ASSET PURCHASE AGREEMENT
BY AND BETWEEN
THE CITY OF FAIRBANKS
AND
PTI COMMUNICATIONS OF ALASKA, INC.
DATED AUGUST 20, 1996
TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE; PURCHASE PRICE;
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ASSUMPTION OF LIABILITIES....................... 1
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1.1 AGREEMENT TO PURCHASE ...................... 1
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1.2 DEFINITION OF ASSETS ....................... 1
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1.3 PURCHASE PRICE ............................. 2
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1.4 PAYMENT OF PURCHASE PRICE .................. 3
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1.5 ASSUMPTION OF LIABILITIES .................. 3
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1.6 CONTRACTS .................................. 4
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1.7 LIABILITIES NOT ASSUMED .................... 4
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1.8 EMPLOYEES .................................. 4
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1.9 PERMITS, APPROVALS ......................... 4
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2. ACQUIRED AND EXCLUDED ASSETS ..................... 4
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2.1 ASSETS TO BE ACQUIRED ...................... 4
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2.2 EXCLUDED ASSETS ............................ 4
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3. TRANSFER AND ASSIGNMENT OF ASSETS ................ 5
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3.1 INSTRUMENTS OF CONVEYANCE AND TRANSFER ..... 5
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3.2 ASSIGNMENTS OF CERTAIN CONTRACTS AND RIGHTS. 5
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3.3 FURTHER ASSURANCES ......................... 5
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3.4 RIGHTS OF WAY, EASEMENTS, LICENSES,
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LEASES, PERMITS, AND FRANCHISES ............ 6
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3.5 REAL PROPERTY, CONVEYANCE .................. 6
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4. CLOSING .......................................... 7
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4.1 CLOSING DATE AND TIME ...................... 7
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4.2 SELLER'S OBLIGATIONS AT CLOSING ............ 7
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4.3 BUYER'S OBLIGATIONS AT CLOSING ............. 7
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5. REPRESENTATIONS AND WARRANTIES OF THE SELLER ..... 7
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5.1 STANDING AND POWER ......................... 7
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5.2 AUTHORITY .................................. 7
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5.3 FINANCIAL INFORMATION ...................... 8
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5.4 ABSENCE OF CERTAIN CHANGES OR EVENTS ....... 8
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5.5 TITLE TO PROPERTIES, ABSENCE OF LIENS
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AND ENCUMBRANCES .......................... 10
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5.6 LIST OF PROPERTIES, CONTRACTS AND
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OTHER DATA ............................... 10
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5.7 LITIGATION ................................. 11
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5.8 GOVERNMENT APPROVALS ....................... 12
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5.9 INSURANCE .................................. 12
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5.10 CONDITION OF THE ASSETS .................... 12
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5.11 ACCOUNTS RECEIVABLE ........................ 12
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PTI COMMUNICATIONS OF ALASKA, INC.
i - ASSET PURCHASE AGREEMENT
5.12 NO DEFAULTS ................................ 12
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5.13 COMPLIANCE WITH APPLICABLE LAW ............. 13
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5.14 ABSENCE OF UNDISCLOSED LIABILITIES ......... 13
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5.15 TAXES ...................................... 13
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5.16 BROKERS .................................... 13
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5.17 HAZARDOUS SUBSTANCES ....................... 14
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5.18 STORAGE TANKS .............................. 14
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5.19 ACCESS LINES AND CUSTOMERS ................. 14
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5.20 EMPLOYEE BENEFIT PLANS ..................... 14
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6. REPRESENTATIONS AND WARRANTIES OF THE BUYER ...... 15
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6.1 ORGANIZATION AND STANDING .................. 15
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6.2 AUTHORITY .................................. 15
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7. COVENANTS OF THE SELLER .......................... 16
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7.1 ACCESS TO PROPERTIES, BOOKS AND RECORDS .... 16
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7.2 CONDUCT OF BUSINESS ........................ 16
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7.3 DEFEASANCE ................................. 17
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7.4 TRANSFER FEES .............................. 17
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7.5 SCHEDULE ELECTION .......................... 18
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7.6 LAND FOR DIVISION HEADQUARTERS ............. 18
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7.7 SELLER FEES ................................ 18
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8. COVENANTS OF THE BUYER ........................... 18
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9. COVENANTS OF THE BUYER AND SELLER ................ 19
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9.1 REGULATORY APPROVALS ....................... 19
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9.2 INSPECTION AND PRESERVATION OF
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RECORDS: FURTHER ASSISTANCE .............. 19
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9.3 PUBLIC ANNOUNCEMENTS ....................... 20
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9.4 INTERVENTION IN COMMISSION HEARINGS ........ 20
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9.5 TAXES ...................................... 21
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9.6 ALLOCATION OF PURCHASE PRICE ............... 21
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9.7 UTILIDOR EASEMENT .......................... 21
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9.8 GLOBE ADMINISTRATIVE BUILDING LEASE ........ 22
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9.9 TRANSFER OF FMUS MIS OPERATIONS ............ 22
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9.10 ALASKA DIVISION HEADQUARTERS ............... 22
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9.11 COOPERATION ................................ 22
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10. CONDITIONS TO OBLIGATIONS OF THE SELLER .......... 22
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10.1 COMPLIANCE WITH AGREEMENT .................. 23
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10.2 REPRESENTATIONS, WARRANTIES AND COVENANTS .. 23
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PTI COMMUNICATIONS OF ALASKA, INC.
ii - ASSET PURCHASE AGREEMENT
10.3 CERTIFICATE OF THE BUYER ................... 23
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10.4 CONSENTS AND APPROVALS ..................... 23
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10.5 COUNCIL AND VOTER APPROVAL ................. 23
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10.6 ALL PROCEEDINGS TO BE SATISFACTORY ......... 23
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10.7 DEFEASANCE ................................. 23
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10.8 ADVERSE PROCEEDINGS ........................ 24
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10.9 CONTINGENT CLOSING ......................... 24
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11. CONDITIONS TO OBLIGATIONS OF THE BUYER ........... 24
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11.1 COMPLIANCE WITH AGREEMENT .................. 24
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11.2 REPRESENTATIONS, WARRANTIES AND COVENANTS .. 24
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11.3 CERTIFICATE OF THE SELLER .................. 24
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11.4 CONSENTS AND APPROVALS ..................... 24
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11.5 COUNCIL AND VOTER APPROVAL ................. 24
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11.6 ALL PROCEEDINGS TO BE SATISFACTORY.......... 25
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11.7 OPINION OF COUNSEL ......................... 25
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11.8 DEFEASANCE ................................. 25
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11.9 ADVERSE PROCEEDINGS ........................ 25
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11.10 THIRD-PARTY CONSENTS AND APPROVALS ......... 25
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11.11 CONTINGENT CLOSING ......................... 25
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11.12 NO MATERIAL ADVERSE CHANGE ................. 26
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11.13 UTILIDOR EASEMENT .......................... 26
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11.14 GLOBE ADMINISTRATIVE BUILDING LEASE ........ 26
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11.15 RELOCATION OF MIS .......................... 26
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12. TERMINATION ...................................... 26
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13. AMENDMENT AND WAIVERS ............................ 27
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13.1 AMENDMENTS, MODIFICATIONS, ETC. ............. 27
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13.2 WAIVERS ..................................... 27
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14. SURVIVAL OF REPRESENTATIONS, WARRANTIES
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AND COVENANTS .................................. 27
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15. INDEMNIFICATION .................................. 27
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15.1 INDEMNIFICATION BY THE BUYER ................ 27
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15.2 INDEMNIFICATION BY THE SELLER ............... 28
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15.3 PROCEDURE FOR INDEMNIFICATION WITH
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RESPECT TO THIRD-PARTY CLAIMS ............... 28
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15.4 MUTUAL INDEMNIFICATION ...................... 29
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15.5 HAZARDOUS SUBSTANCES INDEMNIFICATION ........ 29
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15.6 LIMITATION ON INDEMNIFICATION ............... 30
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16. EXPENSES ........................................ 30
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PTI COMMUNICATIONS OF ALASKA, INC.
iii - ASSET PURCHASE AGREEMENT
17. ASSIGNMENT ...................................... 30
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18. ENTIRE AGREEMENT ................................ 30
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19. THIRD-PARTY BENEFICIARIES ....................... 30
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20. COUNTERPARTS .................................... 31
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21. SECTION HEADINGS ................................ 31
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22. APPLICABLE LAW .................................. 31
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23. CONFIDENTIAL INFORMATION ........................ 31
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24. NOTICES ......................................... 32
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25. FURTHER ASSURANCES .............................. 33
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SCHEDULES:
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SCHEDULE 1.2 REAL PROPERTY OWNED
SCHEDULE 1.8 EMPLOYEES
SCHEDULE 1.9 PERMITS AND APPROVALS
SCHEDULE 3.1 XXXX OF SALE AND ASSIGNMENT
SCHEDULE 3.4 RIGHTS OF WAY, EASEMENTS, LICENSES, LEASES
PERMITS AND FRANCHISES
SCHEDULE 5.2(B) AUTHORITY
SCHEDULE 5.2(C) AUTHORITY
SCHEDULE 5.3 FINANCIAL INFORMATION
SCHEDULE 5.4 CHANGES IN ASSETS
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PTI COMMUNICATIONS OF ALASKA, INC.
iv - ASSET PURCHASE AGREEMENT
SCHEDULE 5.5 DEFECTS IN TITLE
SCHEDULE 5.6(a) LISTS OF PROPERTIES, CONTRACTS AND OTHER DATA
SCHEDULE 5.6(b) LISTS OF PROPERTIES, CONTRACTS AND OTHER DATA
SCHEDULE 5.6(c) LISTS OF PROPERTIES, CONTRACTS AND OTHER DATA
SCHEDULE 5.6(d) LISTS OF PROPERTIES, CONTRACTS AND OTHER DATA
SCHEDULE 5.6(e) LISTS OF PROPERTIES, CONTRACTS AND OTHER DATA
SCHEDULE 5.6(f) LISTS OF PROPERTIES, CONTRACTS AND OTHER DATA
SCHEDULE 5.7 LITIGATION
SCHEDULE 5.8 GOVERNMENTAL APPROVALS
SCHEDULE 5.9 INSURANCE
SCHEDULE 5.10 CONDITION OF ASSETS
SCHEDULE 5.12 DEFAULTS
SCHEDULE 5.13 APPLICABLE LAW COMPLIANCE
SCHEDULE 5.14 UNDISCLOSED LIABILITIES
SCHEDULE 5.17 HAZARDOUS SUBSTANCES
SCHEDULE 5.18 STORAGE TANKS
SCHEDULE 5.20 EMPLOYEE BENEFIT PLANS
SCHEDULE 6.2(b) CONFLICTS, BREACHES AND VIOLATIONS CAUSED BY
AGREEMENT
SCHEDULE 6.2(c) CONFLICTS, BREACHES AND VIOLATIONS CAUSED BY
AGREEMENT
SCHEDULE 7.3 BOND DEFEASANCE
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PTI COMMUNICATIONS OF ALASKA, INC.
v - ASSET PURCHASE AGREEMENT
SCHEDULE 7.4 TRANSFER FEES
SCHEDULE 9.1 REGULATORY APPROVALS
The above mentioned schedules have been omitted. The
Company agrees to furnish supplementally a copy of
any omitted schedule to the Commission upon request.
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PTI COMMUNICATIONS OF ALASKA, INC.
vi - ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT ("Agreement"),
dated as of August 20, 1996, is being made and
entered into by and between the City of Fairbanks,
a municipal corporation located in the State of
Alaska (the "Seller") and PTI Communications of
Alaska, Inc., an Alaskan corporation ("Buyer").
WITNESSETH:
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WHEREAS, the Seller is the owner of telephone
local exchange, cellular and deregulated marketing;
electric transmission distribution; and water, sewer
and waste water operations which provide such utility
services within the City of Fairbanks and the
surrounding area ("FMUS"); and
WHEREAS, the Seller desires to sell and Buyer
desires to purchase, subject to the terms and
conditions set forth herein, the telephone local
exchange, cellular and deregulated marketing and
certain common assets and operations owned by
Seller; and
WHEREAS, the Seller further desires to sell
and Buyer further desires to purchase, subject to
terms and conditions set forth herein, certain
working capital and restricted assets of FMUS;
NOW THEREFORE, in consideration of the
premises and the mutual covenants and agreements
hereinafter set forth, the Seller and Buyer
("Parties") hereto agree as follows:
1. AGREEMENT TO PURCHASE; PURCHASE PRICE;
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ASSUMPTION OF LIABILITIES.
