwithstanding, Purchaser shall have the right (in
its sole discretion) but no obligation to waive the requirement set forth in
the preceding sentence.
SECTION 10.05. DUE DILIGENCE. Purchaser and its agents and
representative shall have conducted a satisfactory legal, regulatory and
business due diligence review of the Assets, the results of which shall be
satisfactory to Purchaser. This condition shall be conclusively satisfied
unless Purchaser notifies Seller, in writing, of deficiencies within sixty
(60) days of the date of this Agreement. If Seller is notified of any
deficiencies within such 60-day period, Seller shall have thirty (30) days in
which to notify Purchaser in writing of Seller's decision to: (1) cure the
deficiencies, in which event Seller shall have an additional 60 days to cure
identified deficiencies to Purchaser's reasonable satisfaction, or (2)
terminate this Agreement (which termination shall be deemed a termination
pursuant to 16.01(a)).
SECTION 10.06. NO MATERIAL ADVERSE CHANGE. There shall not have been
any material adverse change with respect to the Authorizations.
SECTION 10.07. OPINION OF COUNSEL TO SELLER. Purchaser shall have been
furnished with an opinion of Xxxxxx X. Xx Xxxxxx, Esq., counsel to Seller,
dated as of the Primary Closing and addressed to Purchaser and to any
financial institution designated by Purchaser in substantially the form of
EXHIBIT E hereto.
SECTION 10.08. OPINION OF FCC COUNSEL TO SELLER. Purchaser shall have
been furnished with an opinion of Xxxxxx & Naftalin, L.L.P., FCC counsel for
Seller, dated as of the Primary Closing and addressed to Purchaser and to any
financial institution designated by Purchaser in substantially the form of
EXHIBIT F-1 attached hereto.
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ARTICLE XI
CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO
PRIMARY CLOSING
The obligations of Seller under this Agreement with respect to the
purchase and sale of the Assets shall be subject to the fulfillment on or
prior to the Primary Closing of each of the following conditions:
SECTION 11.01. ACCURACY OF REPRESENTATIONS AND WARRANTIES; PERFORMANCE
OF THIS AGREEMENT. All of the representations and warranties by Purchaser
contained in this Agreement shall be true and correct in all material
respects at and as of the Primary Closing. Purchaser shall have complied
with and performed in all material respects all of the agreements and
covenants required by this Agreement to be performed and complied with by it
on or prior to the Primary Closing. Seller shall have been furnished with a
certificate of an officer of Purchaser, dated as of the Primary Closing,
certifying to the fulfillment of the foregoing conditions.
SECTION 11.02. DIRECTORS' RESOLUTIONS. Purchaser shall deliver to
Seller copies of the resolutions of its Board of Directors authorizing the
execution, delivery and performance of this Agreement and all instruments and
documents to be delivered in connection herewith and the transactions
contemplated hereby, duly certified by an authorized officer of Purchaser.
SECTION 11.03. INCUMBENCY CERTIFICATE. Seller shall have received a
certificate of a secretary of Purchaser, certifying as to the genuineness of
the signatures of representatives of Purchaser authorized to take certain
actions or execute any certificate, document, instrument or agreement to be
delivered pursuant to this Agreement, which incumbency certificate shall
include the true signatures of such representatives.
SECTION 11.04. OPINION OF COUNSEL TO PURCHASER. Seller shall have been
furnished with an opinion of Xxxxxxx & Xxxxxx, counsel to Purchaser, dated as
of the Primary Closing and addressed to Seller in substantially the form of
EXHIBIT G hereto.
ARTICLE XII
CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATION AT FINAL CLOSING
The obligations of Purchaser under this Agreement due after the Primary
Closing with respect to the purchase and sale of the Assets shall be subject to
the fulfillment on or prior to the Final Closing of each of the following
conditions:
SECTION 12.01. ACCURACY OF REPRESENTATIONS AND WARRANTIES; PERFORMANCE
OF THIS AGREEMENT. All of the representations and warranties by Seller and
the Interest Holders contained in this Agreement shall be true and correct in
all material respects at and as of the Final Closing. Seller shall have
complied with and performed in all material respects all of the agreements
and covenants required by this Agreement to be performed and complied with by
it on or prior to the Final Closing. Purchaser shall have been furnished
with a certificate of the
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General Manager of Seller, dated as of the Final Closing, certifying to the
fulfillment of the foregoing conditions.
SECTION 12.02. FCC FINAL ORDER. Each of (i) the FCC order granting
approval for the assignment of the FCC Authorization from Seller to Purchaser
and (ii) the FCC order granting the FCC Authorization to Seller in the Risk
Sharing Proceeding shall have become a Final Order, in each instance without
any conditions which the Purchaser shall have determined, in its sole
discretion, to be materially adverse to its ability to operate a cellular
system in the RSA.
SECTION 12.03. OPINION OF FCC COUNSEL TO SELLER. Purchaser shall have
been furnished an opinion of Xxxxxx & Naftalin, L.L.P., FCC counsel for
Seller, dated as of the Final Closing and addressed to Purchaser and any
financial institution designated by Purchaser in substantially the form of
EXHIBIT F-2 attached hereto.
ARTICLE XIII
CASUALTY LOSSES
In the event that there shall have been suffered between the date hereof
and the Primary Closing any casualty loss relating to the Assets or the
Business, then at the Primary Closing all claims to insurance proceeds or
other rights of Seller against third parties arising from such casualty loss
(the "Claims") shall (to the extent assignable) be separately assigned by
Seller to Purchaser. To the extent any Claim is not assignable, such claim
may be pursued by Purchaser, for its own account and benefit, in the name of
Seller.
ARTICLE XIV
INDEMNIFICATION
SECTION 14.01. INDEMNIFICATION BY SELLER. Notwithstanding the Primary
Closing or Final Closing, and regardless of any investigation made at any
time by or on behalf of Purchaser or any information Purchaser may have, but
subject to the terms of this Article XIV, Seller and its Interest Holders, on
a joint and several basis (the "Indemnifying Seller Parties"), agree to
indemnify and to hold Purchaser, its shareholders, officers, directors, and
employees (the "Indemnified Purchaser Parties") harmless from and against and
in respect of any losses (including lost revenues), damages, costs, expenses
(including costs of investigations and reasonable attorney fees), suits,
demands, judgments and diminutions in value suffered or incurred (each a
"Loss" and collectively "Losses") by Purchaser arising from or related to:
(i) Any and all Non-Assumed Liabilities, whether or not known
or asserted at or prior to the Primary Closing, relating to or arising
from the ownership, operation, control or sale of the Assets or the
Business by Seller or the Partnership, or any other state of facts
which existed at or prior to the Primary Closing;
(ii) Any liability, debt, obligation, tax, claim or demand relating
to the FCC Authorization or any application therefor while held by Seller
or the Partnership,
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including without limitation, any fines or forfeitures imposed or
threatened to be imposed by the FCC, regardless of when such fines are
imposed or threatened;
(iii) Any misrepresentation, breach of warranty, or nonfulfillment of
any agreement or covenant on the part of Seller under this Agreement, the
Schedules or Exhibits hereto, the Xxxx of Sale, the Assumption Agreement,
the Deposit Escrow Agreement, the Purchase Escrow Agreement or in any
closing certificate delivered by Seller to Purchaser pursuant to Article X
or XII hereof; and
(iv) All reasonable costs and expenses (including reasonable
attorneys' fees) incurred by any Indemnified Purchaser Party in connection
with any action, suit, proceeding, demand, assessment or judgment incident
to any of the matters such Indemnified Purchaser Party is indemnified
against by the Indemnifying Seller Parties in this Agreement.
SECTION 14.02. INDEMNIFICATION BY PURCHASER. Notwithstanding the
Primary Closing or Final Closing, and regardless of any investigation made at
any time by or on behalf of Seller or any information Seller or its Interest
Holders may have, but subject to the terms of this Article XIV, Purchaser
agrees to indemnify and to hold Seller and its Interest Holders harmless from
and against and in respect of any Losses incurred by Seller and its Interest
Holders arising from or related to:
(i) All liabilities and obligations of Purchaser, and all claims
and demands made in respect thereof relating to or arising from,
Purchaser's ownership, operation or control of the Assets or the Business
after the Primary Closing, including on account of the Assumed Liabilities;
(ii) Any liability, debt, obligation, tax, claim or demand relating
to the FCC Authorization while held by Purchaser, including without
limitation, any fines or forfeitures imposed or threatened to be imposed by
the FCC, regardless of when such fines are imposed or threatened;
(iii) Any misrepresentation, breach of warranty, or nonfulfillment of
any agreement or covenant on the part of Purchaser under this Agreement,
the Schedules or Exhibits hereto, the Assumption Agreement, the Deposit
Escrow Agreement, the Purchase Escrow Agreement or in any closing
certificate delivered by Purchaser to Seller pursuant to Article XI
hereof; and
(iv) All reasonable costs and expenses (including reasonable
attorneys' fees) incurred by Seller and its Interest Holders in connection
with any action, suit, proceeding, demand, assessment or judgment incident
to any of the matters Seller and its Interest Holders are indemnified
against by Purchaser in this Agreement.