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1.1 AGREEMENT TO PURCHASE. Subject to
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the terms and conditions contained herein,
Seller agrees to convey, transfer, assign and
deliver to Buyer, and Buyer agrees to purchase
and accept all of Seller's right, title and
interest in and to all of the Assets, as
defined herein, free and clear of all
security interests, liens or encumbrances.
1.2 DEFINITION OF ASSETS. For purposes of
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this Agreement, except for the Excluded Assets,
Assets shall mean properties, books, records,
subscriber lists, licenses, authorizations,
tangible or intangible, real or personal that
are currently in existence and are necessary
to conduct the local telephone exchange, cellular,
deregulated marketing and common businesses
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PTI COMMUNICATIONS OF ALASKA, INC.
1 - ASSET PURCHASE AGREEMENT
of the Seller, including but not limited to those assets
defined on the Financial Statements of FMUS as of
12/31/95 in the following amounts:
Telephone Regulated Utility Plant and Equipment $104,709,308
Teleconnect Equipment $ 6,341,909
Cellular Equipment $ 3,713,126
Common Plant and Equipment $ 3,487,481
Land as set forth in Schedule 1.2
and incorporated herein by reference
Further, all assets acquired from 12/31/95 in the
normal course of business until the date of Closing
will be treated as an included asset including
Working Capital and Restricted Assets, defined in
the FMUS Financial Statements as: (i) Revenue Fund
Cash and Cash Investments, (ii) Accounts Receivable
less Allowance for Doubtful Accounts, (iii) Other
Receivables, (iv) Unbilled Receivables, (v) Estimated
Access Revenues Receivable, (vi) Prepaid Expenses and
Deposits and (vii) Notes Receivable (Current Portion),
(viii) Compensatory Balance, (ix) Construction Fund
Investments, (x) Revenue Bond Fund Investments,
(xi) Customer Deposits and Interests, (xii) Notes
Receivable and (xiii) Investment in Sales Type Leases
and the inventory of materials and supplies that are
necessary to conduct the telephone local exchange,
cellular deregulated marketing, and common
functions of FMUS.
1.3 PURCHASE PRICE. The cash purchase price
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for the Assets to be transferred hereunder shall be
One Hundred Twelve Million Dollars ($112,000,000)
and shall be subject to the following adjustments
("Purchase Price"). The Purchase Price shall be
adjusted downward on a dollar for dollar basis
to the extent that the total combined balances
of the accounts identified in the Financial
Statements as Revenue Fund Cash and Cash
Investment, Compensatory Balance, Construction Fund
Investment and Revenue Bond Fund Investments at
Closing is less on the date of Closing than
$19,348,989. Purchase Price shall be adjusted
upward on a dollar for dollar basis to the extent
that the total combined balances of the accounts
identified in the Financial Statements as Revenue
Fund Cash and Cash Investment, Compensatory Balance,
Construction Fund Investment and Revenue Bond
Fund Investments at Closing is greater on the date
of Closing than $19,348,989. In the event that
Seller is unable to sell to Buyer Block 13 or
Block 66 described in Section 7.6, the Purchase
Price shall be further adjusted downward on a
dollar for dollar basis in the amount of $800,000
for Block 13 or $400,000 for Block 66
respectively. As further consideration, Buyer
will waive any claim or rights to all associated
funding in excess of the accumulated benefit
obligation that will exist upon termination and
vesting for those current and former FMUS
employees participating in the initial PERS
Pension Plan, as of the most recent measurement date.
Furthermore, Buyer shall also pay to Seller at
Closing One Million Five Hundred Thousand Dollars
($1,500,000) which amount represents pre-payment of all
current and future taxes, fees, assessments or other
governmenal charges required by or imposed by the City of
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PTI COMMUNICATIONS OF ALASKA, INC.
2 - ASSET PURCHASE AGREEMENT
Fairbanks, including any entities or departments
which it controls or which collects for the City,
which pre-payment represents a period commencing
January 1, the year following Closing and
ten (10) years thereafter.
1.4 PAYMENT OF PURCHASE PRICE. The Purchase
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Price shall be payable as follows:
(a) At the Closing, the Purchase Price,
less a credit of the Xxxxxxx Money and interest
earned described in (b) below, shall be paid by
Buyer to the Seller by wire transfer of immediately
available funds to such bank account or accounts as
may be designated in writing by the Seller.
(b) Buyer has paid to the Seller an
amount equal to Seven Hundred Thirty Thousand Four
Hundred Thirty-five Dollars ($730,435.00) (the
"Xxxxxxx Money") which, in combination with a
payment by Golden Valley Electric Association
(GVEA) and Fairbanks Sewer and Water (FSW) was
required by Seller's Resolution No. 3639 as
Amended. The Xxxxxxx Money shall be held by
the Seller and invested in a manner mutually
acceptable to the Buyer and Seller. If this
Agreement is terminated without a Closing
due to either the breach of this Agreement
by the Seller, the failure to obtain any
condition to the obligations of Buyer, then
the Xxxxxxx Money and the interest earned
thereon shall be returned to Buyer. If this
Agreement is terminated due to the breach of
this Agreement by the Buyer, then the Xxxxxxx
Money and the interest earned thereon shall
be retained by Seller. If this Agreement
is not terminated and the Closing occurs,
then the Xxxxxxx Money and the interest earned
shall be credited against the Purchase
Price at the Closing.
1.5 ASSUMPTION OF LIABILITIES. At the
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Closing, and as additional consideration for the
purchase of the Assets, the Buyer shall assume,
subject to the terms and conditions herein, any and
all liabilities and obligations related to or arising
from the ownership and use of the Assets during
the normal course of business consistent with
past practices and as defined in the FMUS Financial
Statements as: (i) Current Portion of Capital Lease
Obligations; (ii) Accounts Payable; (iii) Estimated
Access Revenues Payable; (iv) Revenues Billed in
Advance; (v) Customer Deposits and Interest; and
(vi) Accrued Self Insurance Reserves, but only for
claims incurred prior to Closing and paid by the
City within twelve (12) months after the Closing
and only to the extent of the amount that said
paid claims have actually been reserved
on Seller's books as of 12/31/95. Notwithstanding
this Section 1.5, Buyer will assume all long term
capital lease obligations of FMUS and only the
accrued payroll, leave and taxes associated with
accrued payroll in effect at Closing for those
Employees identified in Schedule 1.8. The Buyer
shall be responsible for that litigation to the
extent it arises from a cause or condition first
arising after Buyer takes ownership of the Assets.
The Buyer shall execute and deliver to the Seller
assumption and lease agreements as described
herein, pursuant to which the Buyer shall agree
to pay, perform and discharge when due after
the Closing Date the liabilities and obligations
("Liabilities") of the Seller listed herein.
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PTI COMMUNICATIONS OF ALASKA, INC.
3 - ASSET PURCHASE AGREEMENT
1.6 CONTRACTS. Buyer will acquire, subject
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to the terms thereof, only those contracts related
to the Assets as set forth in Schedule 5.6 and all
rights, privileges, benefits, obligations and
interests under the contracts, agreements, consents
or licenses with respect to intangible or personal
property or interest therein, and all records,
including plant, accounting, customer service and
those records which identify and describe the
physical property being sold hereby. Buyer will
further acquire all rights, privileges, benefits,
obligations and interest under all contracts,
agreements, consents or licenses with respect to
the intangible or personal property or interest
therein, and all records, including plant,
accounting, central office, customer service and
those records which identify and describe
the physical property being sold hereby.
1.7 LIABILITIES NOT ASSUMED. Notwithstanding
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anything in this Agreement, Buyer shall not assume any,
and the Seller shall retain and be responsible for, all
liabilities and obligations not expressly assumed by
Buyer pursuant to the terms and conditions herein,
including but not limited to all outstanding revenue
bonds, all liabilities under any deferred compensation
plans or programs interfund amounts due and owing
between FMUS and Seller, any litigation either now
existing or hereafter instituted, except that litigation
set forth in Section 1.5, accrued payroll and
leave for FMUS Employees not identified in Schedule 1.8,
all environmental matters arising out of or related to
Seller's use or operation of the Assets prior to
Closing, except as provided in Section 15.5.
1.8 EMPLOYEES. At Closing, the Buyer shall employ
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only those employees of Seller who:
(a) as of the Date of this Agreement are
regular, full-time employees of Seller,
assigned to the Departments set forth in
Schedule 1.8; and
(b) are continuously employed in any Department
set forth in Schedule 1.8 in regular full-time
status from the Date of this Agreement until
the Closing Date ("Employees").
1.9 PERMITS, APPROVALS. Buyer will acquire from Seller
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those permits, approvals and the like set forth in Schedule
1.9, to the extent transferable pursuant to the terms thereof.
2. ACQUIRED AND EXCLUDED ASSETS.
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2.1 ASSETS TO BE ACQUIRED. At the Closing (as
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defined in Section 4.1 hereof), the Seller shall sell,
assign, convey, transfer and deliver, or cause to be
sold, assigned, conveyed, transferred and delivered,
to Buyer and its permitted successors and assigns,
the Assets as set forth herein, except the
Excluded Assets.
2.2 EXCLUDED ASSETS. All assets under any
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deferred compensation plans or programs, Utilidor
loan receivable, the FMUS power plant and
adjacent warehouse, Globe Street
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PTI COMMUNICATIONS OF ALASKA, INC.
4 - ASSET PURCHASE AGREEMENT
Administration Building and associated land
located at 000 0xx Xxxxxx, Xxxxxxxxx, XX and
all hardware and software ssociated with the IBM
AS400 computer system shall be retained by Seller,
any assets which relate to electric transmission
and distribution business and are conveyed to Golden
Valley Electric Association, and any assets which
relate to water and waste water utilities that
are conveyed to Fairbanks Sewer and Water ("Excluded
Assets") and Seller or its assigns shall have full
responsibility and obligation with respect to the
Excluded Assets.
3. TRANSFER AND ASSIGNMENT OF ASSETS.
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3.1 INSTRUMENTS OF CONVEYANCE AND TRANSFER. The
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sale, assignment, conveyance, transfer and delivery of
the Assets shall be effected by the Seller's execution
and delivery to the Buyer, on the Closing Date, of a
xxxx of sale in substantially the form of the Xxxx of
Sale and Assignment attached hereto as Schedule 3.1,
together with such other General Warranty Deeds, bills
of sale, endorsements, assignments and other instruments
of transfer and conveyance in form and substance
sufficient to vest in the Buyer all of the Seller's right,
title and interest in and to the Assets and as shall
reasonably be required by the Buyer or its counsel.
In addition to the extent permitted by law,
Buyer shall be entitled to the benefit of adverse
possession, prescriptive use or the like by Seller,
if any, and tacking to establish such rights.
3.2 ASSIGNMENT OF CERTAIN CONTRACTS AND RIGHTS.
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The Seller and Buyer shall use their reasonable best
efforts prior to and, if necessary, after the Closing
Date to obtain such consents or approvals as may be
required for the assignment or transfer of the
contracts, agreements, leases, commitments
and rights to be transferred to the Buyer under
Sections 1.6 and 1.9; provided, however, that the
Seller shall not be required to institute any
litigation, or to pay or agree to pay any amount,
in order to obtain any such consent or approval. If
any such consent or approval is not obtained,
the Seller and the Buyer agree to cooperate in any
reasonable arrangements (which may include, in the
case of leased property, a sublease or license
thereof or operating agreement with respect thereto)
designed to provide for the Buyer all of the benefits
(and to assure that the Seller will be
effectively relieved from related liabilities)
under such contract, agreement, lease, commitment
or right. Nothing in this Agreement shall be
construed as an attempt or agreement to assign (a)
any contract, agreement, lease, commitment or right
which is nonassignable without the consent of the
other Party or Parties thereto unless such consent shall
have been given, or (b) any contract or claim as to
which all the remedies for the enforcement thereof
would not pass to the Buyer as an incident of the
assignments provided for by this Agreement.
3.3 FURTHER ASSURANCES. Subject to the terms
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hereof, the Seller agrees that, at any time and
from time to time on and after the Closing Date,
it will, upon the request of the Buyer and
without further consideration, take any and all
commercially reasonable steps necessary to place
the Buyer in possession and operating control
of the Assets as provided for herein, and will
do, execute, acknowledge and deliver, or will
cause to be done, executed, acknowledged and
delivered, all such further acts, deeds,
assignments, conveyances, transfers, powers of
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PTI COMMUNICATIONS OF ALASKA, INC.
5 - ASSET PURCHASE AGREEMENT
attorney or assurances as may be reasonably required
in order fully to sell, assign, convey, transfer, grant,
assure and confirm to the Buyer, or to aid and assist in
the collection of or reducing to possession by the
Buyer of, all of the Assets, or to vest in the Buyer
good, valid and marketable title, subject to the
encumbrances permitted by this Agreement, to the Assets.
Subject to the terms hereof, the Buyer agrees that, at
any time and from time to time on and after the Closing
Date, it will, upon the request of the Seller and without
further consideration, take any and all commercially
reasonable steps necessary to assume the liabilities
and obligations of the Seller with respect to the use
of the Assets as provided herein, and will do, execute,
acknowledge and deliver, or will cause to be done, executed,
acknowledged and delivered, all such further acts,
deeds, assignments, conveyances, transfers, powers of
attorney or assurances as may be reasonably required in
order fully to assume such liabilities and obligations.
3.4 RIGHTS OF WAY, EASEMENTS, LICENSES, LEASES,
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PERMITS, AND FRANCHISES.
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Seller's obligations under this Section 3.4 are subject
to the limitations set forth in Sections 14 and 15.6.
Except as set forth in Schedule 3.4, without limiting
any of the other Assets to be transferred hereunder,
Seller, in consideration of payment of the Purchase
Price and without further consideration, will obtain
for and deliver to the Buyer all Seller's rights
under the easements, rights of way, permits, leases,
licenses, and franchises (collectively, the "Rights
of Way") reasonably necessary to the operation of the
Assets as of the Closing Date. Seller warrants that
the Rights of Way are owned by Seller free and clear
of any monetary liens or encumbrances or other title
exceptions which would interfere with the operations
of the Assets by Buyer. Seller, upon the request of
Buyer and without further consideration, will take
any and all steps necessary to obtain for and deliver
to Buyer the Rights of Way conveyed, or substitutes
therefor reasonably adequate and acceptable to Buyer,
all at Seller's expense. If any claim is made
challenging Buyer's entitlement to any Rights of Way
materially necessary to the conduct of business of
the Assets, Seller shall at its expense, immediately
make available an alternative Right of Way reasonably
adequate and acceptable to Buyer and relocate any Assets
to the new Rights of Way. If Seller is unwilling or
unable to provide an adequate and alternative Right of
Way within 90 days of written request from Buyer, Buyer
may take any and all steps necessary to acquire
an adequate and appropriate alternative Right of Way
or to secure the transferred Right of Way and relocate
Assets to the new Rights of Way and Seller shall pay
or reimburse Buyer for all costs thereof, including
any costs incurred in condemnation or any other
litigation, including reasonable attorneys fees and
costs, immediately upon demand from the Buyer. If
such amounts are not paid or reimbursed to Buyer
within 60 days of the demand, the unpaid amounts will
bear interest at the rate of seven percent (7%) per
annum until paid. Seller shall be responsible for
its obligations under this Section, and Buyer may offset
any amounts due under this Section against any amounts
payable to Seller for any reason or may xxx
to collect the same.
3.5 REAL PROPERTY, CONVEYANCE. Seller will procure,
_________________________
at its cost, within sixty (60) days prior to Closing, an
owner's policy of title insurance in the amount of
$5,000,000. Seller will deliver said policy within fifteen
(15) days after the Closing Date. The title insurance shall
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
6 - ASSET PURCHASE AGREEMENT
insure against loss or damage arising out of those items
covered by a standard owner's policy as to the real
property set forth on Schedule 1.2, which policy shall
contain no non-standard reservations, exceptions or
conditions.
4. CLOSING.
_______
4.1 CLOSING DATE AND TIME. The Closing of the
_____________________
transaction provided for herein (the "Closing"), shall take
place at 10:00 a.m. Fairbanks, Alaska time on the date 15
business days following the date on which the last of the
conditions contained in Sections 10 and 11 hereof has been
satisfied or waived, other than such conditions that by
their terms are to be satisfied on the Closing Date, at the
offices of the Seller, Office of the Mayor, City Hall,
Fairbanks, Alaska, or at such other date, time and place as
the Parties hereto may mutually agree, but in no event later
than 30 days following the date on which the last of the
conditions contained in Sections 10 and 11 hereof has been
satisfied or waived, other than such conditions that by
their terms are to be satisfied on the Closing Date. At the
Closing, the Buyer and the Seller shall deliver, or cause to
be delivered, to the other Party, such certificates,
receipts or other documents or instruments, in
addition to those specifically provided for herein,
as may reasonably be requested by such other Party.
The date on which the Closing occurs is referred to
herein as the "Closing Date."
4.2 SELLER'S OBLIGATIONS AT CLOSING. At the
_______________________________
Closing, Seller shall deliver the following documents
duly executed and acknowledged as appropriate: (a) Bills
of Sale, General Warranty Deeds, Assignments and other
good and sufficient instruments of transfer to transfer
the Assets; (b) Seller's Closing Certificate; (c) all
documents required as conditions to Closing set forth
in Section 11.
4.3 BUYER'S OBLIGATIONS AT CLOSING. At the
______________________________
Closing, Buyer shall deliver to Seller the following
items and documents duly executed and acknowledged as
appropriate: (a) the Purchase Price; (b) Buyer's
Closing Certificate; (c) all documents required as
conditions to Closing set forth in Section 10;
(d) all instruments of assignment and assumption.
5. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The
____________________________________________
Seller hereby represents and warrants to the Buyer as follows:
5.1 STANDING AND POWER. The Seller has full power and
__________________
authority to own the Assets and is authorized to conduct and
operate the Assets and business related to the Assets.
5.2 AUTHORITY.
_________
(a) The Seller is not a Party to any agreement,
arrangement or commitment which would render the Seller unable
to comply with its obligations hereunder.
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
7 - ASSET PURCHASE AGREEMENT
(b) Except for the approval of the sale of the
Assets by the voters of the Seller, the execution and
delivery of this Agreement and the consummation of the
transactions contemplated have been duly authorized by all
requisite action on the part of the Seller. This Agreement
constitutes the legal, valid and binding obligations of the
Seller, enforceable in accordance with its terms. Except as
disclosed in Schedule 5.2(b) hereto, neither the execution
nor the delivery of this Agreement, nor the consummation
of the transaction contemplated, nor the compliance with
or fulfillment of their terms and provisions, will (i)
conflict with or result in a breach or violation of any of
the terms, conditions or provisions of the Fairbanks
Municipal Code or other governance documents of the Seller,
or (ii) result in a material breach or default under any
provision of any agreement, indenture, mortgage, lien, lease
or other instrument or restriction of any kind to which the
Seller is a Party or by which the Seller or any of the Assets
is otherwise bound or affected, or (iii) violate any order,
writ, injunction, decree, statute, rule or
regulation applicable to the Seller or any of the Assets,
which conflict, breach, default or violation, in any such
case, would have a material adverse effect on the Assets or
the condition (financial or other), business or operations of
Seller, in each case taken as a whole, or on the
consummation of the transactions contemplated hereby,
or would result in any material liability of the Buyer, and
which will not be cured, waived or terminated prior to
the Closing Date.
(c) Except as set forth in Schedule 5.2(c) no
consent, approval or authorization of, or filing or
registration with, any governmental or regulatory authority
is required to be obtained by the Seller in connection
with the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby.
5.3 FINANCIAL INFORMATION. Attached hereto as
_____________________
Schedule 5.3 are complete and correct copies of the 1995
Financial Statements of FMUS as of 12/31/95 and the
related statements of revenues and expenses, changes in
fund equity, cash flows, balance sheet and accompanying
notes to the financial statements for the twelve-month
period then ended. The 1995 Financial Statements have
been prepared in accordance with generally accepted
accounting principles ("GAAP") applied on a consistent
basis throughout the periods specified therein and
fairly present the financial condition and changes in
financial position of FMUS as of the dates specified
therein and the results of its operations for the periods
specified therein.
5.4 ABSENCE OF CERTAIN CHANGES OR EVENTS.
____________________________________
Except as otherwise set forth in Schedule 5.4 hereto
or expressly consented to in writing by the Buyer
pursuant to this Agreement or otherwise, since 12/31/95:
(a) The Assets have not sustained any damage,
destruction or loss, whether by reason of fire, explosion,
earthquake, casualty, requisition or taking of property by
any government or agency thereof, windstorm, embargo, riot,
strike, act of God or public enemy, flood, accident,
revocation of license or right to do business, total or
partial termination, suspension, default or modification of
any contract, governmental restriction or regulation or
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
8 - ASSET PURCHASE AGREEMENT
other calamity or other similar event adversely affecting
the Assets or the condition (financial or other), business
or operations of the Assets.
(b) There have been no changes in the Assets or the
condition (financial or other), business, operations,
obligations or liabilities (fixed or contingent) of the
Assets or any losses of personnel key to the business or
operations of the Assets that, in the aggregate, have had
or may be reasonably expected to have (whether prior to or
after the Closing Date), a material adverse effect on the
Assets or the condition (financial or other), business or
operations of Seller.
(c) Seller has not incurred in respect of the Assets
additional debt for borrowed money (including, without limitation,
obligations under leases for real or personal property whether
or not required to be capitalized under GAAP), nor incurred or
increased in respect of the Assets any obligation or liability
(fixed, contingent or other, including, without limitation,
liabilities as a guarantor or otherwise with respect to
obligations of others), nor has the Seller forgiven or released
in respect of the Assets any debt or claim, given any waiver of
any right of value or voluntarily suffered any extraordinary loss.
(d) Seller has not made in respect of the Assets any
payment to discharge or satisfy any material lien or
encumbrance or paid any material obligation or liability (fixed or
contingent) other than (i) current liabilities (including the
current portion of any long-term liabilities) included in the
Financial Statements; and (ii) current liabilities incurred or
maturing since the date of the Financial Statements in the
ordinary course of business.
(e) Seller has not declared or made any cash interfund
transfer, equity distribution or other transfer or distribution
of cash or property from FMUS to the Seller such that such cash
or property would no longer be considered part of the Assets,
except for a payment in lieu of taxes for the 12-month period
ending 12/31/96 which amount shall not exceed $3,577,000.
(f) Seller has not mortgaged, pledged, otherwise
encumbered or subjected to lien any of the Assets nor committed
itself to do any of the foregoing.
(g) Seller has not, except in the ordinary course
of business in each case for fair consideration, disposed of,
or agreed to dispose of, any of the Assets nor leased or
licensed to others, or agreed so to lease or license, any of
the Assets.
(h) Seller has not entered into any transaction
or contract, or an amendment thereto, in respect of the
Assets or made any commitment to do the same, except (i)
in the ordinary course of business and not requiring the
payment in any case of an amount in excess of $25,000 in
any one year or an amount in excess of $50,000 over the
life of the transaction or contract, or (ii) with respect
to any Excluded Assets.
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
9 - ASSET PURCHASE AGREEMENT
(i) Seller has not made any material increases
in the compensation of the Employees other than as may
be required pursuant to Seller's current collective
bargaining agreements related to the Assets or materially
changed any personnel policies or employee benefits
applicable to such Employees, other than in the ordinary
course of business and consistent with past practices, or
increased the number of Employees beyond that number as set
forth in Schedule 1.8.
(j) Seller has not changed any of the accounting
methods, policies or practices of Seller other than after so
notifying the Buyer of the change.
(k) Seller has not acquired any additional
Assets which would be material to the condition (financial
or other), business or operations of Seller, in each case
taken as a whole, except for Assets acquired in the
ordinary course of business and consistent with
past practices.
(l) Seller has not agreed or committed to do
any of the foregoing.
5.5 TITLE TO PROPERTIES, ABSENCE OF LIENS AND
_________________________________________
ENCUMBRANCES.
____________
Except as set forth in Section 3.4 and in Schedule 5.5
hereto, the Seller has, and shall transfer and convey to
the Buyer, good, valid and marketable title, subject to
the encumbrances permitted by this Agreement, to the
Assets, in each case free and clear of all liens, charges,
security interests and other encumbrances of any nature
whatsoever. Except as set forth in Section 3.4 and in
Schedule 5.5 hereto, all leaseholds, leasehold interests,
contract rights, licenses, permits and other intangible
Assets are owned directly by the Seller and are (and when
transferred and conveyed to the Buyer will be) valid,
subsisting and in full force and effect in accordance with
their terms. The leases of real property and all
amendments thereto described in Schedule 5.5 hereto
constitute the entire agreements between the Parties
thereto, and said leases have not been further
amended or modified.