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SECTION 14.03. NOTICE OF CLAIMS; DEFENSE OF THIRD PARTY. (a) A party
claiming indemnification under this Article XIV (the "Asserting Party") must
promptly notify (in writing and in reasonable detail) the party from which
indemnification is sought (the "Defending Party") of the nature and basis of
such claim for indemnification.
(b) If such claim relates to a claim, suit, litigation or other action
by a third party against the Asserting Party or any fixed or contingent
liability to a third party (a "Third Party Claim"), the Defending Party may
elect to assume and control the defense of the Third Party Claim at its own
expense with counsel selected by the Defending Party from and after such time
as the Defending Party unconditionally agrees in writing to accept, as
against the Asserting Party, all liabilities on account of such Third Party
Claim.
(c) Assumption of such liability, as against the Asserting Party, shall
not be deemed an admission of liability as against any such third party.
Notwithstanding the foregoing, the Defending Party may not assume or control
the defense if the named parties to the Third Party Claim (including any
impleaded parties) include both the Defending Party and the Asserting Party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them, in which case
the Asserting Party shall have the right to defend the Third Party Claim and
to employ counsel reasonably approved by the Defending Party, and to the
extent the matter is determined to be subject to indemnification hereunder,
the Defending Party shall reimburse the Asserting Party for the reasonable
costs of its counsel.
(d) If the Defending Party assumes liability for the Third Party Claim
as against the Asserting Party and assumes the defense and control of the
Third Party Claim pursuant to this Section 14.03, the Defending Party shall
not be liable for any fees and expenses of counsel for the Asserting Party
incurred thereafter in connection with the Third Party Claim (except in the
case of actual or potential differing interests, as provided in the preceding
sentence), but shall not agree to any settlement of such Third Party Claim
which does not include an unconditional release of the Asserting Party by the
third party claimant on account thereof, provided that such requirement shall
be deemed waived to the extent that the Asserting Party does not undertake to
provide and promptly execute and, concurrently with the delivery of any such
release, deliver a corresponding release of the third party claimant with
respect to such Third Party Claim.
(e) If the Defending Party does not assume liability for and the
defense of the Third Party Claim pursuant to this Section 14.03, the
Asserting Party shall have the right (i) to control the defense thereof and
(ii), if the Asserting Party shall have notified the Defending Party of the
Asserting Party's intention to negotiate a settlement of the Third Party
Claim (at the Defending Party's expense to the extent the matter is
determined to be subject to indemnification hereunder), which notice shall
include the material terms of any proposed settlement in reasonable detail,
to settle the Third Party Claim (at the Defending Party's expense to the
extent the matter is determined to be subject to indemnification hereunder)
on terms not materially inconsistent with those set forth in such notice,
unless the Defending Party shall have notified the Asserting Party in writing
of the Defending Party's election to assume liability for and the defense of
the Third Party Claim pursuant to this Section 14.03 within ten days after
receipt of such notice, and the
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Defending Party promptly thereafter shall have taken appropriate action to
implement such defense.
(f) The Asserting Party shall not be entitled to settle any such Third
Party Claim pursuant to the preceding sentence unless such settlement
includes an unconditional release of the Defending Party by the third party
claimant on account thereof, PROVIDED that such requirement shall be deemed
waived to the extent that the Defending Party does not undertake to provide
and promptly execute and, concurrently with delivery of any such release,
deliver a corresponding release of the third party claimant with respect to
such Third Party Claim.
(g) The Asserting Party and the Defending Party shall use all
reasonable efforts to cooperate fully with respect to the defense and
settlement of any Third Party Claim covered by this Article XIV.
SECTION 14.04. PURCHASE ESCROW AGREEMENT. The obligation of
Indemnifying Seller Parties to indemnify Indemnified Purchaser Parties for
Losses pursuant to this Article XIV shall be secured by, but not limited to,
the funds held pursuant to the Purchase Escrow Agreement.