5.6 LIST OF PROPERTIES, CONTRACTS AND OTHER DATA.
____________________________________________
Schedule 5.6 hereto contains a list setting forth with
respect to the Seller, as of 12/31/95, the following:
(a) All land and improvements thereon owned by
the Seller which are included in the Assets;
(b) All leases of real or personal property to
which the Seller is a Party, either as lessee or lessor,
which are included in the Assets; provided, however, that
Schedule 5.6, hereto does not list any lease of personal
property under which the total remaining lease payments
are less than $25,000;
(c) (i) All patents, trademarks, trade names,
copyrights and servicemarks, and all registrations therefor
unexpired as of 12/31/95, all applications pending therefor
on said date and all other proprietary rights included in
the Assets, and (ii) all licenses granted by or to the
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
10 - ASSET PURCHASE AGREEMENT
Seller and all other agreements to which the Seller is a
Party which relate, in whole or in part, to any items of
the categories mentioned in (c)(i) above or to other
proprietary rights included in the Assets;
(d) All contracts, understandings and commitments
(including, without limitation, mortgages, indentures, loan
agreements, employment agreements, collective bargaining
agreements and other employment, related contracts and
agreements) to which the Seller is a Party relating to the
Assets, or to which the Seller or any of the Assets are
subject and which are not specifically referred to in (b)
or (c) above; provided, however that Schedule 5.6
hereto does not list any contracts, understandings or
commitments under purchase orders with customers, sales
contracts, supply contracts with suppliers and other such
commitments incurred in the ordinary course of business
and consistent with past practices, other than any such
contract, understanding or commitment which (i) is a
contract or group of related contracts under which the
total remaining payments exceed $25,000 in aggregate
amount, (ii) is a sales contract of an open-ended or
blanket nature, or (iii) cannot be performed in the normal
course within 180 days after the Closing Date or canceled
within such period by the Seller, or its assignee, without
breach, penalty or liability;
(e) All approvals, authorizations, consents,
licenses, permits, franchises, orders and other
registrations of any federal, state or local court or
other governmental department, commission, board,
bureau, agency or instrumentality, held by the Seller
and required to permit the Seller to conduct the Assets
as presently conducted; and
(f) Except as disclosed in Schedule 5.6 hereto,
there has been no claim that any lease, license, patent or
other proprietary right, agreement or contract referred to
in such Schedule 5.6, or any lease, license, patent or
other proprietary right, agreement or contract coming into
existence after 12/31/95 which, if in existence on 12/31/95,
would have been required to be disclosed on such Schedule
5.6, is not valid and enforceable in accordance with its
terms for the periods stated therein, or that there is
under any such lease, license, patent or other
proprietary right, agreement or contract any existing
default or event of default or event which with notice
or lapse of time or both would constitute such a default
or event of default, and there is no such existing default,
event of default or event on the part of the Seller, or,
to the knowledge of the Seller, any other person.
5.7 LITIGATION. Except as listed and described
__________
in Schedule 5.7 hereto, there are no actions, suits,
proceedings, claims, investigations or examinations
pending or threatened which arise from the use of the
Assets or the conduct of the business of the Assets,
including without limitation actions, suits, proceedings,
claims, investigations or examinations pertaining to
employment matters or labor agreements, or which question
the validity or seek to prevent the consummation of
this Agreement or the transactions contemplated hereby,
whether at law or in equity, before or by any federal,
state or local court or other governmental department,
commission, board, bureau, agency or instrumentality,
which, individually or in the aggregate,
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
11 - ASSET PURCHASE AGREEMENT
if adversely determined, would result in any
material adverse effect on the condition (financial or
other), business or operations of Seller, or would
prevent the consummation of this Agreement or the
transactions contemplated hereby. Pursuant to the terms
hereof, Buyer will not assume any litigation.
5.8 GOVERNMENT APPROVALS. Except as set forth in
____________________
Schedule 5.8 hereto, the Seller has all approvals,
authorizations, consents, licenses, permits, franchises,
orders and other registrations of any federal, state
or local court or other governmental department
commission, board, bureau, agency or instrumentality,
required to permit the Seller to conduct the Assets as
presently conducted, except where the failure to have
such approvals, authorizations, consents, licenses,
permits, franchises, orders and other registrations,
individually or in the aggregate, does not have
material adverse effect on the Assets or the condition
(financial or other), business or operations of Seller.
5.9 INSURANCE. Schedule 5.9 hereto contains a list
_________
of all policies and binders of insurance and self-insurance
arrangements covering any of the Assets and Liabilities.
No policy listed has been canceled and each policy listed
will continue in effect until the Closing Date. On the
Closing Date, each such policy listed will be canceled as
to FMUS and the Seller will notify the insurance carriers
issuing such policies of the cancellations. The Seller
agrees to retain all liabilities and obligations to the
extent they are covered under all policies and binders of
insurance and/or self insurance set forth in Schedule 5.9
which are incurred prior to the Closing Date, including
but not limited to those claims or losses incurred prior
to the Closing Date but not reported until after the
Closing Date.
5.10 CONDITION OF THE ASSETS. Except as set forth
_______________________
in Schedule 5.10 hereto, all necessary Assets, and all
personal and real property, fixtures and equipment
leased under leases included in the Assets, are (a) in
good operating-condition or otherwise suitable for their
intended purpose, and (b) adequate for the use of the
Assets as currently being used.
5.11 ACCOUNTS RECEIVABLE. The accounts receivable
___________________
related to the Assets shown on the 1995 Financial
Statements arose from bona fide transactions in the
ordinary course of business and consistent with past
practices. The values at which accounts receivable
are carried on the 1995 Financial Statements reflect
the accounts receivable valuation policy of the Seller,
which is consistent with past practices and in
accordance with GAAP applied on a consistent basis.
5.12 NO DEFAULTS. Except as set forth on Schedule
___________
5.12, hereto, the Seller is not in violation of or in default
with respect to any contract, agreement, lease, mortgage or
other instrument, or any covenant or restriction affecting
any of the real property included in the Assets, or any
order, write or decree of any federal, state or local
court or other governmental department, commission, board,
bureau, agency or instrumentality, which violation or
default would have a material adverse effect on the
financial condition of the Assets, or on the ability
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
12 - ASSET PURCHASE AGREEMENT
of the Seller to perform its obligations hereunder, and
there has not occurred any event which, with notice or
lapse of time or both, would constitute such a
violation or default.
5.13 COMPLIANCE WITH APPLICABLE LAW. Except as set
______________________________
forth on Schedule 5.13 hereto, the conduct of the Assets
and the operation and maintenance of the real property
included in the Assets does not violate or infringe upon
any, and is in compliance with all, federal, state or
local statutes, laws, regulations, rules or ordinances.
5.14 ABSENCE OF UNDISCLOSED LIABILITIES. Except to
__________________________________
the extent disclosed, reflected or reserved against in
the 1995 Financial Statements or on Schedule 5.14 hereof,
Seller had as of 12/31/95 no liabilities or obligations
of any nature related to the Assets, whether accrued,
absolute, contingent or other (including, without
limitation, liabilities as guarantor or otherwise with
respect to obligations of others) and whether due or to
become due, including, without limitation, any
liabilities for Taxes (as defined in Section 5.15 hereof),
for any period prior to such date or arising out of any
transaction entered into or any set of facts existing
prior to such date, other than those liabilities or
obligations that either individually or in the aggregate
would not reasonably be expected to have a material
adverse effect on the Assets or the condition (financial
or other), business or operations of Seller, in each case
taken as a whole. Except for those liabilities or
obligations that are fully disclosed, reflected or
reserved against in the 1995 Financial Statements or on
Schedule 5.14 hereto, to the knowledge of the Seller,
there is no reasonable basis for a determination by any
court, agency, authority, arbitration panel or other
tribunal that the Seller is liable with respect to any
liabilities or obligations that would reasonably be
expected to be adverse to the Assets or the condition
(financial or other), business or operations of the Assets.
5.15 TAXES. All taxes, assessments, fees, imposts,
_____
levies and other charges, including, without limitation,
interest and penalties, upon the Seller in respect of
the Assets, whether on property, payroll, sales, assets,
revenues, income, net income, net worth, accumulated
earnings, items of tax preference or any other base,
imposed by any taxing authority, federal, state, local
or foreign ("Taxes"), that have become due and payable
have been paid, other than those not yet delinquent. The
Seller has duly filed with the appropriate government
agencies all returns and reports with respect to Taxes
required to be filed by them. No waiver of any statute
of limitations relating to Taxes has been executed or
given by the Seller. The charges, accruals and reserves
shown in the 1995 Financial Statements are adequate to
cover all liabilities for Taxes as of 12/31/95, except
to the extent disclosed in notes to such financial
statements. The Seller has made available to the Buyer
correct and complete copies of all documents and materials
relating to any pending federal, state or local tax
dispute concerning the Assets or in any way
affecting the Assets.
5.16 BROKERS. Neither the Seller nor any officer,
_______
official (elected or appointed), director or employee of
either, has employed any finder, broker, investment banker
or similar agent or other intermediary on behalf of the
Seller or the Buyer, or incurred on behalf of the
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
13 - ASSET PURCHASE AGREEMENT
Seller or the Buyer any liability for any brokerage,
finders' or investment banking fees or commissions in
connection with the negotiation or consummation of the
transactions contemplated hereby which would result in
a payment obligation by the Buyer or which would be
paid directly or indirectly by FMUS.
5.17 HAZARDOUS SUBSTANCES. Except as set forth on
____________________
Schedule 5.17 hereto, the Seller has complied with
respect to the Assets in all respects with all
Environmental Laws (as hereinafter defined) in connection
with the generation, handling, manufacturing, processing,
treatment, storage, use, transfer, release or disposal of
hazardous substances, hazardous wastes, hazardous waste
constituents and reaction byproducts, hazardous materials,
pesticides, oil and other petroleum products, and toxic
substances, including asbestos and PCB, as those terms
are defined pursuant to Environmental Laws (collectively
"Hazardous Substances"). Except as set forth in
Schedule 5.17, the Assets do not contain any Hazardous
Substances the presence of which could have a material
adverse effect on the condition (financial or other),
business or operations of Buyer. For purposes of this
Section 5.17, "Environmental Laws" shall be all federal,
state and local laws, rules, regulations, ordinances,
programs, permits, guidance, orders and consent decrees
relating to environmental matters, including without
limitation the Resource Conservation and Recovery Act,
the Comprehensive Environmental Response, Compensation
and Liability Act, the Toxic Substance Act, the Clean
Water Act, the Clean Air Act and state and federal
environmental cleanup programs.
5.18 STORAGE TANKS. Except as set forth on
_____________
Schedule 5.18 hereto, the Assets do not contain any
storage or treatment tanks, active or abandoned water,
gas or oil xxxxx, or any abandoned above ground or
underground improvements or structures included in
the Assets.
5.19 ACCESS LINES AND CUSTOMERS. Seller represents
__________________________
and warrants that all customers are billed in amounts in
accordance with applicable tariffs, ordinances or based
upon the terms of any service contract.
5.20 EMPLOYEE BENEFIT PLANS.
______________________
(a) A list of all FMUS Employee Benefit
Plans (as hereinafter defined in Section 5.20(c) hereof)
is set forth on Schedule 5.20 hereto.
(b) The FMUS Employee Benefit Plans other
than any plans maintained pursuant to a collective
bargaining agreement and any trust agreements, group
annuity contracts, insurance policies or other agreements
related to such FMUS Employee Benefit Plans are in
substantial compliance with the applicable provisions,
if any, of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), the Internal Revenue
Code of 1986, as amended (the "Code"), and other applicable
laws. All contributions due and payable on or before the
Closing Date in respect of the FMUS Employee Benefit Plans
have been made or will be made before the Closing Date.
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
14 - ASSET PURCHASE AGREEMENT
(c) For the purposes hereof, the term "FMUS
Employee Benefit Plan" means any "employee benefit plan"
(as that term is defined in Section 3(3) of ERISA), as
well as any other written or formal plan or contract
involving direct or indirect compensation, under which
FMUS has any present or future obligations or liability
on behalf of its employees or former employees or their
dependents or beneficiaries.
6. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer
___________________________________________
hereby represents and warrants to the Seller with respect
to the purchase of the Assets as follows:
6.1 ORGANIZATION AND STANDING. The Buyer is a
_________________________
corporation duly organized and validly existing under the
laws of its state of incorporation. The Buyer has
full corporate power and corporate authority to acquire,
own, lease and operate the respective portion of the
Assets to be conveyed to it, to enter into this Agreement
and to perform all of its obligations hereunder.
6.2 AUTHORITY.
_________
(a) Except for the approval of the purchase of
the Assets by the voters of Seller, the Buyer is not
a Party to any agreement, arrangement or commitment which
would render the Buyer unable to comply with its
obligations hereunder.
(b) The execution and delivery by the Buyer of
this Agreement and the consummation of the transactions
contemplated hereby and thereby have been duly authorized
by all requisite action on the part of the Buyer. This
Agreement constitutes the legal, valid and binding
obligation of the Buyer, enforceable in accordance with
its terms. Neither the execution nor the delivery of
this Agreement, nor the consummation of the transactions
contemplated hereby and thereby, nor the compliance with or
fulfillment of the terms and provisions hereof or thereof,
will (i) conflict with or result in a breach or violation
of any of the terms, conditions or provisions of the
Articles of Incorporation or By-Laws of the Buyer, or
(ii) result in a material breach or default under any
provision of any agreement, indenture, mortgage, lien,
lease or other instrument or restriction of any kind to
which the Buyer is a Party or by which the Buyer or any
of its assets or properties are otherwise bound or
affected, or (iii) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to the
Buyer or any of its assets or properties, which
conflict, breach, default or violation, in any such
case, would have a material adverse effect on the
condition (financial or other) of the Buyer or the
consummation of the transactions contemplated hereby,
or would result in any material liability of the
Seller, and which will not be cured, waived or terminated
prior to the Closing Date.
(c) Except as set forth in Schedule 6.2(c)
hereto, no consent, approval or authorization of, or
filing or registration with, any governmental or
regulatory authority is required to be obtained by the
Buyer in connection with the execution and delivery
of this Agreement or the consummation of the transactions
contemplated hereby or thereby.
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
15 - ASSET PURCHASE AGREEMENT
7. COVENANTS OF THE SELLER.
_______________________
7.1 ACCESS TO PROPERTIES, BOOKS AND RECORDS. Prior
_______________________________________
to the Closing Date and subject to appropriate
confidentiality arrangements, the Seller shall, at
Buyer's request, afford or cause to be afforded
to the agents, attorneys, accountants and other authorized
representatives of the Buyer, reasonable access, after
prior telephonic notice to Seller, during normal business
hours to all employees, properties, books and records
relating to Seller, and shall permit such persons, at the
Buyer's expense and risk, to make copies of such books and
records. In particular, the Seller shall afford the Buyer
and its authorized representatives reasonable access to
the real and personal property included in the Assets for
the purpose of conducting investigations and examinations
thereof, except where contrary to law or contract, and for
preparation of surveys, making appraisals and ascertaining
the condition thereof and shall deliver to the Buyer monthly
financial statements of Seller, promptly after they become
available. The Seller shall cooperate with the Buyer and
issue any consents and authorizations reasonably
requested by the Buyer in connection with the Buyer's
examination of governmental records pertaining to the
real and personal property included in the Assets. No
investigation by the Buyer or any of its representatives
pursuant to this Section 7.1 shall affect any representation,
warranty or Closing condition of any Party hereto.
7.2 CONDUCT OF BUSINESS.
___________________
(a) Except as otherwise permitted by this
Agreement or with the prior written consent of the
Buyer, prior to the Closing Date, the Seller shall
not: (i) incur in respect of the Assets additional
debt for borrowed money (including, without
limitation, obligations under leases for real or
personal property whether or not required to be
capitalized under Generally Accepted Accounting
Principles), nor incur or increase in respect of
the Assets any obligation or liability (fixed,
contingent or other, including, without limitation,
liabilities as a guarantor or otherwise with respect
to obligations of others), nor forgive or release in
respect of the Assets any debt or claim, give any
waiver of any right of value or voluntarily suffer any
extraordinary loss; (ii) make in respect of the Assets
any payment to discharge or satisfy any lien or
encumbrance or pay any material obligation or
liability (fixed or contingent); (iii) declare or
make any interfund transfer, equity distribution or
other transfer or distribution, directly or
indirectly, of cash or property to the Seller such
that such cash or property would no longer be
considered part of the Assets, except for (y)
a 1996 PILOT payment in an amount no greater than
$3,577,000 million or a 1997 pilot payment of
$3,577,000 multiplied by a fraction equal to
number of days from January 1, 1997 to the
date of Closing, divided by 365; or (z) any
intra governmental charges incurred in the ordinary
course of business and consistent with past practices
and as set forth in the Council approved 1996 FMUS
Operating and Expense Budget (Budget); (iv)
mortgage, pledge, otherwise encumber or subject to
lien any of the Assets or commit to do any of the
foregoing; (v) dispose of, or agree to dispose of,
any of the Assets or lease or license to others,
or agree so to lease or license, any of the Assets
or make any commitment to do the same; (vi) make any
increases in the compensation of the Employees, hire
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
16 - ASSET PURCHASE AGREEMENT
any regular full-time Employees or change any
personnel policies or employee benefits applicable to
such employees, or enter into any agreement to modify
a collective bargaining agreement; (vii) use any
accounting methods, policies or practices not in
conformity with GAAP; (viii) acquire any additional
Assets which would be material to the condition
(financial or other), business or operations of Seller,
in each case taken as a whole, except for Assets acquired
in the ordinary course of business and consistent with
past practices or as set forth in the Budget; (ix)
delay payment of any Accounts Payable; (x) physically
relocate or remove any functions, Assets or Employees to
any other location, except for the relocation of the
MIS department from the Globe Administrative Building;
(xi) materially change any rates or pricing for any
service related to the Assets; or (xii) agree or commit
to do any of the foregoing.
(b) Except as otherwise permitted by this
Agreement or with the prior written consent of the Buyer,
prior to the Closing Date, the Seller shall: (i) operate
the Assets as presently operated and only in the ordinary
course of business and consistent with past practices:
(ii) not cancel or change any existing policy of insurance
(including self-insurance) or fidelity bond relating to
the Assets, or any policy or bond providing substantially
the same coverage, unless replaced by a policy or bond
providing substantially the same coverage or such
cancellation or change is effective only on the Closing
Date, and not change in any respect the Seller's and
Seller's currently existing policies and practices with
respect to the maintenance of self-insurance reserves
allocable to Seller; (iii) advise the Buyer in writing
of any adverse change or any event, occurrence or
circumstance which are likely to cause an adverse
change in the Assets or the condition (financial
or other), business or operations of Seller; (iv)
use all commercially reasonable best efforts to
maintain all of the Assets in good operating
condition, reasonable wear and tear excepted,
consistent with past practices, and take all
commercially reasonable steps necessary to
maintain the Assets; (v) maintain all inventories,
spare parts, office supplies and other expendable
items included in the Assets and (vi) perform the
actions specified in the Budget; and (vii) preserve
all records related to the Assets and customers
associated with said Assets.
7.3 DEFEASANCE. On the Closing Date, the
__________
Seller shall take all actions necessary to retire or
defease duly and validly, all revenue bonds of the
Seller outstanding as of the Closing Date and
relating to the Assets, including without limitation
the revenue bonds listed on Schedule 7.3 hereto, using
for such purpose the proceeds of the Purchase Price
received from the Buyer pursuant to this Agreement.
7.4 TRANSFER FEES. Except for payment of the
_____________
Purchase Price, and as specifically set forth in
Schedule 7.4 hereto, the Seller shall not charge the
Buyer for the transfer, assumption or use by the Buyer
of any Seller Assets or Seller permits, leases,
rights-of-way, licenses, franchises or other such
authorizations. Buyer will pay for the transfer
assumption or use fees associated with all third-party
permits, leases, rights-of-way, licenses, franchises or
other such authorizations.
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
17 - ASSET PURCHASE AGREEMENT
7.5 SCHEDULE ELECTION. The Seller shall
_________________
schedule the election for the necessary voter approval
required in sections 10.5 and 11.5 no later than 10/31/96.
7.6 LAND FOR DIVISION HEADQUARTERS. On or before
______________________________
December 31, 1996 Seller shall assist Buyer to locate
mutually satisfactory real property in downtown Fairbanks,
owned by Seller, for the purpose of establishing a
Buyer's Alaska Division Headquarters. Seller and Buyer
agree that either Block 13 or Block 66 is mutually
satisfactory if Seller is able to transfer and convey
to Buyer good, valid and marketable title to said
property free and clear of all liens, charges, security
interests, and other encumbrances of any nature whatsoever
and if said property is not in violation of Environmental
Laws. Seller recognizes that consideration for said real
property is included in the Purchase Price. In the
event that said property is located and mutually agreed
to, Seller shall sell, transfer and convey to Buyer with
the delivery of a General Warranty Deed at Closing the
above referenced property. In the event that said
property is not mutually agreed to, the Purchase Price
shall be adjusted as provided in Section 1.3.
7.7 SELLER FEES. The Seller may never charge Buyer
___________
a franchise, user or other equivalent fee. The Seller shall
not for a period of five (5) years charge or require Buyer to
pay a construction or relocation fee for the Assets. After
five (5) years, Seller shall only charge, if at all, Buyer a
reasonable permit fee for construction or relocation based on
Seller's direct costs.
8. COVENANTS OF THE BUYER. Buyer covenants as follows:
______________________
(a) for a period of at least three (3) years
after the Closing Date, it shall not seek from the Alaska
Public Utilities Commission to earn a return for rate
making purposes with respect to the portion of the
aggregated purchase price paid hereunder which exceeds
the net book value of the Assets in the hands of the
Seller immediately prior to the Closing Date.
(b) it will not increase the local service
telephone rates in effect at the time of the Closing for
a period of three (3) years after the Closing Date, except
as may be required to reflect changes in regulation,
legislation, or judicial order.
(c) it has entered into, or will prior to
the Closing Date, bargain in good faith to enter into a
collective bargaining agreement covering the Employees
with each current certified bargaining agent for and
representative of Seller's employees which shall represent
the Employees after the Closing Date.
(d) it shall provide telephone service no
less than that required by the Alaska Administrative
Code, as the same exists or may after the date hereof
be amended and as required by the Federal Communications
Commission ("FCC"). No later than eighteen (18) months
following the Closing, Buyer will deploy integrated
digital services network (ISDN) or its equivalent to
the City of Fairbanks.
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
18 - ASSET PURCHASE AGREEMENT
(e) it shall establish a statewide
telecommunications Advisory Board for the purpose of
assisting in the development of new technologies and
recommending ways to improve service.
9. COVENANTS OF THE BUYER AND SELLER.
_________________________________
9.1 REGULATORY APPROVALS. The Seller and
____________________
the Buyer, and their respective Representatives (as
hereinafter defined), shall cooperate and use all
reasonable best efforts, in good faith, to make all
registrations, filings and applications and to give
all notices and obtain all governmental and regulatory
consents, approvals, orders, qualifications and waivers
necessary or desirable for the consummation of the
transactions contemplated hereby including, without
limitation, those consents, approvals, orders,
qualifications and waivers set forth in Schedule 9.1
hereto as soon as practicable following execution of
this Agreement. Buyer and Seller agree to each use
diligent efforts to consummate the transactions
contemplated hereby within ninety days (or as soon
thereafter as possible) after receipt of the voter
approval has been obtained. For purposes of this
Section 9.1, with respect to the Seller, the term
"Representatives" means the City Attorney of the
Seller, the Seller's special counsel, and such other
counsel as shall be appointed by the Seller, which
shall represent the Seller in obtaining all approvals
required by this Section 9.1. For purposes of this
Section 9.1, with respect to the Buyer, the term
"Representatives" means the attorneys of the Buyer,
and such other counsel as shall be appointed by the
Buyer, which shall represent the Buyer in obtaining
all approvals required by this Section 9.1. The
Seller and the Buyer, and their respective
Representatives, each shall use its reasonable
efforts in good faith to obtain such consents, approvals,
orders, qualifications and waivers (including
reaching separate agreements or entering stipulations
with intervenors or agency staffs) as may be necessary
or desirable to permit the Closing and the
consummation of the transactions contemplated hereunder
or as may be required by the public utility or
other laws or regulations of the United States of
America, the State of Alaska, the APUC or others,
in each case to the extent applicable; provided,
however, that if any such governmental or regulatory
consent, approval, order, qualification or waiver
be denied or be granted, contingent on modification
of any material provision of this Agreement, then
either Party may terminate this Agreement after
completion of any mutually agreed upon appeals
concerning any such consents, approvals, orders,
qualifications or waivers pursuant to this
Agreement. If any provision of this Agreement
which is a material impact upon a Party is
declared invalid by a court or agency, either
Party may terminate the affected Agreement by
giving notice to the other Party within thirty
(30) days of such declaration. The Buyer and
its Representatives need only participate in
seeking to obtain approvals which relate
directly to the Assets the Buyer is acquiring and
shall do nothing to interfere with or adverse to
the approval of GVEA and FWS's obtaining of said
approvals.