SECTION 14.05. LIMITATIONS. The Defending Party's obligations to
indemnify the Asserting Party pursuant to this Article XIV shall be subject
to the following limitations:
(a) No indemnification shall be required to be made by the
Defending Party until the aggregate amount of the Asserting Party's Losses
exceeds $100,000 (the "Deductible"), and then indemnification shall only be
required to be made by the Defending Party to the extent of such Losses that
exceed the Deductible; PROVIDED, HOWEVER, the Deductible shall not be
applicable to (i) the Indemnifying Seller Parties' obligation to indemnify
the Indemnified Purchaser Parties for Non-Assumed Liabilities, (ii)
Purchaser's obligation to indemnify Seller and its Interest Holders for
Assumed Liabilities, (iii) a breach by Seller of its representations set
forth in Section 7.02, the first and second sentences of Section 7.03 and
Section 7.14, or (iv) Losses resulting from fraud.
(b) All representations and warranties contained in this
Agreement shall survive the Primary Closing until the second anniversary
thereof; provided, however, that notwithstanding the foregoing, (x) the
representations and warranties contained in Section 7.02, the first and
second sentences of Section 7.03, Section 7.14 and Section 8.02 shall survive
the Primary Closing for an unlimited duration, and (y) the representations
and warranties contained in Section 7.07 shall in any event survive until the
Final Closing (the applicable period of survival being referred to as the
"Survival Period"). To the extent a claim is made in respect of a
representation or warranty within the applicable Survival Period, such
representation or warranty shall survive after the Survival Period for
purposes of such claim until such claim is finally determined or settled.
Each party shall be precluded from asserting claims against the other party
after the applicable Survival Period.
(c) The liability of the Indemnifying Seller Parties under
Section 14.01 shall be limited in the aggregate to the amount of the Purchase
Price, and the liability of each Interest
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Holder under Section 14.01 shall be limited to that portion of the Purchase
Price which is represented by the percentage of economic interests in the
Seller held by such Interest Holder (either as Member or as holder of only
economic interests).
ARTICLE XV
CONFIDENTIALITY AND PRESS RELEASES
SECTION 15.01. CONFIDENTIALITY. Each party shall hold in strict
confidence all documents and information concerning the other and its
business and properties and, if the transaction contemplated hereby should
not be consummated, such confidence shall be maintained, and all such
documents and information (in written form) shall immediately thereafter be
returned to the party originally furnishing the same.
SECTION 15.02. PRESS RELEASES. No press release or public disclosure,
either written or oral, of the existence or terms of this Agreement shall be
made by either Purchaser or Seller without the consent of the other subject
to the provisions of Section 15.03, and Purchaser and Seller shall each
furnish to the other advance copies of any release which it proposes to make
public concerning this Agreement or the transactions contemplated hereby and
the date upon which Purchaser or Seller, as the case may be, proposes to make
such press release.
SECTION 15.03. DISCLOSURES REQUIRED BY LAW. This Article XV shall not,
however, be construed to prohibit any party from making any disclosures to
any governmental authority that it is required to make by law or from filing
this Agreement with, or disclosing the terms of this Agreement to, any
institutional lender to such party, or prohibit Seller, Purchaser or any of
their affiliates from disclosing to its investors, Interest Holders,
accountants, auditors, attorneys, financing sources, investment bankers,
parent company and broker/dealers such terms of this transaction and such of
Seller's business and financial information as are reasonably necessary to be
disclosed to them in connection with the Company's financing activities and
other proper business purposes.
ARTICLE XVI
TERMINATION
SECTION 16.01. TERMINATION PRIOR TO FINAL CLOSING. This Agreement may
be terminated and the transactions contemplated herein may be abandoned, by
written notice promptly given to the other party hereto, at any time prior to
the Final Closing (excepted as noted):
(a) by mutual written consent of Seller and Purchaser;
(b) by either Purchaser or Seller, if any court of competent
jurisdiction in the United States or other United States governmental body
shall have issued an order, decree or ruling or taken any other action
permanently restraining, enjoining or otherwise permanently prohibiting the
sale of the Assets to Purchaser (which Seller and Purchaser shall have used
all reasonable efforts to have lifted or
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reversed) and such order, decree, ruling or other action shall have become
final and nonappealable;
(c) by Purchaser, but only prior to Primary Closing, if Seller
shall have materially breached any of its representations, warranties,
covenants or agreements set forth in this Agreement, and said breach is not
cured within 10 business days after written notice of the breach is
received by Seller;
(d) by Purchaser, in the event that the FCC's order granting its
consent to the assignment of the FCC Authorization to Purchaser is
reversed, on reconsideration by the FCC or after judicial review, or in the
event that Seller's rights in the FCC Authorization are revoked, denied or
conditioned on such grounds that the value of the FCC Authorization is
materially impaired, on reconsideration by the FCC or after judicial
review, and in either event, Purchaser's right to operate the Cellular
System pursuant to the FCC Authorization without materially adverse
conditions is terminated;
(e) by Seller, if any of the events set forth in Section 16.01(d)
hereof have occurred solely due to Purchaser's material acts or material
omissions to act;
(f) by Seller, but only prior to Primary Closing, if Purchaser
shall have materially breached any of its representations, warranties,
covenants or agreements set forth in this Agreement, and said breach is not
cured within 10 business days after written notice of the breach is
received by Purchaser;
(g) by either Purchaser or Seller, effective on October 1, 2000,
and on the first day of any calendar quarter thereafter, if (i) such party
has provided ninety (90) days' written notice to the other party of such
termination, (ii) the Primary Closing has not taken place at the time of
termination, and (iii) the party seeking to terminate this Agreement is not
then in material breach of any of its representations, warranties,
covenants or agreements set forth in this Agreement; or
(h) by Purchaser or Seller in accordance with the terms of
Section 9.09 hereof.
SECTION 16.02. PROCEDURE ON TERMINATION BY SELLER PURSUANT TO SECTION
16.01(e) OR (f).
(a) If Seller terminates this Agreement in accordance with the
provisions of Section 16.01(e) or (f) prior to the Primary Closing and at the
time of such termination Seller is not then in material breach of any of its
representations, warranties, covenants or agreements set forth in this
Agreement, then Seller shall be entitled to receive the Deposit as the
Liquidated Damages Amount, which the parties agree is a fair and reasonable
measure of the damages that Seller would sustain as a result of such
termination. Notwithstanding anything else set forth in this Agreement,
Seller's sole and exclusive recourse in the event Seller terminates this
Agreement in
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accordance with the provisions of Section 16.01(e) or (f) prior to the
Primary Closing shall be to receive the Deposit.
(b) If Seller terminates this Agreement in accordance with the
provisions of Section 16.01(e) after the Primary Closing and at the time of
such termination Seller is not then in material breach of any of its
representations, warranties, covenants or agreements set forth in this
Agreement, then Seller shall be entitled to receive as liquidated damages an
amount equal to the Purchase Price, PLUS an amount equal to the earnings that
have accrued on the amount in the Purchase Escrow Account from the Final
Order Date, LESS amounts paid to Purchaser under claims for indemnification
pursuant to Section 14.01 hereof, which amount the parties agree is a fair
and reasonable measure of the damages that Seller would sustain as a result
of such termination. Notwithstanding anything else set forth in this
Agreement, Seller's sole and exclusive recourse in the event Seller
terminates this Agreement in accordance with the provisions of Section
16.01(e) after the Primary Closing shall be to receive the amount set forth
in the preceding sentence.
ARTICLE XVII
BROKERS' FEES
Each party represents and warrants to the other that it shall be solely
responsible for the payment of any fee or commission due to any broker or
finder it has engaged with respect to this transaction and the other party
hereto shall be indemnified for any liability with respect thereto pursuant
to Article XIV hereof.
ARTICLE XVIII
CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
PURCHASER, SELLER AND THE INTEREST HOLDERS HEREBY CONSENT TO THE
JURISDICTION OF THE FEDERAL AND STATE COURTS OF THE STATE OF OHIO, AS WELL AS
TO THE JURISDICTION OF ALL COURTS FROM WHICH AN APPEAL MAY BE TAKEN FROM THE
AFORESAID COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING
ARISING OUT OF ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
PURCHASER, SELLER AND THE INTEREST HOLDERS ALSO WAIVE TRIAL BY JURY IN ANY
ACTION BROUGHT ON OR WITH RESPECT TO THIS AGREEMENT.