9.2 INSPECTION AND PRESERVATION OF RECORDS:
_______________________________________
FURTHER ASSISTANCE.
__________________
On and after the Closing Date, the Buyer will permit
the Seller and its agents, attorneys, accountants and
other representatives, at all reasonable times during
regular business hours, to inspect and copy, at the
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
19 - ASSET PURCHASE AGREEMENT
Seller's expense, the books, files, records and
accounts of Seller held by Buyer, if any, relating
to periods prior to the Closing Date, for any
reasonable purpose or purposes including, without
limitation, the preparation, review or audit of any
financial statements or tax returns, providing
appropriate verification of documents, or preparing
for, conducting or defending any legal proceeding
against any Party other than the Buyer or any of
its affiliates. The Buyer shall maintain and
preserve all of such books, files, records and
accounts of Seller held by Buyer, if any;
provided, however, that the Buyer may dispose of
any such books, files, records and accounts at
any time and from time to time if it first
shall have afforded the Seller the opportunity,
upon thirty (30) days' prior notice and at the
Seller's expense, to take possession thereof.
On and after the Closing Date, the Seller will
permit the Buyer and its agents, attorneys,
accountants and other representatives, at all
reasonable times during regular business hours,
to inspect and copy, at the Buyer's expense, the
books, files, records and accounts of the Seller
not included in the Assets insofar as they
relate to any of the Assets, for any reasonable
purpose or purposes including, without limitation,
the preparation, review or audit of any financial
statements or tax returns, providing appropriate
verification of documents, or preparing for,
conducting or defending any legal proceeding
against any Party other than the Seller. The
Seller shall maintain and preserve all such
books, files, records and accounts;
provided, however that the Seller may dispose
_________________
of any such books, files, records and accounts
at any time and from time to time if it first
shall have afforded the Buyer the opportunity,
upon thirty (30) days' prior notice and at the
Buyer's expense, to take possession thereof.
The Buyer and the Seller agree to render
such assistance to the Seller and the Buyer,
respectively, including permitting such other
Party to have access to its employees, as may
be reasonably requested in connection with
obtaining information for the purposes set forth
in the four preceding sentences. The Buyer
and the Seller will treat all information
obtained pursuant to this Section as confidential
except to the extent disclosure thereof is
necessary for attainment of the purpose or
purposes for which such information was
obtained or as required by law. In addition,
the Seller and the Buyer agrees to provide each
other with such further assistance and cooperation
as may be reasonably requested by the other Party
for any proper purpose, including, by way of
illustration. assisting such other Party in
preparing for, conducting or defending any
legal or regulatory proceeding against any Party
other than the Parties hereto and their affiliates
and in connection therewith providing such
documentary or physical evidence and expert or other
testimony as may be reasonably requested; provided,
however, that in each such case, the requesting
Party shall pay or reimburse the other Party
for, any out-of-pocket costs or expenses incurred by
such other Party in providing such assistance.
9.3 PUBLIC ANNOUNCEMENTS. The Seller and the
____________________
Buyer agree that they will provide each other with a
copy of each written public announcement or press
release (other than public advertisements) relating
to the execution of this Agreement or any
transactions contemplated hereby.
9.4 INTERVENTION IN COMMISSION HEARINGS.
___________________________________
The Buyer and the Seller agree that, notwithstanding
anything in this Agreement to the contrary,
no part of this Agreement (other
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
20 - ASSET PURCHASE AGREEMENT
than Section 9.1 hereof) shall be construed to
limit at any time before or after the Closing the
Seller's and the Buyer's rights to intervene in
any hearing, proceeding or docket before the
APUC or any other regulatory body.
9.5 TAXES. Subject to Section 1.3,
_____
the Buyer agrees and acknowledges that, following
the Closing, the Buyer shall be subject to real and
personal property tax assessments under state and
local tax laws with respect to the Assets on the same
basis as any other private enterprise.
9.6 ALLOCATION OF PURCHASE PRICE. The Seller
____________________________
and the Buyer shall cooperate and use all reasonable
efforts, in good faith, to reach agreement as
to the appropriate allocation of the aggregate
purchase price among the various Assets, to the
extent and in the manner required by law, and
shall report the transactions contemplated by
the Agreement to any relevant taxing authority in
conformity with such allocation.
9.7 UTILIDOR EASEMENT. The Seller and
_________________
Buyer shall negotiate in good faith to enter into a
non-exclusive easement for Buyer's use of
the Seller's utilidor ("Utilidor Easement").
The Utilidor Easement shall be for a period
of fifty (50) years (renewable for a second
50 year period). The Seller shall contract
with all holders of a utilidor easement to
provide that neither the Seller nor any other
utilidor easement holders may assign any
rights, obligations or commitments thereunder,
without the prior written consent of all
holders of a utilidor easement, which consent
shall not be unreasonably withheld. The
Buyer, as well as Fairbanks Sewer and
Water, Inc. and Golden Valley Electric
Association, shall pay to the Seller an amount
of Twenty Thousand Dollars ($20,000) per
year for their utilidor easement. The
Seller agrees that any other additional
holders of a utilidor easement, except
Usibelli, will be required to pay their
proportional share of the $60,000 annual
charge thereby reducing the Buyer's, Fairbanks
Sewer and Water, Inc. and Golden Valley Electric
Association's proportionately. The reduction
shall apply with respect to Xxxxx Cablevision upon
the earliest contractual date of termination, after
Closing, pursuant to the current agreement between
the Seller and Xxxxx Cablevision. During the term
of the Utilidor Easement, Seller shall own the
utilidor, unless transfer of such is approved by
all holders of utilidor easements. Buyer, together
with all other utilidor easement holders, at their
expense, shall provide routine maintenance of the
utilidor in accordance with the terms and
provisions of the Utilidor Easement. Seller
shall not be responsible for the heating of the
utilidor. The holders of utilidor easements are
not obligated to heat the utilidor. Seller shall
either repair, at Seller's cost, any catastrophic
damage, destruction or loss to the utilidor (but
not to the property of the holders of a utilidor
easement) due to causes set forth in Section 5.4
(a) hereof (except where such damages were caused
solely by a failure to heat the utilidor) or
provide alternative right of way, at no cost, to
the holders of a utilidor easement (except where
such damages were caused solely by a failure to
heat the utilidor), which shall be the holders'
of a utilidor easement sole remedy. If Seller
elects to make an alternative easement available
to Buyer, Seller shall not bear any cost of
relocation of Buyer's property from the utilidor
and shall bear no further liability. Seller may
acquire insurance against such losses, if
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
21 - ASSET PURCHASE AGREEMENT
available at a reasonable cost (not exceeding
$5,000 per year total cost, subject to inflation
pursuant to the Consumer Price Index from the
date of Closing) and all holders of a utilidor
easement shall reimburse Seller, said costs
to be split equally among them. Seller's
liability under this paragraph shall be
limited to the amount of any insurance recovery,
only if Seller obtains and maintains insurance
throughout term of the Utilidor Easement.
9.8 GLOBE ADMINISTRATIVE BUILDING LEASE.
___________________________________
The Seller and Buyer shall agree to a lease
arrangement with customary terms and conditions
whereby Seller would lease free of charge to
Buyer that portion of the Globe Administrative
Building located at 000 0xx Xxxxxx, Xxxxxxxxx,
XX which houses the main telephone switch,
associated equipment and entrance facilities.
Said lease will be for a period of twenty (20)
years from the Closing. Buyer will further lease
the remaining Globe Administrative Building space
for a period of thirty-six (36) months from
the Closing. During the term of said lease,
Buyer shall pay Seller for Buyer's proportional
amount of Seller's reasonable and customary (in
accordance with Seller's past practices) operation
and maintenance expenses for the Globe
Administrative Building.
9.9 TRANSFER OF FMUS MIS OPERATIONS.
_______________________________
Seller agrees that it shall completely transfer all
FMUS Management Information Systems ("MIS")
operations from the Globe Administrative Building
as soon as practicable, but in no event later
than 60 days after Closing, provided that said
MIS employees, after Closing, shall have access
and work within the Globe Administrative Building
Monday through Friday, 8:00 a.m. - 5:00 p.m.
excluding holidays. Furthermore, the Buyer shall
have no liability for damage to property or
personal injury arising out of or related to the
MIS employees' actions or ommissions ("MIS Claims")
and Seller shall indemnify, defend and hold
harmless Buyer, its parents, directors, officers,
employees and agents for and against any and all
claims, suits, damages, costs, fees and expenses
arising out of or related to said MIS Claims.
9.10 ALASKA DIVISION HEADQUARTERS. After
____________________________
Closing, Buyer agrees to establish its Alaska
Division Headquarters in downtown Fairbanks, Alaska.
9.11 COOPERATION. The Seller and Buyer shall
___________
use all reasonable best efforts, commencing upon the
execution and delivery of this Agreement, to take, or
cause to be taken in good faith, all actions, and to
do, or cause to be done, all things necessary, proper
or advisable to expeditiously and practicably to
consummate and make effective the transactions
contemplated by this Agreement.
10. CONDITIONS TO OBLIGATIONS OF THE SELLER. The
_______________________________________
obligations of the Seller to sell the Assets hereunder
are subject to the fulfillment or waiver by the Seller,
on or before the Closing Date, of each of the following
conditions:
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
22 - ASSET PURCHASE AGREEMENT
10.1 COMPLIANCE WITH AGREEMENT. The Buyer shall
_________________________
have performed in all material respects all obligations
which it is required to perform on or before the Closing
Date under this Agreement.
10.2 REPRESENTATIONS, WARRANTIES AND COVENANTS.
_________________________________________
There shall have been no material breach by Buyer of its
covenants to be performed prior to the Closing and
the representations and warranties made by the Buyer
herein shall be true and correct in all material respects
on and as of the Closing Date as though such representations
and warranties were made on and as of such date,
except that any such representations and warranties that
are given as of a particular date prior to the date hereof
and relate solely to a particular date or period prior to the
date hereof shall be true as of such date or period.
10.3 CERTIFICATE OF THE BUYER. On the Closing Date,
________________________
the Buyer shall have delivered to the Seller a certificate,
duly executed by an executive officer of the Buyer, as to
the fulfillment of the conditions set forth in Sections 10.1
and 10.2 hereof.
10.4 CONSENTS AND APPROVALS. All authorizations,
______________________
consents, approvals, filings and registrations of or with
domestic and foreign governmental or regulatory authorities
required to be obtained or made by the Buyer or the Seller
prior to the consummation of the transactions contemplated
hereby, including, without limitation, those authorizations,
consents, approvals, filings and registrations specifically
referred to in Schedule 5.2 (c) hereto and Section 9.1
hereof, shall have been obtained, approved or permitted to
go into effect, and shall be in effect on terms that are not
materially adverse to the Seller, and the waiting period
under the HSR Act, if applicable, shall have expired or
been terminated.
10.5 COUNCIL AND VOTER APPROVAL. The Seller
__________________________
shall have obtained the authority to sell the Assets pursuant
to an ordinance or initiative proposition approved by the
Fairbanks City Council and the majority of the qualified
voters of the Seller voting on the question not later
than October 31, 1996.
10.6 ALL PROCEEDINGS TO BE SATISFACTORY. All
__________________________________
corporate and association proceedings to be taken by the Buyer
in connection with the transactions contemplated hereby and
all documents incident thereto shall be reasonably
satisfactory in form and substance to the Seller and its
counsel, and the Seller and its counsel shall have received
all such certified or other copies of such documents as it
or they may reasonably request.