ARTICLE XIX
MISCELLANEOUS
SECTION 19.01. ADDITIONAL INSTRUMENTS OF TRANSFER. (a) From time to
time after the Closing, each party shall, if requested by another party,
make, execute and deliver such additional assignments, bills of sale, deeds
and other instruments, as may be reasonably necessary or proper to carry out
the specific provisions of this Agreement, including transfer to Purchaser
all of Seller's right, title and interest in and to the Assets. Such efforts
and assistance shall be without cost to any party.
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(b) Anything in this Agreement to the contrary notwithstanding, Seller
is not obligated to sell, assign, transfer or convey to Purchaser any of
their rights and obligations in and to any Interest without first obtaining
all necessary approvals, consents or waivers. To the extent any of the
approvals, consents or waivers described in Section 10.04 have not been
obtained by Seller as of the Primary Closing and Purchaser elects to proceed
with the Primary Closing, Seller shall, for a period equal to the longer of
six months after the Primary Closing, the Final Closing Date, or the
remaining term of such Interest, use all reasonable efforts to (i) obtain the
consent of any such third party; (ii) cooperate with Purchaser in any
reasonable and lawful arrangements designed to provide the benefits
(including, without limitation, the payment to Purchaser of any monies
received by Seller in connection therewith) of such Interest to Purchaser so
long as Purchaser performs all obligations with respect to the Interest (and
the payment of all expenses in connection therewith); and (iii) enforce, at
the request of Purchaser and at the expense and for the account of Purchaser,
any rights of Seller arising from such Interest against such issuer thereof
or the other party or parties thereto (including the right to elect to
terminate any such Interest in accordance with the terms thereof upon the
request of Purchaser); PROVIDED, HOWEVER, that neither Purchaser nor Seller
shall be obligated to pay any consideration or other sums therefor (except
for filing fees and other ordinary administrative charges and except as set
forth above) to the third party from whom such approval, consent or waiver is
requested.
SECTION 19.02. NOTICES. All notices and other communications required
or permitted to be given hereunder shall be in writing and shall be deemed to
have been duly given if delivered, sent by telecopier, recognized overnight
delivery service or mailed, registered or certified mail, return receipt
requested, postage prepaid, to the following addresses:
(i) If to Purchaser:
x/x Xxxxxx Xxxxxxxxxxxxxx Xxxxxxxxxxx
00000 X. Xxxxxxxx Extension
Suite 200
Oklahoma City, Oklahoma 73114
Attention: Xxxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx, LLP
Xxx XxxxXxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
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(ii) If to Seller:
Ohio Wireless Communications, L.L.C.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
with copies to:
Xxxxxx X. Xx Xxxxxx, Esq.
00000 Xxxxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Xxxxxx & Naftalin, L.L.P.
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
Notices delivered personally shall be effective upon delivery. Notices
transmitted by telecopy shall be effective when received, provided that the
burden of proving notice when notice is transmitted by telecopy shall be the
responsibility of the party seeking such notice . Notices delivered by
overnight mail shall be effective when received. Notices delivered by
registered or certified mail shall be effective on the date set forth on the
receipt of registered or certified mail, or 72 hours after mailing, whichever
is earlier.
SECTION 19.03. EXPENSES. Each party shall bear its own expenses and
costs, including the fees of any corporate or FCC attorney retained by it,
incurred in connection with the preparation of this Agreement and the
consummation of the transactions contemplated hereby.
SECTION 19.04. TRANSFER TAXES. Seller shall pay any use, sales or
transfer taxes imposed in connection with the sale and delivery of the Assets
and rights acquired by Purchaser under this Agreement.
SECTION 19.05. COLLECTION PROCEDURES. From and after the Primary
Closing, Purchaser shall have the right and authority, at its expense, to
collect for its account all items to which it is entitled as provided in this
Agreement and to endorse with the name of Seller any checks or drafts
received on account of any such items.
SECTION 19.06. SPECIFIC PERFORMANCE. The parties recognize and
acknowledge that in the event Seller shall fail to perform its obligations
under the terms of this Agreement, money
- 25 -
damages alone will not be adequate to compensate Purchaser. The parties,
therefore, agree and acknowledge that in the event Seller fails to perform
its obligations under this Agreement, Purchaser shall be entitled, in
addition to any action for monetary damages, and other rights and remedies on
account of such failure, to specific performance of the terms of this
Agreement and of the covenants and obligations hereunder.
SECTION 19.07. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio (without
application of principles of conflicts of law).
SECTION 19.08. ASSIGNMENT. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (by merger or other operation of law or otherwise) without the
prior written consent of the other party, which consent will not be
unreasonably withheld, except that Purchaser shall have the right (i) prior
to the Primary Closing, to assign its rights and obligations under this
Agreement to (A) another entity controlled by Xxxxxx Communications
Corporation, or (B) any other entity which is qualified under FCC regulations
to hold the FCC Authorization and has the financial resources available to
consummate the transactions contemplated hereby, subject to Seller's
approval, such approval not to be unreasonably withheld, and (ii) after the
Primary Closing, to assign its rights and obligations under this Agreement to
any third party. Any such assignment shall become effective upon the
assignee's execution of documents reasonably acceptable to Seller pursuant to
which the assignee assumes all of the obligations and liabilities of
Purchaser under this Agreement.
SECTION 19.09. SUCCESSORS AND ASSIGNS. All agreements made and entered
into in connection with this transaction shall be binding upon and inure to
the benefit of the parties hereto, their successors and assigns.
SECTION 19.10. AMENDMENTS; WAIVERS. No alteration, modification or
change of this Agreement shall be valid except by an agreement in writing
executed by the parties hereto. No failure or delay by any party hereto in
exercising any right, power or privilege hereunder (and no course of dealing
between or among any of the parties) shall operate as a waiver of any such
right, power or privilege. No waiver of any default on any one occasion
shall constitute a waiver of any subsequent or other default. No single or
partial exercise of any such right, power or privilege shall preclude the
further or full exercise thereof.
SECTION 19.11. ENTIRE AGREEMENT. This Agreement merges all previous
negotiations and agreements between the parties hereto, either verbal or
written, including that certain letter agreement dated April 3, 1998, and
constitutes the entire agreement and understanding between the parties with
respect to the subject matter of this Agreement.
SECTION 19.12. THIRD PARTIES. Except as set forth in Article XIV
hereof, nothing herein, expressed or implied, is intended to or shall confer
on any person other than the parties hereto any rights, remedies, obligations
or liabilities under or by reason of this Agreement.
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SECTION 19.13. SEVERABILITY. If any provision of this Agreement or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by
law, but only as long as the continued validity, legality and enforceability
of such provision or application does not materially (a) alter the terms of
this Agreement, (b) diminish the benefits of this Agreement or (c) increase
the burdens of this Agreement, for any person.
SECTION 19.14. SECTION HEADINGS. The section headings contained in
this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement.
SECTION 19.15. INTERPRETATION. As both parties have participated in
the drafting of this Agreement, any ambiguity shall not be construed against
either party as the drafter.
SECTION 19.16. FURTHER ASSURANCES. Seller agrees to provide to
Purchaser from time to time any information that Seller possesses with
respect to the operation of the Business and Assets prior to the Closing
which Purchaser requests in the future in connection with Purchaser's
financing efforts now or in the future or in connection with any FCC or other
regulatory filing.
SECTION 19.17. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which when so executed shall be an original, but
all of which together shall constitute one agreement.
SECTION 19.18. INTEREST HOLDERS' AGENT. Each Interest Holder hereby
authorizes and appoints Xxxxxx Xxxxxxx (the "Interest Holders' Agent") as
its, his or her exclusive agent and attorney-in-fact to act on behalf of each
of them with respect to all matters which are subject of this Agreement and
the Exhibits hereto, including, without limitation, (a) receiving or giving
all notices, instructions, other communications, consents or agreements that
may be necessary, required or given hereunder and (b) asserting, settling,
compromising, or defending, or determining not to assert, settle, compromise
or defend, (i) any claims which any Interest Holder may assert, or have the
right to assert, against Purchaser, or (ii) any claims which Purchaser may
assert, or have the right to assert, against any Interest Holder. The
Interest Holders' Agent hereby accepts such authorization and appointment,
provided that Interest Holders' Agent shall have no duty or liability
whatsoever to Purchaser in his capacity as Interest Holders' Agent. In
addition, the Interest Holders agree that the Interest Holders' Agent shall
have no personal liability to the Interest Holders for any action taken
hereunder or for any omission to act where such action or omission is not the
result of gross negligence or willful misconduct on the part of the Interest
Holders' Agent. Upon the receipt of written evidence satisfactory to
Purchaser to the effect that the Interest Holders' Agent has been substituted
as agent of the Interest Holders by reason of his death, disability or
resignation, Purchaser shall be entitled to rely on such substituted agent to
the same extent as it was theretofore entitled to rely upon the Interest
Holders' Agent with respect to the matters covered by this SECTION 19.18. No
Interest Holder shall act with respect to any of the matters which are the
subject of this Agreement and the Exhibits hereto except through the Interest
Holders' Agent. The Interest Holders acknowledge and agree that Purchaser
may deal
- 27 -
exclusively with the Interest Holders' Agent in respect of such matters, that
the enforceability of this SECTION 19.18 is material to Purchaser, and that
Purchaser has relied upon the enforceability of this SECTION 19.18 in
entering into this Agreement.