10.7 DEFEASANCE. The Seller shall not have been legally
__________
prevented from duly and validly redeeming or defeasing on the
Closing Date, in accordance with the terms thereof and the
relevant municipal ordinances, all revenue bonds of the Seller
outstanding as of the Closing Date and relating to the Assets
and outstanding on the Closing Date, using for such purpose,
if necessary, the proceeds of the Purchase Price received from
the Buyer pursuant to this Agreement.
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
23 - ASSET PURCHASE AGREEMENT
10.8 ADVERSE PROCEEDINGS. No preliminary or
___________________
permanent injunction or other order or decree by any
federal or state court which prevents the consummation
of the transactions contemplated by this Agreement
shall have been issued and remain in effect (the Seller
agrees to use its reasonable efforts to have any such
injunction, order or decree lifted) and no statute,
rule or regulation shall have been enacted, by any
state or federal Government or Governmental agency in
the United States which prohibits the consummation of
the transactions contemplated by this Agreement.
10.9 CONTINGENT CLOSING. The Closing hereunder
__________________
is contingent upon Seller Closing its Asset Purchase
Agreement with Golden Valley Electric Association and
Stock Purchase Agreement with Fairbanks Sewer and
Water, Inc.
11. CONDITIONS TO OBLIGATIONS OF THE BUYER.
______________________________________
The obligations of the Buyer to purchase the Assets
hereunder are subject to the fulfillment or waiver by
the Buyer, on or before the Closing Date, of each of
the following conditions and any other conditions
as provided for herein.
11.1 COMPLIANCE WITH AGREEMENT. The Seller
_________________________
shall have performed in all material respects all
obligations which it is required to perform on or
before the Closing Date under this Agreement.
11.2 REPRESENTATIONS, WARRANTIES AND COVENANTS.
_________________________________________
There shall have been no material breach by Seller of its
covenants to be performed prior to the Closing and
the representations and warranties made by the Seller
herein shall be true and correct in all material respects
on and as of the Closing Date as though such
representations and warranties were made on and as of
such time, except that any such representations and
warranties that are given as of a particular date
prior to the date hereof and relate solely to a particular
date or period prior to the date hereof shall be true as
of such date or period.
11.3 CERTIFICATE OF THE SELLER. On the Closing
_________________________
Date, the Seller shall have delivered to the Buyer a
certificate, duly executed by the Mayor or another
authorized representative of the Seller as to the
fulfillment of the conditions set forth in Sections
11.1 and 11.2 hereof.
11.4 CONSENTS AND APPROVALS. All authorizations,
______________________
consents, approvals, filings and registrations of or with
domestic governmental or regulatory authorities required
to be obtained or made by the Buyer or the Seller prior
to the consummation of the transactions contemplated
hereby, including, without limitation, those authorizations,
consents, approvals, filings and registrations specifically
referred to in Schedule 6.2(c) hereto and Section 9.1
hereof, shall have been obtained, approved or permitted
to go into effect on terms that are not materially adverse
to the Buyer and shall be in effect.
11.5 COUNCIL AND VOTER APPROVAL. The
__________________________
Seller shall have obtained the authority to sell
the Assets pursuant to an ordinance or
initiative proposition approved by the Fairbanks City
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
24 - ASSET PURCHASE AGREEMENT
Council and the majority of the qualified voters
of the Seller voting on the question no later
than October 31, 1996.
11.6 ALL PROCEEDINGS TO BE SATISFACTORY.
__________________________________
All City proceedings to be taken by the Seller in
connection with the transactions contemplated
hereby and all documents incident thereto shall
be reasonably satisfactory in form and substance
to the Buyer and its counsel, and the Buyer and its
counsel shall have received all such certified or
other copies of such documents as it or they may
reasonably request.
11.7 OPINION OF COUNSEL. The Buyer shall have
__________________
received the written opinion of special bond counsel
for the Seller, dated and delivered as of the Closing
Date opining that Section 11.8 has been satisfied and
that assets free and clear of liens created by or
related to bonds. In rendering such opinion, such
counsel may rely, to the extent such counsel deems
such reliance necessary or appropriate, as to matters
of fact, upon certificates of government officials and
of any officials (elected or appointed) of the Seller.
11.8 DEFEASANCE. On the Closing Date, the
__________
Seller shall have duly and validly retired or defeased
all revenue bonds of the Seller outstanding as of the
Closing Date and relating to the Assets, including
without limitation the revenue bonds listed on Schedule
7.3 and outstanding on the Closing Date, using for such
purpose the proceeds of the Purchase Price received from
the Buyer pursuant to this Agreement.
11.9 ADVERSE PROCEEDINGS. No preliminary or
___________________
permanent injunction or other order or decree by any
federal or state court which prevents the
consummation of the transactions contemplated by this
Agreement shall have been issued and remain in effect
(the Buyer agrees to use its reasonable best efforts
to have any such injunction, order or decree
lifted) and no statute, rule or regulation shall have
been enacted, by any state or federal Government or
Governmental agency in the United States which prohibits
the consummation of the transactions contemplated by
this Agreement.
11.10 THIRD-PARTY CONSENTS AND APPROVALS. There
__________________________________
shall have been obtained all consents and approvals of
third Parties required to permit the Buyer to acquire
at the Closing all of the Seller's right, title and
interest in and to the Assets (without termination or
acceleration) which are, in the Buyer's reasonable
judgment, material, individually or in the aggregate,
to the Assets or to the conduct of the business of
the Buyer, and such consents shall be in effect.
11.11 CONTINGENT CLOSING. Simultaneous with
__________________
the Closing hereunder, Seller shall close on its
Asset Purchase Agreement with Golden Valley Electric
Association and Stock Purchase Agreement with Fairbanks
Sewer and Water, Inc.
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
25 - ASSET PURCHASE AGREEMENT
11.12 NO MATERIAL ADVERSE CHANGE. There
__________________________
shall have been no material adverse changes to the
Assets as a whole or the financial position or results
of operation of the business of the Assets. Seller
shall not have suffered any material loss or damage
to the Assets that would materially impair or affect
the Buyer's ability to conduct the business after
the Closing Date.
11.13 UTILIDOR EASEMENT. The Seller and the
_________________
Buyer shall have mutually agreed to a utilidor easement
as described in Section 9.7 herein.
11.14 GLOBE ADMINISTRATIVE BUILDING LEASE.
___________________________________
The Seller and Buyer shall have mutually agreed to the
leases described in Section 9.8 herein.
11.15 RELOCATION OF MIS. The Seller shall have
_________________
complied in all respects with Section 9.9 herein.
12. TERMINATION. This Agreement may be terminated
___________
before the Closing Date:
(a) by mutual written consent of the
Buyer and the Seller; or
(b) if Fairbanks City Council and voter
approval described in Sections 10.5 and 11.5 hereof is
not obtained on or before October 31, 1996; or
(c) by Buyer or the Seller, if Closing
has not occurred one (1) year from the voter approval
described in sections 10.5 and 11.5; or
(d) by the Buyer, if any of the
authorizations, consents, approvals, filings or
registrations required herein shall have been denied,
not permitted to go into effect or obtained on terms
materially adverse to the Buyer or Seller and, if
Buyer or Seller chooses to appeal at its sole
option, all final appeals shall have been exhausted;
(e) by the Buyer, if the Seller shall have
breached any of its obligations hereunder which denies the
affected Buyer the material benefits intended by the
transactions contemplated herein; or
(f) by the Seller, if the Buyer shall have
breached any of its obligations hereunder which denies
the Seller the intended benefit of the transaction
contemplated herein.
In the event of a termination due to (a),
(b), (c), (d) or (e) then there shall be no liability
between any of the Parties, except for Seller's
obligation to return the Xxxxxxx Money and interest
thereon to the Buyer which shall be Buyer's sole
remedy. In the event of a termination due to (e),
the Seller shall return the Xxxxxxx Money in the
amount of Seven Hundred Thirty Thousand Four Hundred
Thirty-five Dollars ($730,435.00) and interest earned
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
26 - ASSET PURCHASE AGREEMENT
thereon to Buyer In the event of a termination due
to (f), the Buyer shall forfeit to the Seller its
Xxxxxxx Money and interest thereon, as a termination
fee, which shall be Seller's sole remedy.
If either the Buyer or the Seller shall
decide to terminate this Agreement pursuant to this
Section 12, such Party shall promptly give written
notice to the other of such decision. In the event
of a termination pursuant to this Section 12, the
Parties hereto shall be released from all liabilities
and obligations arising under this Agreement (other
than pursuant to this Section and Sections 15, 16
and 23 hereof) with respect to the matters
contemplated by this Agreement, other than for Buyer
or Seller's damages, if any, damages to the extent
arising from a prior breach of this Agreement.
13. AMENDMENT AND WAIVERS.
_____________________
13.1 AMENDMENTS, MODIFICATIONS, ETC. This
______________________________
Agreement may be amended, modified or supplemented only
by an instrument in writing executed and delivered on
behalf of each of the Parties hereto, which instrument
when so executed and delivered shall thereupon become
a part of this Agreement and the provisions thereof
shall be given effect as if contained in this Agreement
as of the date hereof.
13.2 WAIVERS. The representations, warranties,
_______
covenants or conditions set forth in this Agreement may
be waived only by a written instrument executed by the
Party so waiving. The failure of any Party at any
time or times to require performance of any provision
hereof shall in no manner affect the right of such
Party at a later time to enforce the same. No waiver
by any Party of any condition, or breach of any
term, covenant, agreement, representation or warranty
contained in this Agreement, in any one or more instances,
shall be deemed to be or construed as a waiver of any
other condition or of the breach of any other
term, covenant, agreement, representation or warranty
contained in this Agreement.
14. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
_____________________________________________________
All representations, warranties and covenants of the Parties
hereto contained in this Agreement or made pursuant hereto
shall terminate upon the Closing, and no action or claim may
be brought thereafter on the basis of such
representations, warranties and covenants, with the
exception of the covenants contained in Sections 3.2, 3.3,
3.4, 5.5, 5.17, 5.18, 8, 9.2, 9.10, 15, 16 and 23, which
continue for five (5) years and any representations,
warranties or covenants contained in any documents
transferring the Assets and any covenants contained in
Sections 1.3, 7.7, 7.4, 7.6, 9.5, 9.7, 9.9, 9.11, 13, 14,
16-25, which shall survive until such have been performed.
15. INDEMNIFICATION.
_______________
15.1 INDEMNIFICATION BY THE BUYER. Subject to the
____________________________
terms and conditions of this Section 15, the Buyer hereby
agrees to indemnify and save harmless the Seller and their
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
27 - ASSET PURCHASE AGREEMENT
respective affiliates, officials (elected and appointed),
directors, officers and employees ("Seller's Indemnified
Parties") from, against, for and in respect of any
and all liabilities and obligations, whether absolute,
accrued, contingent or otherwise and whether a contractual,
statutory, tax or any other type of liability or
obligation (including, without limitation, all reasonable
costs and expenses, including reasonable attorneys' fees,
interest and penalties), suffered, sustained, incurred or
required to be paid by any of the Seller's Indemnified
Parties and arising from: (1) any of the
representations and warranties, liabilities or obligations
of Buyer described herein; (2) any act or omission
by Buyer related to Assets occurring on or after the
Closing Date; or (3) the Buyer's use or conduct of the
Assets respectively on or after the Closing Date unless
such liability or obligation arises from Assets or
liabilities not expressly assumed by the
Buyer hereunder.
15.2 INDEMNIFICATION BY THE SELLER. Subject to the
_____________________________
terms and conditions of this Section 15, the Seller hereby
agrees to indemnify and save harmless the Buyer after
the Closing Date, and its respective affiliates, directors,
officers and employees (the "Buyer's Indemnified Parties")
from, against, for and in respect of any and all
liabilities and obligations, whether absolute, accrued,
contingent or otherwise and whether a contractual,
statutory, tax or any other type of liability or
obligation (including, without limitation, all
reasonable costs and expenses, including reasonable
attorneys' fees, interest and penalties), suffered,
sustained incurred or required to be paid by any of
the Buyer's Indemnified Parties and arising from:
(1) any of the representations and warranties,
liabilities or obligations of Seller described
herein; (2) any act or omission by Seller related to
Assets occurring prior to the Closing Date and not
expressly assumed by Buyer herein; or (3) the Seller's
use or conduct of the Assets respectively before
the Closing Date.
15.3 PROCEDURE FOR INDEMNIFICATION WITH RESPECT
__________________________________________
TO THIRD-PARTY CLAIMS. The liabilities and
_____________________
obligations of the Party hereto against which
indemnification is sought hereunder (the "Indemnifying
Party") with respect to claims resulting from the
assertion of liability or obligation by third parties
shall be subject to the following terms and conditions:
(a) Any Seller's Indemnified Party or
Buyer's Indemnified Party (collectively, the
"Indemnified Parties") seeking indemnification
hereunder agrees to give prompt written notice to
the Indemnifying Party of any claim by a third
party which might give rise to a claim based on
the indemnity agreements contained in Section 15
hereof, stating the nature and basis of said
claim and the amount thereof, to the extent known.
The Indemnifying Party shall satisfy its obligation
to indemnify the Indemnified Party under this Section
within thirty (30) days after receipt of the
foregoing notice unless the Indemnifying Party shall
have elected to defend in good faith such claim
as provided in subsection (b) hereof.
(b) In the event the Indemnified
Party shall notify the Indemnifying Party of any
claim pursuant to subsection (a) hereof, the
Indemnifying Party shall have the right to elect
to defend such claim (including all actions, suits,
proceedings and all proceedings on appeal or
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
28 - ASSET PURCHASE AGREEMENT
for review which counsel deem appropriate), with
counsel reasonably satisfactory to the Indemnified
Party by written notice to the Indemnified Party
within 30 days after receipt of such notice. The
Indemnified Party shall make available to the
Indemnifying Party and its attorneys and accountants
all books and records of the Indemnified Party
relating to such proceedings or litigation, and the
Parties hereto agree to render to each other such
assistance as they may reasonably require of
each other in order to ensure the proper and
adequate defense of any such action,
suit or proceeding.
(c) So long as the Indemnifying Party is
defending in good faith any such claim, the Indemnified
Party shall not compromise or settle such claim, without
the written consent of the Indemnifying Party.
15.4 MUTUAL INDEMNIFICATION. The Buyer and the Seller
______________________
hereby agree that if either the Buyer or the Seller
takes any action opposing approval of the transactions
contemplated by this Agreement, either in a regulatory
proceeding relating to a consent required hereunder or
litigation arising therefrom, the Party hereto taking such
action will indemnify the other Party hereto for all
costs and expenses, including reasonable attorneys' fees,
incurred by such Party in connection with the
transactions contemplated by this Agreement, including
all costs and expenses arising from such regulatory
proceeding or litigation.
15.5 HAZARDOUS SUBSTANCES INDEMNIFICATION. Under
____________________________________
Section 5.17 of this Agreement, Seller makes
representations and warranties to Buyer concerning the
compliance of the Assets with Environmental Laws and the
freedom of the Assets from Hazardous Substances.
This Section 15.5 shall specifically govern
the Parties obligations for indemnification
concerning Hazardous Substances and Environmental
Laws. The procedures set forth in Section 15.3
will be applicable to indemnification sought under
this Section 15.5.
With respect to Assets acquired by Buyer hereunder,
other than real property acquired from Seller in fee
simple, subject to the terms and conditions of this
Section 15, Buyer hereby agrees to indemnify and save
harmless, the Seller and the Seller's Indemnified
Parties from, against, for and in respect of
any and all liabilities and obligations, whether
absolute, accrued, contingent or otherwise and whether
contractual, statutory, tax or any other type of
liability or obligation (including, without
limitation, all reasonable costs and expenses,
including reasonable attorneys fees, interest and
penalties), suffered, sustained, incurred or
required to be paid by any of the Seller's Indemnified
Parties relating to Hazardous Substances or
breach of Environmental Laws arising from the Buyer's
use or conduct of these Assets on or after the Closing
Date. With respect to Assets acquired by Buyer
hereunder, other than real property acquired from
Seller in fee simple, Seller hereby agrees to
indemnify and save harmless, Buyer and Buyer's
Indemnified Parties against all of the foregoing
arising from Seller's use or conduct of these
Assets before the Closing Date.
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
29 - ASSET PURCHASE AGREEMENT
With respect to the real property acquired by
Buyer from Seller in fee simple, subject to the terms
and conditions of this Section 15, Buyer hereby
agrees to indemnify and save harmless the Seller as
set forth in the immediately preceding paragraph,
except that the indemnification for Hazardous
Substances and violation of Environmental Laws shall
apply to any liabilities and obligations, whether
they arise from Buyer's or Seller's use or conduct
of these Assets at any time.
15.6 LIMITATION ON INDEMNIFICATION. Notwithstanding
_____________________________
any other provision of this Agreement, Buyer and Seller
shall not be entitled to make a claim under this Section
15 and/or Section 3.4 until the aggregate amount of
costs and expense for the indemnifiable matter incurred
exceeds $25,000 per claim. Seller further agrees that
when the aggregate of Buyer's $25,000 claim(s) payments
exceeds $250,000, Seller shall fully indemnify, defend
and hold Buyer harmless for all amounts over $250,000.
16. EXPENSES. The Buyer and Seller shall pay its own
________
expenses arising out of or incidental to this Agreement,
whether or not such transactions are consummated,
including, without limitation, all reasonable
out-of-pocket expenses in relation to the transactions
contemplated by this Agreement, including, but not
limited to, costs for legal, financial and other
advisors relating to solicitation of bids, contract
negotiations, regulatory approval and any litigation
relating to or arising out of the transactions
contemplated by this Agreement.
17. ASSIGNMENT. This Agreement may not be assigned
__________
by any Party hereto without the prior written consent
of the other Party, except that the Buyer may assign
its rights and delegate its obligations hereunder to
one or more direct or indirect wholly owned
subsidiaries of the Buyer, provided that no such
assignment or delegation shall relieve the Buyer of
its obligations hereunder, and provided further, that
in the event of any such assignment or delegation,
the representations, warranties, covenants and
agreements of the Buyer hereunder shall be deemed,
unless the context requires otherwise, to be the
representations, warranties, covenants and
agreements of both the Buyer and such subsidiary
or subsidiaries. Subject to the foregoing, this
Agreement shall bind and inure to the benefit only
of the Parties hereto and their respective
permitted successors and assigns.
18. ENTIRE AGREEMENT. This Agreement, together with
________________
the Attachments, Schedules and Exhibits hereto and
the other documents and instruments referred to
herein, sets forth the entire agreement and
understanding of the Parties hereto in respect of
the transactions contemplated hereby, and
supersedes all prior agreements, arrangements and
understandings relating to the subject matter hereof.
19. THIRD-PARTY BENEFICIARIES. Nothing in this
_________________________
Agreement is intended or shall be construed to
give any person any legal or equitable right,
remedy or claim under or in respect of this
Agreement or any provision contained herein,
other than the Parties hereto.
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
30 - ASSET PURCHASE AGREEMENT
20. COUNTERPARTS. This Agreement may be executed
____________
in any number of counterparts, all of which
together shall be considered to constitute
one instrument.
21. SECTION HEADINGS. All section headings are
________________
inserted for convenience only and shall not
control or affect the meaning or construction
of any provision of this Agreement.
22. APPLICABLE LAW. This Agreement shall be
______________
governed by and construed in accordance with
the laws of the State of Alaska.
23. CONFIDENTIAL INFORMATION. Each Party to
________________________
this Agreement agrees and covenants with the other
Parties to this Agreement that it shall use, and
shall cause its Representatives (as hereinafter
defined in this Section 23) to use, all
Proprietary Information (as hereinafter defined
in this Section 23) relating to the other Party,
acquired by any of them in the course of
negotiations with or examination of the other
Party in connection with the transactions
contemplated by this Agreement and shall cause
all Proprietary Information obtained by them in
the course of such negotiations and
examinations to be treated as confidential.
If either the Buyer or the Seller shall
terminate this Agreement pursuant to Section 12
hereof, each Party shall cause to be delivered
to the other (or, in the case of the summaries
and work papers hereinafter referred to,
destroyed) all written and other tangible
Proprietary Information obtained by it,
including without limitation, all copies and
summaries thereof and all work papers based
thereon and containing such Proprietary
Information, whether so obtained before or
after the execution of this Agreement,
and each Party agrees that it shall not
itself, and shall cause its Representatives
not to, use or disclose, directly or
indirectly, any Proprietary Information so
obtained, and that it shall have, and shall
cause its Representatives to have, all
Proprietary Information kept confidential
and not be used in any way which is
detrimental to the other Party or Seller.
Notwithstanding anything in this Section 23
to the contrary, either Party may use and
disclose any Proprietary Information which
(a) is already in its possession, provided that
such information is not known by the Party using
or disclosing such information (the
"Disclosing Party") to be subject to a
confidentiality agreement with or other obligation
of secrecy to the Party not using or
disclosing such information (the "Non-Disclosing
Party") in violation of this Section 23, (b)
becomes generally available to the public other
than as a result of a disclosure by the Disclosing
Party, (c) becomes available to the Disclosing
Party on a non-confidential basis from a source
other than the Non-Disclosing Party or any persons
affiliated in any capacity with the Non-Disclosing
Party, provided that such source is not known by
the Disclosing Party to be bound by a
confidentiality agreement with or other
obligation of secrecy to the Non-Disclosing Party
or another Party; (d) required to be disclosed
in order to seek any consent or approval required
herein; or (e) required by law to be disclosed.
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
31 - ASSET PURCHASE AGREEMENT
Except as otherwise provided herein, no
representation or warranty is made as to the
accuracy or completeness of the Proprietary
Information.
Neither Party to this Agreement nor any of its
respective Representatives shall have any
liability to the other Party to this
Agreement or any of its respective Representatives
arising from the use of the Proprietary
Information in accordance with this Agreement.
Without prejudice to the rights and remedies
otherwise available to any Party to this
Agreement, each Party to this Agreement shall be
entitled to equitable relief by way of
injunction if the other Party to this Agreement
or any of its Representatives shall breach or
threaten to breach any of the provisions of
this Section 23. In addition, each Party to this
Agreement agrees to indemnify and hold harmless
the other Parties to this Agreement from and
against any claims from third parties arising as
a result of the Party's violation of this Section 23.
For the purposes of this Section 23, with
respect to any person, the term "Representative"
shall mean such person's affiliates (as defined
in the Rules and Regulations promulgated under
the Securities Act of 1933, as amended), and the
directors, officials (elected and appointed),
officers, employees, agents and other
representatives of such person and such
person's affiliates.
For the purposes of this Section 23, the term
"Proprietary Information" shall mean collectively
all discussions and negotiations and that written
information marked "Confidential" or "Proprietary"
or the like which the Seller has been, are and
will be providing to the Buyer and its
Representatives with respect to the transactions
contemplated by this Agreement and all such
information which the Buyer has been, is and will
be providing to the Seller and its Representatives
with respect to the transactions contemplated
by this Agreement.
24. NOTICES. Any notice given under this Agreement
_______
shall be in writing and shall be delivered
personally, transmitted by first-class mail or
facsimile. The address for service of each Party
shall be its principal place of business as
identified herein or such other address as has
been previously notified to the other
Parties in writing and served on all Parties:
Pacific Telecom, Inc.
000 Xxxxxxxx
Xxxxxxxxx, XX 00000
ATTN: Chief Financial Officer and Executive Vice President
and Vice President of Regulatory and Legal Affairs
Facsimile (000) 000-0000
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
32 - ASSET PURCHASE AGREEMENT
City of Fairbanks
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
ATTN: Mayor
with a copy to:
Office of the City Attorney
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
All notices shall be deemed to be effective upon
the time of delivery, if personally delivered or
at the time of automatic acknowledgement of
receipt, if transmitted by facsimile.
25. FURTHER ASSURANCES From time to time as and
__________________
when requested by one of the Parties, the other
Party will execute and deliver, or cause to be
executed and delivered, all such documents and
instruments a may be reasonably necessary to
consummate and make effective the transactions
contemplated by this Agreement.
IN WITNESS WHEREOF, each Party hereto has caused
this Agreement to be duly executed as of the date
first above written.
CITY OF FAIRBANKS PTI COMMUNICATIONS OF ALASKA, INC.
By: XXXXX X. XXXXX By: XXXXXXX X. XXXXXXXX
________________ ____________________________
Title: Mayor Title: Chairman, President & Chief
_____________ __________________________
Executive Officer
_________________________________________________________
PTI COMMUNICATIONS OF ALASKA, INC.
33 - ASSET PURCHASE AGREEMENT