SECTION 19.19. REQUISITE PERCENTAGE. Seller covenants to use its
reasonable best efforts to obtain every Interest Holder's signature to this
Agreement. Purchaser and Seller agree, however, that this Agreement shall
become effective once there have been obtained the signatures of Interest
Holders holding at least 95% of the economic interests in Seller.
[THE REST OF THIS PAGE IS LEFT BLANK INTENTIONALLY.]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed by its duly authorized representative as of the day and year
first above written.
SELLER:
OHIO WIRELESS COMMUNICATIONS, L.L.C.
By: /s/ Xxxxxx Xxxxxxx Date: 8/3/98
------------------------------------------- ------------------------
Xxxxxx Xxxxxxx
General Manager
INTEREST HOLDER:
By: /s/ Xxxxxx Xxxxxxx Date: 8/3/98
------------------------------------------- ------------------------
Name: Xxxxxx Xxxxxxx
Title:
By: /s/ XXXXXXX X. XXXX
-------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Partner
By: /s/ XXXXXXX X. XXXX
-------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Co-trustee of the Xxxxxxx X. Xxxx
Charitable Remainder Trust dated 7/10/98
By: /s/ XXXXXXX X. XXXX
-------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Co-trustee of the Xxxxxxx X. Xxxx
Charitable Remainder Trust dated 7/10/98
By: /s/ XXXX XXXXX XXXXXX
-------------------------------------------
Name: Xxxx Xxxxx Xxxxxx
Title: Trustee, Prairie Schooner Trust
By: /s/ XXXXX XXXXXXXXX
-------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title:
By: /s/ XXXXXX XXXXXXXXX
-------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title:
By: /s/ XXXXXX X. XXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title:
By: /s/ XXXXX X. XXX
-------------------------------------------
Name: Xxxxx X. Xxx
Title:
By: /s/ XXXXX X. XXXX
-------------------------------------------
Name: Xxxxx X. Xxxx
Title:
By: /s/ XXXX X. XXXXXX
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Partner
By: /s/ XXXXX X. XXXXXX
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Partner
By: /s/ XXXXXXX X. XXXXXX
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title:
By: /s/ XXXXX XXXXXX
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: Trustee for Xxxxx Xxxxxx Trust
By: /s/ XXXXXX XXXXXXXX
-------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Partner
By: /s/ XXXXXX X. XXXXXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Trustee of Xxxxxx X. Xxxxxxxx Charitable
Remainder Trust dated July 10, 1998
By: /s/ XXXXX XXXXXX
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: By Xxxxxxxx Xxxxxx under Power of Attorney
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Partner
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Trustee of the Xxxxxxx X. Xxxxxxxx
Charitable Remainder Trust dated 7/10/98
By: /s/ XXXX XXXXX
-------------------------------------------
Name: Xxxx Xxxxx
Title:
By: /s/ XXXXX X. XXXXX
-------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Partner
By: /s/ XXXXXX X. XXXX
-------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Partner
By: /s/ XXXXXXXX X. XXXXX
-------------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title:
By: /s/ XXXXXXX X. THAMBILL
-------------------------------------------
Name: Xxxxxxx X. Thambill
Title: Partner
By: /s/ XXXXX X. XXXXXXXX
-------------------------------------------
Name: Xxxxx X. XXxxxxxx
Title: Partner
PURCHASER:
XXXXXX CELLULAR OF SANDUSKY, INC.
By: /s/ Xxxxxxx X. Xxxxxx Date: 7/30/98
------------------------------------------- ------------------------
Name: Xxxxxxx X. Xxxxxx
Title: CEO
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